OCR LAW G152 Revision Notes on Judicial Precedent

All the notes I made on this topic, hope it helps, will be uploading more as i make them :)

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  • Created on: 04-02-12 11:11
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Law Revision Notes ­ G152 Judicial Precedent
Definition ­ Where past decisions of judges are followed in future cases where
the facts of the case are similar. Also known as Case law or common law.
Based on 3 things:
1) The Judge's Judgment 3 parts
Res judicata the outcome of the case ­ `the judge finds for...'
Ratio decidendi the legal principle use to reach the decision, this is the binding part
of the judgement that forms the binding precedent that must be followed
Obiter dicta things said by the way, they are not relevant to the parties but may help
judges in other cases. Forms a persuasive precedent.
o 2 types
Widens the principle laid down in the ratio
Discusses alternative situations eg. Hedley Byrne v Heller (1964) judge
said if there hadn't been a disclaimer, bank would have been liable for
advice.
Original Precedent
If a point of law has never been decided before then whatever the Judge decides forms a new
precedent for future cases to follow.
If there are no cases to follow the Judge is likely to look as similar cases to base his decision on.
Eg. Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation
(1995) ­ trying to decide whether interference to television reception due to a large building
was classed as actionable private nuisance. Hundreds of citizens sued when tower built by the D
interfered with their TV.

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PERSUASIVE PRECEDENT ­ not binding in court but a Judge may choose to follow
it. See Homework for essay question
The following may form a persuasive precedent:
o Obiter dicta of a higher court
Eg. OD of DvS followed in Home Office v Dorset Yacht Company (1970) where
the neighbour principle was used. Reasonable care was not taken to prevent
damage to the D.Y.C as the guards of prisoners fell asleep.
Eg.…read more

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The Hierarchy of the Courts…read more

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Every court is bound to follow any decision made by a court above it in the
hierarchy
Appellant Courts are bound by their own past decisions
The Supreme Court
o Previously was bound by its own past decisions, but this made the law inflexible and it
couldn't adapt fast enough to social change, as a new Act would have to be passed
through Parliament.…read more

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A good system of law reporting
In order to follow past decisions there must be an accurate record of what the decisions were.
From 1275 ­ 1535 these were recorded in Year Books which contained short reports of cases
written in French
From 1535 ­ 1865 cases were reported to business who then sold them onto lawyers, the detail
and accuracy of reports varied greatly but some are still used today.…read more

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Advantages and Disadvantages of Precedent
Advantages
Certainty
o As the court follows past decisions people know what the law is and how it will be
applied to their case; lawyers can advise clients better and people can operate their
businesses knowing what the law it. This was pointed out in the Practice statement.
Consistency and fairness in the law
o It is just and fair that similar cases should be decided in a similar was.…read more

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