Judicial precedent

HideShow resource information
View mindmap
  • Judicial Precedent
    • Law reports
      • A law report is where judges write down facts of the case which can then be seen by anyone from the court service website. the use of law reports is so that the justice system can adapt and expand
    • Avoiding precedent
      • Distinguishing
        • Finding difference between cases
          • An example of this is in BALFOUR V BALFOUR where the couple were married when they made a decision - where the husband paid his wife £30 a month whilst he was away on business. Once the couple had separated, the payments stopped. The judge ruled this as fair as any decisions made whilst being married aren't legally binding.
            • This is compared with MERRITT V MERRITT where a decision was made whilst the couple were separated; to give money to his wife. the husband then took this to court but the judged ruled that he must pay his wife as any decisions made whilst separated are legally binding.
      • Over-ruling
        • Overruling is when a law is changed when there is something wrong with it.
          • Hedley byne v Heller & partners overruled Candler v Crane and Christmas. In the case of HB v HP the bank had a disclaimer when giving out credit rating. The credit rating they gave was wrong but they wasn't liable. The courts said that if it wasn't for the disclaimer then they would be liable.
      • 3 Exceptions in Young v Bristol aeroplane
        • 2) if the decision conflicts with the supreme court
        • 1) If the decision was made in error (PER INCURIAM)
        • 3) if the decision conflicts with itself
          • An example of this is in R V SPRATT and R V SAVAGE where the defendants' court dates were on the same day, at the same time for the same offence but at a different court. the decisions of the courts were different therefore creating a conflict.
            • Then in R V PARMENTER the courts were allowed to chose which case to go with (whether is be SPRATT or SAVAGE) The court of appeal chose SPRATT which is now the binding precedent.
      • Practice statement 1966
        • The practise statement is in use by the supreme court. This allows the court to not be bound upon its own decisions. It is used rarely and where the law needs a change.
          • An example is in RONDEL V WORSEY where you wasn't able to sue a barrister for legal negligence. This was overruled by the practise statement in HALL V SIMMONS. You can now sue a barrister for legal negligence.
      • Advantages
        • REPLACES UNFAIR LAWS
          • R V R marital rape case.
        • POTENTIAL FOR GROWTH
          • Can develop the law. E.g HALL V SIMMONS
      • Disadvantages
        • UNCERTAINTY
          • Hard to predict the outcome of a case when trying to avoid precedent.
        • RETROSPECTIVE
          • Applies to what has already happened. it was legal when the person had committed the crime. R V R - marital rape case.
    • Advantages
      • 2) CONSISTANCY & FAIRNESS
        • Rules apply to everyone and nobody is treated differently.
      • 1) CERTAINTY :
        • As courts follow past decisions it is certain what the outcome will be therefore solicitors are able to advise their clients on the likely outcome of the case.
      • 3) TIME SAVING:
        • Where a principal has been established and cases are of similar facts then courts are unlikely to go through the expensive and lengthy process of litigation
    • Disadvantages
      • COMPLEXITY
        • Judgements can often have no clear direction between obiter dicta and ratio decidendi
      • RIGIDITY
        • Changes in the law will only take place if clients have the courage, time and money to take it to the supreme court.
      • SLOWENESS OF GROWTH
        • Only 50 cases get to the supreme court per year so changes in the law may take longer.
    • Principals of Judicial precedent
      • Stare decisis
        • "stand by what has been said"
          • Where judges must follow the decisions of the previous courts to promote certainty and fairness.
      • Ratio decidendi
        • Means "reason for deciding". This is the binding part of the precedent. Binding precedents must be followed.
          • An example of this is is DONOGHUE V STEVENSONthis case decided the neighbour principal where you owe a duty of care to not harm your neighbour. In this case it is the manufacturer to the consumer as the claimant found a snail in her ginger beer.
      • Obiter dicta
        • Stands for "other things said"
          • This is the persuasive precedent where judges can follow hypothetical situations with they want to.
            • An example of this is in HILL V BAXTER where a driver had fell asleep at the wheel. He was found guilty but in this case the judge gave hypothetical situations where the defendant wouldnt be liable such as a reflex action e.g swarm of bees entering the car causing you to crash.
    • Judicial precedent is where judges have to follow precedents set by previous cases which are similar to each other. This is dependant upon the superior courts and law reports.

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Judicial precedent resources »