Judicial Precedent
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- Created by: TabithaNash16
- Created on: 31-01-21 14:20
What is judicial precedent?
Common law is based on the doctrine of judicial precedent
When a case is decided in the appeal courts, this sets a precedent
This precedent must be followed for future cases
When a case is decided in the appeal courts, this sets a precedent
This precedent must be followed for future cases
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What does judicial mean?
by judge
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What does precedent mean?
something new
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What does doctrine mean?
rules
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What does stare decisis mean?
stand by the decision (so what is decided in one court must be followed)
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What does ratio decidendi mean?
reason for the decision (why has the judge come to this decision, forms the basis of the law)
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What does obiter dicta mean?
by the way
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What does hierachy of courts mean?
different levels of authority
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What does law reporting mean?
accurate report of all cases achieved by official law reports, everything in court is recorded
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What does blinding precedent mean?
has to be followed, the judge has no choice
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What does persuasive precedent mean?
influential, this does not have to be followed
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What is the concept stare decisis?
What are some cases?
What are some cases?
Once a judgment has been made in a particular case the courts must apply that in all future cases containing the same material facts
Donoghue v Stevenson 1932
Daniel & Daniel v R White
Grant v Austrailian Cotton Mills
Donoghue v Stevenson 1932
Daniel & Daniel v R White
Grant v Austrailian Cotton Mills
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Stare Decisis
What happened in the case of Donoghue v Stevenson 1932? What did this case establish?
What happened in the case of Donoghue v Stevenson 1932? What did this case establish?
Established the modern law of negligence
Mrs D went to cafe with friend, friend brought them both bottle of ginger beer and ice cream, Mrs D poured her ginger beer over ice cream, she then ate it and poured the rest into a glass where she found a decompo
Mrs D went to cafe with friend, friend brought them both bottle of ginger beer and ice cream, Mrs D poured her ginger beer over ice cream, she then ate it and poured the rest into a glass where she found a decompo
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What did the case of Donoghue v Stevenson 1932 establish?
Established the modern law of negligence
It set the original precedent that the manufactuer had a duty of care the ratio decidendi that the manufacture owes a duty of care to the women
It set the original precedent that the manufactuer had a duty of care the ratio decidendi that the manufacture owes a duty of care to the women
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Stare Decisis
What happened in the case of Daniel & Daniel v R White ?
What happened in the case of Daniel & Daniel v R White ?
They were brothers, they brought some R White lemonade, they drunk it and it burnt their throats, the lemonade had chemicals in it that it shouldn't
Although it caused an injury the courts had to follow the case of Donoghue v Stevenson law as the brother
Although it caused an injury the courts had to follow the case of Donoghue v Stevenson law as the brother
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Stare Decisis
What happened in the case of Grant v Australian Cotton Mills?
What happened in the case of Grant v Australian Cotton Mills?
Grant brought some long johns, developed a rash and the rash was caused by a chemical in the long johns that shouldnt have been there
Same law as Donoghue v Stevenson so follows the same precedent as the manufacture caused harm
Same law as Donoghue v Stevenson so follows the same precedent as the manufacture caused harm
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What is the concept of ratio decidendi?
The reason for the decision
This becomes the legal princible
This blinds all future cases containing the same material facts
Known as the binding precedent
This becomes the legal princible
This blinds all future cases containing the same material facts
Known as the binding precedent
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What is the concept of obiter dicta?
"by the way" statement
Consists of any part of judgement that was not necessary for the decision
An example of a persuasive precedent
Does not have to be followed but may be highly influential
Consists of any part of judgement that was not necessary for the decision
An example of a persuasive precedent
Does not have to be followed but may be highly influential
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What happened in the case of R v Howe & Bannister?
What was the obiter dicta and the ratio decidendi?
What was the obiter dicta and the ratio decidendi?
D convicted of murder, he had killed a person after being ordered to do so by X, X said he would kill D if he did not kill X
Upheld Ds conviction and stated that duress was not a defence to murder
Ratio Decidendi: murder
Obiter Dicta: attempted murder as
Upheld Ds conviction and stated that duress was not a defence to murder
Ratio Decidendi: murder
Obiter Dicta: attempted murder as
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What is the concept of the hierachy of courts?
The courts are bound by all courts above them in the hierachy but do not have to follow the precedents as set below
The courts are generally bound by a precedent from a court of the same level, however subject to exceptions
The courts are generally bound by a precedent from a court of the same level, however subject to exceptions
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What is the order of courts?
ECJ
Supreme Court - House of Lords
Court of Appeal
High Court
Magistrates, Crown Court, County Court
Supreme Court - House of Lords
Court of Appeal
High Court
Magistrates, Crown Court, County Court
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What is the concept of the binding precedent?
The ratio decidendi from an appeal court is binding on all lower courts
Means it must be followed in all cases containing the same material facts
There are some ways of avoiding precedent
Means it must be followed in all cases containing the same material facts
There are some ways of avoiding precedent
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What is the concept of persuasive precedent?
Do not have to be followed but judges may find them influential - Inlude:
- Obiter dicta
- Decisions from lower courts
- Case law from the Privvy Council
- Case law from other countries
- Dissenting Opinions = when a judgement in a supreme court everyon
- Obiter dicta
- Decisions from lower courts
- Case law from the Privvy Council
- Case law from other countries
- Dissenting Opinions = when a judgement in a supreme court everyon
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What is the concept of law reporting?
In order for the doctrine of precedent to operate, it is vital that cases are accuratley recorded
Informal reporting conducted by barristers existed prior to 1865, quality varied
1865 Incorprated Council of Law Reporting was set up
Informal reporting conducted by barristers existed prior to 1865, quality varied
1865 Incorprated Council of Law Reporting was set up
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What must be reported in law reporting?
An outline of the facts, a brief history of case in terms of whats courts it has been considered by and outcome of the trial, judgements from each judge including concurring judgements and dissenting judgements, the ratio decidendi and obiter dicta, some
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Other cards in this set
Card 2
Front
What does judicial mean?
Back
by judge
Card 3
Front
What does precedent mean?
Back
Card 4
Front
What does doctrine mean?
Back
Card 5
Front
What does stare decisis mean?
Back
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