Doctrine of Precedent

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What kind of legal system is used in the UK?
Common law. (Judge-made law).
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What is the function of the common law system?
Fair, certain, replicable, consistent.
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What are the three types of judicial precedent?
Original precedent, makes the law and sets precedent. Binding precedent, must be followed by other/lower courts. Persuasive precedent, not legally binding - authoritative force.
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What is persuasive precedent?
Very strong advice, from distinct cases that raise similar ideas or a case tackled by similar decisions in different jurisdictions.
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What is the difference between original precedent and binding precedent?
When original precedent used again, becomes binding.
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Is the whole decision in a case with a set precedent binding?
No, just the legal principle. (To find this legal principle, may need to look over a case several times).
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What is the ratio decidendi?
The legal principle. Rationale of a decision, statement of law justifying the ruling.
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What is the obiter dicta?
A persuasive term used to describe judicial debate and discourse. "By the way".
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What is res judicata?
Binding on the parties involved. (Fines, etc.) (Not binding on lower courts).
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Where do we find ratio decidendi?
In an adjudicator's determination, or the subsequent judicial interpretation.
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Why is identifying the ratio difficult?
Need to find the legal issue within facts of a case. Lord Justice Buxton would argue finding ratio is easy because judges will state their rationale. However, difficult to pinpoint during judicial reasoning, usually ratio found after case set.
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What does the case of Donoghue v Stevenson [1932] show about precedent?
A new precedent was set in the case, Judges had to interpret previous case law as there was no contractual relationship found.
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What is meant by widening or restricting the scope of a ratio?
It determines the application of ratio in a given case.
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What are material and immaterial facts?
Relevant and irrelevant facts, respectively.
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What is meant by the term "generality of facts"?
General interpretation of material facts, widening the scope of the ratio. Donoghue v Stevenson ratio applies to cases involving consumption of contamination of food causing physical illness.
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How can generality of facts be identified and the scope widened for the precedent?
If the material facts are similar and raise similar conflicts.
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Is obiter dictum/dicta a binding element of a decision?
No. Just a statement of law made in passing.
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What are the two types of obiter dictum?
Gratis dicta: mere sayings. Judicial dicta: specific opinion of law. (The latter has more potency and significance).
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What is the difference between obiter dictum and ratio decidendi?
Ratio, judgement. Judicial dicta, specific opinion of law, justification for judgement.
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What does the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] show about distinguishing obiter?
The ratio was concerned with the significance/effectiveness of the disclaimer, any comments on the liability of the party had no bearing on the decision. (So, obiter).
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What does the case of Rondel v Worsley [1969] show about identification of obiter dictum?
Considered barristers’ liability for negligent preparation & presentation of case in court. Considered barristers’ liability for work outside court-related matters as an obiter. Solicitors’ similar immunity also considered as an obiter.
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What was the ratio in Rondel v Worsley [1969]?
Immunity of barristers for court-related work. The obiter was if the work was not related to court, immunity may have been applied.
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What occurred in the judgement of R v Ahluwalia [1992]?
Ahluwalia's "Battered Woman Syndrome" was not accepted for defence for killing her abusive husband. Obiter, if medical evidence had been provided, defence would have been accepted.
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What occurred when the R v Ahluwalia [1992] obiter was elevated to ratio in R v Dryden [1995]?
In R v Dryden, followed obiter dicta of Ahluwalia to create ratio stating mental characteristics could be considered in test for provocation.
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Is the Supreme Court bound to follow precedents set by the European Court of Justice?
Yes in matters that relate to EU law, obligations and objectives.
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Is the Supreme Court bound to follow precedents set by the European Court of Human Rights?
Not bound, though must consider EctHR jurisprudence (art.2 HRA 1998).
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Is the Supreme Court bound to follow precedents set by the Judicial Committee of the Privy Council?
Not bound, though Privy Council precedent may have persuasive authority.
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Is the Supreme Court bound to follow precedents set by other English courts?
No.
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Is the Supreme Court bound to follow precedents set by its own decisions previous or otherwise?
No.
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What did Lord Gardiner state in the London Tramways v London County Council [1898] case?
