Judicial Precedent

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  • Created on: 30-12-11 13:31

What is Judicial Precedent?

Judicial Precedent refers to the source of Law where past decisions of Judges create Law for future cases to follow.  

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In order for Precedent to operate it needs two thi

Ratio Decidendi - A speech made by the judge giving the decision, and more importantly, explaining the reasons for that decision.

Obiter Dicta - This refers to the remainder of the judgement, and in English translates to "Other things said". This can also be used as Persaussive precedent to follow. Obiter Dicta is essentially what would have happened if the facts of the case had been different

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There are 3 types of Precedent, what are they and

Original Precedent -- If the point of Law in a case has never been decided before then whatever the judge decides will form a new Precedent for future cases to follow, i.e.  it is an original Precedent. 

 Binding Precedent - If in the earlier case Precedent is set (e.g. Original Precedent) then judges in later cases must follow this precedent whether they agree with it or not as it is binding, on the condition that the facts are similar in both the earlier and the later cases. Binding precedent comes from courts higher in the hierarchy.

Persuasive Precedent - This is Precedent that is not binding on the Court, but the judge may consider it and decide that it is the correct principle so he is persuaded that he should follow it. 

  

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What are the five sources or Persuassive Precedent

5 sources:

- Courts lower in the hierarchy (R v R 1991 - HOL took precedent from COA)

- Decisions of the Judical Committee or Privy Council (R v Mohammed 2005 - COA   took precedent from the Privy Council in Holly v Jersey)

- Statements made in Obiter Dicta (HOL took precedent from R v Howe on the law     of duress in R v Gotts)

- A dissenting judjement (Where a case has been decided by a majority of judges           e.g. 2-1 in the COA and the case goes to the Supreme Court, it is possible that the      Supreme Court may prefer the dissenting judgment from the 1 judge rather than the  opinion of the 2 judjes.)

- Courts in other Commonwealth Countries (E.g. Autraila, Newzeland, Canada        etc.)

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Give the order of the court Hierarchy, bottom to t

European Court of Justice

Supreme Court (previously HOL)

Court of Appeal

High Court

Crown Court

Magistrates Court

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What was the practise statement?

This was issued by the Lord Chancellor in 1966 and allowed the HOL (now supreme court) to depart from its previous decisions if it felt that it was right to do so.

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Describe the timeline of use of the Practise State

Conway V Rimmer (1968)

Herrington V British Railways Board (1972) - Departed from Addie v Dumbreck

Jones V Secretary of State for Social Services (1972) - Departed from Re: Dowling (1967) regarding the National Insurance Act 1946

Milangos V George Frank (1976) - compensation paid in sterling

Pepper V Hart (1993) - practise statement used to allow Hansard

Horton V Sadler (2006) - Departed from Walkley v Precision Forgings regarding the Limitations Act (1980)


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What are the three rules of Youngs Case?

Youngs Case Rules:

-        There are 2 conflicting decisions in the past whereby the court can choose which decision to follow

-        Where there is a decision that overalls the court of appeal, the court of appeal must follow the decision of the HOL in all future cases, and not their own previous decisions

-        Where the previous decision was made “per-incuriam”

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Give 3 examples of when youngs case was used?

Davis v Johnson - The interpretation of the Domestic violence and matrimonial proceedings act was under dispute. The COA tried to depart from its previous decision but the HOL dismissed this because there was no rule that applied to youngs case. The rules in youngs case were "Unaminously, Unequivically and Expressively" reaffirmed the rule

Rickards v Rickards - This was where the youngs case was used to depart from the previous decision because it was made per incurium

Williams v Fawcett - This was where the youngs case was used to depart from previous the prevision decision because it was misunderstanding

Cassel v Broome - This is where the COA tried to depart from the HOL previous decision but this went against the rules in youngs case and so was dismissed. 

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give the rules and a case to demonstrate the crimi

As well as using the rules in youngs case the court can also depart from a previous decision if it believed it was misunderstood as a person liberty is at steak. 

Case:  Shivpuri v R 1986

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Name the three ways precedent can be avoided and d

Distinguishing - This is where as long as the judge can see there are differences in the material facts of one case from another, he/she does not have to follow the previous precedent set

Overalling - This is where the a court higher in the hierarchy, in a later case states that the court bellow it was wrong to make the decision they did in the earlier case

Reversing - This is where a case may go to appeal e.g. from high court to COA and the COA can overturn the decision made by the high court, on the basis that it was wrong. 

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Give a case example for each method of avoiding pr

Distinguishing - Merrit v Merrit and Balfour v Balfour. The two cases had different facts

Overalling - In Pepper v Hart 1993 the HOL ruled that the previous decision about Hansard in Davis v Johnson 1979 (carried out by the COA) was wrong and that it should be permitted.

Reversing - No case

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