RD = reason for decision
OD = other things said, by the way
Donoghue v Stevenson 1932:
- Decomposed snail
- RD: manufacturers owe duty of care
Daniels v White 1938:
- Throat burn after lemonade
- Corrosive chemical
- Followed above RD
- Judges decisions
- RD & OD
RD Cases: OD Cases:
Howe 1987: (duress) Gotts 1992:
- Tortured man - Dad ordered M's death
- D killed V, claimed duress. - Dad threat D, shoot M
- RD: duress never defence - M stabbed, alive.
- OD: nor manslaughter/att.murder - OD from Howe
Brown 1983: (sado) Wilson 1996:
- Sadomasochistic, consented. - Branded gf's bottom w/consent
- RD: cant consent violent sex - NG as OD from Brown
- OD: can to piercings/tattoos
Smith 2006 (ponytail):
- Bf cut ponytail
- RD: hair part of body, ABH.
Original Precedence: Binding Precedence: Persuasive Precedence: - NO similar case - Followed by lower courts - May persuade below
- NEW law - RD’s - OD’s - (Howe, Brown, D v S)
SC & Precedent:
- Top of courts - Lower courts follow - 1898-1966 follow own decisions (London Tram v Council) - Law certain - 1966 PS (Lord Chancellor) - "when appears right"
Use of PS:
Addie v Dumbreck 1929: British Railways v Herrington 1972:
- Mineshaft trespassing - Fence gap, child injured
- Parents responsible - Business responsible (society changed) Rondel v Worsley 1967: Hall v Simons 2000:
- Lawyers not sued (negligence) - Doctors sued
- Duty “fearlessly & independently” - Society changed
COA & Precedent Own decisions?
- Appeal cases - Generally must follow
- 2 divisions - Decided in Young v Bristol Aeroplane Co 1944
- Lower courts must follow - Separate divisions dont bind
1. Conflicting COA decisions
2. COA conflicts with SC
3. Decision per incuriam
4. Injustice to D/liberty at stake
HC & Precedent:
- QB, family, chancery
- Follow own decisions (appeal)
- Young 1944 applies
- COFI dont have to follow own decisions
Lower Courts & Precedent:
- Crown, mag, county
- Not binding
- Accurate reports kept - 19th century, privately published - Media, papers, online
- Case name - Court - Judge name - Date - Fact summary - RD & OD
- All judges - 2 cases - Main device - Material facts differ - B v B 1919 & M v M 1971
B's were married whereas M's were separated & intended to create legally binding contract.
- Higher doesnt follow itself/lower - Hedley Byrne v H & P 1964 (HOL) > Candler v Crane Xmas. Can be liability for making a negligent mis-statement
- Facilitates departure from prec in future - Judge thinks precedent is wrong - Comments persuasive - RD in Anns v MLBC - HOL overruled 12 yrs later in Murphy
- Higher doesnt follow lower in same case - Opposite verdict
- Fitz (homosexual partner tenancy) - Rent Act 1977 - HOL reversed
- Courts follow past decisions
- People know law & application
- Lawyers can advise, knowledge of outcome
- "Just & fair" that cases ruled same
- Two sporting teams equally
- consistency = credibility
- HOL use PS to change/overrule
- Distinguishing ability = freedom to avoid past
- Precedent = useful, quick device
- Avoids lengthy process
- 500,000 cases
- Hard finding relevance (judgements)
- Couldn't find RD in Dodd's case 1973
- No comment distinction
- "Hair splitting"
- Areas become complex
- Differences may be small and illogical to distinguish
- B v B & M v M
- Courts following courts
- COA follow themselves
- Judges aware law needs reform (Anns = council. Murphy = builders)
- No change unless hearing case (50 annualy @ HOL)
SCT: (below 5k/1k PI)
- DIY, no lawyers, no legal aid, district j, costs not claimed by winners, county, easy.
FT: (5K-25K/over 1k PI)
- 30 weeks, 1 day trial, lawyers used, more complex, circuit j, county.
MCT: (over 25k)
- Most complex, highest value, HC = HC judge, CC = circuit, PI over 50k = HC.
- Success prospect
- Permission (COFI/appeal court)
- Access to Justice Act 1999
- Review = skeletal arguments
- CC > HC > COA > SC
- HC > SC (public interest matter)
- Available for civil cases
- Community Legal Service
- If strong chance of success
- If wrong decision made/wrong procedures
- Compensation. (D < C)
- Court can serve injunctions/complete conracts
- Experience of lawyers
- Correct guidance
- Decision with explanation
- POL highlighted
- Remains lengthy process
- Large claims = much longer
Lack of Knowledge:
- Judges = limited technical knowledge
- Sometimes rely on appointed expert
- Civil courts freely open to public/media
- Stress/embarrassment for parties
- Complexity of law = complicated process
- Lawyers needed.
- Self rep = disadvantaged
- Judicial bodies deciding on desputes
- Rent/employment/immigration = admin
- Professional/FA = domestic
- 1st tier = 6 chambers
- Upper = 4 chambers
- Chairperson (judge)
- 2 lay people, witnesses called
- Individual facts, chairperson not bound by evidence
- Precedents not always followed
- No fee's, self rep
- Rules of natural justice
- All in public excl. permission cases:
* public order interest
* protects right/privacy.
- Decisions appealed
- Chairperson has expertise
- E.g. employment = experience lawyer in area
Reason for Decision
- s10 Tribunals & Enquiries Act 1992
- Increases understanding
- No fee charged & no rep required
- Funding sometimes
- Chairperson/lay people dress informally
- Less daunting, friendly, relaxed.
JP 13 d
- Not bound by rules of JP
- Uncertainty in future
Lack of legal aid:
- Unavailable for majority of cases
- Disadvantaged society members affected
- Cases of public importance
- High profile not always given attention deserved
- Different routes/rights = complications
- Diff cases @ diff appeal courts
- Low key cases, neighbour disagreements, shop/customer.
- Lawyers for letter.
- Write/email/phone/face to face compromise.
- Couples, finance, children.
- Resolved? Written down, binding. Not? Court/tribunal.
- Mediator, lawyers discouraged.
- Neutral ground, 'go-between', passes messages, no opinions/advice.
- Industrial disputes, employment.
- Agree? Legally enforcable.
- Conciliator, parties, representatives.
- Actively involved, advice, suggestions.
- Commercial contracts, arb clauses.
- Indep arb gives binding 'award'
- Arb = specialist. Appointed in contract/professional bodies.
- Arb's named, power to pay, private, witnesses, appeal if serious irregularity AA act 1966 s68.