"To depart from a previous decision when it appears right to do so. This announcement is not intended to affect the use of precedent elsewhere than in this house." His justification was that too rigid adherence could lead to injustice within a case.
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What are the three scenarios where the Supreme Court do not have to follow their own precedent?
To adapt the law to recognise changes in society, to enable the court to pay more attention to superior Commonwealth decisions, and where a previous decision has wielded negative results.
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What are the issues with departing from precedent?
Must be used sparingly and cautiously as certainty could be impaired.
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What occurred in the case of R v R [1991]?
The courts upheld the contractual element of marriage made marital **** impossible. This precedent was later offset.
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Is the Court of Appeal bound by judicial precedent?
Yes, apart from in three excepting circumstances.
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What are the three excepting circumstances?
Where two CA decisions conflict with each other. Where previous CA decision conflicts with SC decision (must follow SC). When CA precedent given per incuriam.
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What does per incuriam mean?
"Through the lack of care." A previous court judgement has failed to pay attention to relevant statutory provision or precedents.
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What is an example of when the CofA has bypassed precedent due to conflict between two decisions?
Tiverton Estates Ltd v Wearwell Ltd [1975] bypassed an "incorrect" decision in Law v Jones [1974].
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////////What is an example when a previous CofA decision conflicted with SC decision and the CofA had to follow the Supreme Court ruling?
Young v Bristol Aeroplane [1944].
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///////What is an example of when a CofA precedent was given per incuriam?
Miliangos v George Frank (Textiles) Ltd [1975].
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What are the two new exceptions to binding precedent made since 1942 for the CofA?
To depart from a previous decision if it is in conflict with EU law. When previous Court of Appeal decisions are provisional, not final or definitive = Boys v Chaplin [1968].
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Lord Denning's dialogue on further exceptions for the House of Lords.
....
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What are the three divisions of the High Court?
QB Division, Chancery Division and Family Division.
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Are the three divisions of the High Court bound by their own decisions?
Bound by HofL and CofA decisions, and bound by their own precedents, except the three instances states in Young v Aeroplane. However! The QB Criminal Division is not bound by its own decisions.
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Which decisions are the Crown Court, County Cour, and Magistrates Court bound by?
All higher court decisions.
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How does judicial precedent affect the Judicial Committee of the Privy Council?
Not bound by own prior decisions. Privy Council decisions not binding on courts in England and Wales.
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How does judicial precedent affect the European Court of Justice?
ECJ not bound by its own prior decisions. ECJ decisions binding on all national courts of the EU’s Member States on issues relating to the interpretation of Community law.
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How does judicial precedent affect the European Court of Human Rights?
Not bound by its own prior decisions. UK national courts not bound to follow ECHR decision – but under an obligation to consider its jurisprudence.
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Exceptions to the rule of binding precedent: What is distinguishing?
Method used by a judge to avoid following a past decision. Judge finds material facts are sufficiently different for him to draw a distinction between a present case and the previous precedent.
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What is an example of usage of the distinguishing rule?
Belfour v Belfour [1919] and Merritt v Merritt [1971].
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Exceptions to the rule of binding precedent: What is reversing?
Where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case. E.g. the CofA may disagree w ruling of High Court and reverse the decision made by the HC.
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Exceptions to the rule of binding precedent: What is overruling?
Where a court in a later case states the legal rule in an earlier case is wrong.
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What is an example of usage of the overruling rule?
Pepper v Hard [1993] overruling earlier decision in Davis v Johnson.
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What are four advantages of judicial precedent?
Certainty, flexibility (social change), speed, practicality.
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What are six disadvantages of judicial precedent?
Complexity and volume, rigidity, haphazard process, lack of judicial training, retrospective effect, undemocratic.
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What is meant by haphazard process in regard to the disadvantages of judicial precedent?
Illogical distinctions, unpredictability, dependence on chance/unsystematic progression.
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Card 2

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What is the function of the common law system?

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Fair, certain, replicable, consistent.

Card 3

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What are the three types of judicial precedent?

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Preview of the front of card 3

Card 4

Front

What is persuasive precedent?

Back

Preview of the front of card 4

Card 5

Front

What is the difference between original precedent and binding precedent?

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