Judicial precedent refers to the source of law where past decisions made by judges creat future laws for future judges to follow.
RATIO DECIDENDI: reason for deciding - binding precedent
STARE DECISIS: let the decision stand
OBITER DICTA: other things said by the way - persuasive precedent
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Types of Precedent
BINDING PRECEDENT
Comes from courts higher in the heirarchy and must be followed in later cases
ORIGINAL PRECEDENT
No previous similar case then the judge will create new precedent
HUNTER AND OTHERS 1995 - television interuption case - ruling created future precedent
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Types of Precedent
PERSUASIVE PRECEDENT
May be followed in other cases, 5 types:
Dessenting judgement - 2:1 decision, court can choose who to follow
Decisions of other courts in other countries
Courts lower in the heirarchy: R V R 1991 - House of Lords agreed with Court of Appeal that a husband can be guilty of ****** his wife.
Obiter Dicta statements: R V GOTTS 1992 followed the obiter dicta statement or R V HOWE 1987.
Decisions of the Judicial commitee of the Privvy Council: court of appeal chose to follow the decision made in the Privvy council (AG V HOLLEY 2005) in deciding the case of JAMES AND KARIMI 2006 rather than the House of Lords decision in R V SMITH 2000.
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Practice Statement
allows the House of Lords to change their previous decision/precedent if believed to be wrong.
CONWAY V RIMMER 1968 - first civil use of the PS
HERRINGTON V BRITISH RAILWAY BOARD 1972 - departed from previous decision in ADDIE V DUMBRECK
PEPPER V HART 1993 - PS used to allow the use of Hansard - departed from DAVIS V JOHNSON 1979
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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”
RICKARDS V RICKARDS - This was where the youngs case was used to depart from the previous decision because it was made per incurium
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Ways to avoid precedent
DISTINGUISH
find significant difference between facts - BALFOUR V BALFOUR 1918: domestic arrangement - MERRIT V MERRIT 1970: contract between patners.
REVERSE
overturn the decision of a lower court on appeal in the same case
OVERRULING
earlier case decision believed to be wrong - R V SHIVPURI 1986 overruled ANDERTON V RYAN 1985
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Disadvantages
COMPLEXITY - not easy to find relevant cases or extract ratio
ILLOGICAL DISTINCTIONS - 'hair splitting' some areas of the law become very complex
SLOWNESS OF GROWTH - some areas of law unclear and in need of reform
RIGIDITY - lower courts must follow previous higher decision even if the decision is wrong.
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Advantages
TIME SAVING to follow previous decisions
CONSISTENCY AND FAIRNESS - similar cases decided the same - crediable
PERCISION - set out in actual cases - builds gradually through the years through different case facts
FLEXIBLE - use of the Practice statement 1966 means there is room for change
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