Has a binding effect, courts follow previous decisions because they have to
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What are the binding impacts of a case?
internal= Res Judicata (a matter that was adjudicated by a competent court and therefore may not pursued by the same parties) and External- Stare Decisis (the legal principle of determining points in litigation according to precedent)
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What is Res Integra?
A point not yet decided by law, so must be decided on principle
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A proposition in case A is binding in case B if:
1. is decided by a court higher in the hierarchy, 2. is a proposition of law, 3. forms part of the ratio decidendi, 4. no material differences between cases
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Precedent and the CJEU
Not part of domestic hierarchy, doesn't operate a policy of stare decisis (legal principle of determining points in litigation according to a precident). Article 267 rulings: national proceedings suspended, court makes a reference (not individual)...
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CJEU makes a determination of interpretation,
Domestic court decides on case
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What are persuasive courts?
Judicial committee of Privy Council, ECHR, Commonwealth courts.
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Judicial committee of Privy Council
Not part of English hierarchy, essentially highest court of appeal for many Commonwealth countries, persuasive bc of who sits in it
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ECHR
Doesn't bind English courts, HRA s.2 'must take into account decisions of the ECHR'. In many cases we make the same decisions, but don't have to.
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Commonwealth Courts
Dont have to follow, are of interest
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Domestic courts
SC binds every court below it, from 1966 onwards it can change its own ruling. But that can be bad since everyone else must follow them
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Considerations: Proper development of the law
Present law must be improved by new ratio
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and Justice in a particular case
Must mean wider than parties- same class of claimants
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What did Paterson say on the Practice Statement and a jurisprudence of overruling
Use sparingly, Don't upset legitimate expectations, Don't upset statutory construction, leave it to parliament
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What is the difference between overruling and departing from a decision?
departing is much more convenient, it suggests that the law is still good but they dont intend to follow it anymore
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What is does per incurium mean?
through or characterized by lack of due regard to the law or the facts. "the decision was made per incuriam"
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What does the Court of appeal bind?
Itself and all courts below it
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When is it not bound by itself?
When it conflicts with CA decisions, is inconsistent with the SC, or per incuriam
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When overruling a previous decision, what does retrospective and prospective mean?
'The law has always been X, but we've only just realised it'
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What is a pure prospective overruling?
'The law is X from the date of the judgement forwards'
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What is a mixture of approaches?
Prospective for those involved, retrospective for the parties? Retrospective for the parties and others with the same dispute?
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What is normal position?
Retrospective & prospective, but each has its own problems and own set of rules
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What is the proposition of law?
The bit of the case that binds
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What actually is judicial precedent?
In common law legal systems, precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts.
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