Judicial Precedent NEW

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  • Created by: es_103
  • Created on: 02-05-16 07:46

Original Precdent

Original Precedent

A new point of law which has never been decided before as there are no previous cases

- a judge may look at a similar case and decide (known as reasoning by analogy)

for example- Donoghue v Stevenson

that a manufacturer of a product is liable to the end consumer of that product

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Binding Precedent

Binding Precedent

A precedent from an earlier case which must be followed and no exception applies even if the judge disagrees with legal principle

Only binding if the case is similar to the original case heard and if a higher court (sometimes) has made the earlier decision

for example- Re S (adult refusal of medical treatment) (1992)

medical treatment (a Caesarean section) against the mother's wishes was lawful based on the best interests of the child

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Persuasive Precedent

Persuasive Precedent

Not binding on a court but judges may wish to apply it in later cases as they feel it is the correct principle so they are persuaded

for example- R v R (1991)

the HoL agreed with the CA in the ruling that a man could be guilty of ****** his wife

comes from a variety of sources

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-Obiter Dicta from a decided case

  • statements made obiter dicta (esp persuasive when they contain thinking of most senior courts and judges)

e.g. DPP v Smith (2006)

If a paint or another unpleasant substance were to be put on the victim's hair; amount to actual bodily harm

Persuasive especially when they contain the thinking of mist senior judges and courts

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-Dissenting judgements from senior judges

  • An explicit disagreement by one or more judges with the decision of a majority on a case before them
  • Possible that another are persuaded by the comment
  • HoL decision Hedley Byrne v Heller and partner (1964) accepted Lord Denninghams dissenting judgement Candler v Crane Christmas (1951)
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-Judicial Committee of the Privy Council

Persuasive as judges are members of the Supreme Court so their judgements are treated with respect and may often be followed

The Wagon Mound (no1) (1961) regarding remoteness of damage in negligence

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-Courts in other countries

Another country who uses the same idea of common law in our system , their decisions may be considered

-applies especially to common wealth countries (Canada & Australia)

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-Courts in lower hierarchy

  • Judgement in lower courts may persuade a higher court
  • R v R (1991)
    the HoL agreed with CA in ruling that a man could be guilty of ****** his wife
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