Precedent is newly made law that has not arisen before.
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What are the disadvantages of Precedent?
It is bulky, rigid, complex and there are gaps in the law
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What are the advantages of Precedent?
Saves time, promotes justice, certainty
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What is binding Precedent?
Binding Precedent is a decision in a previous case that the same court or lower courts must follow. For example; the Magistrates Court has to follow a decision made in the House of Lords because their decisions are binding on lower courts.
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What is a case example of binding Precedent?
Donoghue v Stevenson 1992, which was followed in Grant v Australia knitting mills
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What is persuasive Precedent?
Persuasive precedent is law that does not have to be followed (is not binding), but courts can refer to it and find it helpful.
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What is a case on persuasive Precedent?
R v R, as the House of Lords followed the decision which was made in the Court of Appeal even though they did not have to as it is not binding.
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What is 'stare decisis'?
This is the Latin term for stand by the previous decision.
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What is obiter dicta?
This is the Latin term for comments/speculation made by a judge which can be helpful when deciding a case
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What is overruling?
Overruling is a method a judge can use to depart from a previous decision when they think that the decision is out of date or is no longer good law / not applied correctly.
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What is a case example of overruling?
Pepper v Hart
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What is distinguishing?
Distinguishing is a method a judge can use to depart from a previous decision where they can find a difference between the previous case and the case they are now dealing with so that they can depart from the previous decision
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What is a case example of distinguishing?
Merritt and Merritt 1971 v Balfour and Balfour 1919
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What is reversing?
Reversing is a method a judge can use to depart from a previous decision because they think the decision made was wrong
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What is a case example of reversing?
Fitzpatrick v Housing Association
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How does original precedent arise?
New technology, new social issues/ changing social conditions
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What did the Practice Statement 1966 set out?
This set out that the House of Lords can depart from their own decisions
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Advantages of the Practice Statement?
Allows English Law to adapt and change to new conditions/ changing conditions
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Other cards in this set
Card 2
Front
What are the disadvantages of Precedent?
Back
It is bulky, rigid, complex and there are gaps in the law
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