Judicial Precedent (2)

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  • Judicial precedent
    • Persuasive precedent
      • Where a judge can look at legal principles adopted in previous cases, and if persuaded by the legal reasoning, can choose to follow it; they are not bound by the previous decision
      • Ratios from decisions of courts lower in the hierarchy
        • CASE: R V R 1991
          • defendant was charged with attempted **** of his wife. The couple were separated but had no formal or legal agreement. The HOL overturned the exception of matrimonial **** and the conviction was upheld
        • This is especially so between the UK Court of Appeal and the UK Supreme Court.
      • A dissenting judgement in the House of Lords
        • CASE: Rose and Frank V JR Crompton & Bros ltd 1924
          • the defendants terminated an agreement early and the claimants brought an action for breach, However, the pledge clause used the presumption which usually exists in commercial law that the parties intended to be criminal. The agreement has no legal effect.
        • This is where a judge on a panel of judges disagrees with the majority and must give his legal reasoning: other courts may be persuaded to use this reasoning in a case
      • Decisions from courts in other jurisdictions
        • R V Bentham 2005
          • the defendant was charged with being in possession of an 'imitation firearm'. The courts decided that the defendant couldn't be in possession of his own body
        • Especially where countries use the same principles eg. Canada and the UK
      • decisions of the judicial committee of the Privy council
        • The Wagon Mound (no1) 1961
          • decided the Re Polemis was no longer regarded as good law. The defendant's vessel leaked at a wharf in Sydney Harbour causing a fire which caused the destruction of some boats at the wharf
        • This is due to the fact that this court is composed of many of our senior judges and their decisions are generally considered highly persuasive
      • Obiter Dicta Statements from courts higher in the hierarchy
        • R V Gotts
          • The defence of duress wasn't available to a 16 year old who was ordered by his father to kill his mother, otherwise he'd shoot him
        • These statements contain the thinking of the most senior courts and judges
    • Original precedent
      • An original precedent is the first of its kind. This is set when there are no previous similar cases or relevant Acts of Parliament.
      • The way in which a judge will come to a decision in this situation is to look at previous similar cases. The judge sets out a new law which is a binding precedent.
      • often due to changes in technology or society
      • A judge may look at cases which are closest in principle, this is called reasoning by anology
      • CASE: Hunters and Others V Canary Wharf
        • defendants claimed that the erection of the Canary Wharf tower interfered with their TV reception. The courts decided that there's no right of action in nuisance for interference with the TV reception as they had to have an interest in property to bring an action in nuisance
      • CASE: Re S
        • The labour of a woman was obstructed and both of their lives were at risk. There was evidence that is was necessary to perform a C section but both of the parents refused consent on religious grounds. The health authority apply to the court without her knowledge, and they granted the declaration.
          • In a situation where the lives of the unborn child and the mother are at risk, it is open to the court to make a declaration that the operation can go ahead
      • CASE: Rylands V Fletcher 1868
        • The defendants employed independent contractors to build a reservoir on their land. The contractors found disused mines and failed to seal them properly, and filled the reservoir with water. Water flooded through the mineshaft and flooded the plaintiff's mines on the adjourning property.
          • Liability under  Rylands v Fletcher is now regarded as a particular  type of nuisance. It is a form of strict liability, in that the defendant may be liable in the absence of any negligent conduct on their part.
            • Requirements  1. Accumulation on the defendant's land             2. A thing likely to do mischief if it escapes      3. Escape   4. Non-natural use of land             5. The damage must not be too remote
    • Binding Precedent
      • A binding precedent is one that must be followed by that court and all courts below it. The ratio decidendi forms a binding precedent which is what the judge must follow in future cases of similar fact.
      • In Donoghue v Stevenson (1932) the judge’s ratio decidendi formed a binding precedent for future cases on similar fact. In the later case of Grant V Australian knitting Mills 1936 the facts were similar and since the ratio decidendi formed a binding precedent, the judge was bound to follow the same decision.


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