JUDICIAL PRECEDENT (1)

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  • Judicial precedent
    • Hierarchy of the courts
      • 2) The House of Lords
        • most senior court in England and Wales
        • Binding on all other courts in the English Legal System
        • Are able to use the practice statement to overrule past decisions; used with caution
      • 3) Court of appeal
        • 2 divisions: criminal and civil
        • Each division isn't bound by eachother
        • Must follow their own past decisions, although there are some exceptions
      • 4) Divisional Courts (of the High Court)
        • bound by past decisons
      • 5) All other courts
        • rarely set precedent
        • bound by past decisons
      • 1) The European Court of Justice
        • can overrule their past decisions
    • The doctrine of Judicial Precedent
      • based on the principle that legal decisions made by a judge in a case (common law, judge made law, case law) set out precedents which must be followed by that court and all courts below it in cases of similar fact.
      • A judgement of a court of law cited as an authority for deciding a 2nd case with a similar set of material facts; the first case serves as an authority for the legal principle embodied in the second decision
        • CASE: Donoghue V Stephenson 1932
          • a woman visited a cafe with her friend and she bought some ginger beer. She fell ill as the beer contained a decomposed snail, so she sued the manufacturer for negligence.
          • CASE: Grant V Australian Knitting Mills 1936
            • the defendant has bought an undergarment from a retailer and contracted dermatitis from it as a result of present excess sulphite. The defendant was found liable since they owed a duty of care towards the consumer
      • ‘Stare decisis’ means ‘let the previous decision stand’ and refers to when a judge makes a point of law in a case, this must be followed by a judge in similar cases.
    • Parts of the judgement
      • ratio decedendi
        • Binding
        • in giving a judgement, the judge will give the material facts of a case, the law applicable and the legal reasoning
        • "any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusions
      • obiter dicta
        • Persuasive (speculation)
        • Any observation made by the judge on a legal question suggested by the case before him
      • CASE: R V Howe
        • RATIO: duress couldn't be used as a defence to the charge of murder
        • OBITER: duress wouldn't be available as a defence to someone charged with attempted murder
        • obiter applied in R V GOTTS
      • CASE: Re A
        • RATIO: the passive euthanasia was necessary to save the other twin (they shared a vital artery)
        • OBITER: If they were brought to court criminally they have the defence of necessity
      • CASE: Donoghue V Stephenson
        • OBITER: speculation of who the neighbour is- any person affected by their actions
        • obiter applied in Shaw V DPP
        • RATIO: manufacturer should owe a duty of care to any person affected by their actions
  • CASE: Donoghue V Stephenson
    • OBITER: speculation of who the neighbour is- any person affected by their actions
    • obiter applied in Shaw V DPP
    • RATIO: manufacturer should owe a duty of care to any person affected by their actions

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