- Give another name for judicial precedent. Case law is another name for judicial precedent.
- What is judicial precedent? Preceding cases/trials setting new legal principals for cases to follow and developing them along the way.
- Name two major developments which assisted development of judicial precedent. The judicature acts 1873-75 (laid down modern hierarchy of courts) and the development of an efficient system of law reporting (creation of the council of law reporting – 1865).
- What is Res Judicate? The judge’s decision.
- What is the ratio decidendi? The reason for the judges decision
- What is obiter dicta? Matters spoken by the way.
- When a legal principal is established, what is it known as? It is known as precedent.
- What is binding precedent? Precedent that binds courts below it. I.e. the House of Lords binds the Court of Appeal, the Court of Appeal binds the Divisional Court etc.
- What is persuasive precedent? Decisions not binding on the lower courts but may strongly influence their decisions and use them as support.
- Explain how the system of binding precedent works in relation to the following courts;
The House of Lords; its decisions are binding on all lower courts, in the 20th century it had regarded itself as bound by its own decisions until the 1966 practice statement which allows them to depart from their previous decisions when it appears right to do so. The practice Statement did not alter the fundamental House of Lords precedent but allowed the House of Lords more flexibility in changing its mind. The House of Lords has emphasised the need for certainty, and the power to depart from their previous decisions has been used sparingly.
The Court Of Appeal; both divisions are bound by the decisions of the House Of Lords and their own previous decisions but the decisions of each division do not bind each other. In Young V Bristol Aeroplane Co Ltd (1944) the court of appeal stated that the civil division is bound by its own decisions but that there were three exceptions to this, i.e. in the following situations the civil division could depart from its own previous decisions
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Where there are conflicting Court of Appeal decisions the Court of Appeal may choose one to follow
If a previous decision of the court of appeal is inconsistent with a later House of Lords ruling.
The Court of Appeal may disregard a previous decision if it was made Per Incurium –without due care. This does not allow the Court of Appeal to ignore decisions of the House of Lords.
There is also the possibility that the Court of appeal can ignore a previous decision of its own which is inconsistent with European Community law or with a later decision of the European Court of Justice.
The High Court; as courts of first instance - the three divisions of the High Court are bound by decisions of the Court of Appeal and the House of lords. Their decisions are not binding on themselves, so a High Court judge can refuse to allow a decision of another high court judge. However, judges tend to follow the decisions of other High Court Judges on the basis of judicial co-operation and certainty where a judge in the High Court is confronted by conflicting decisions of the Court of Appeal, the later of which had bee n fully considered (i.e. by a full court of five judges) he is bound to follow the later decision. As an appeal court or review court; the divisional courts are each located within the three divisions of the High Court and hear appeals from courts and tribunals below them in the hierarchy. They are normally bound by their own decisions. In civil cases the divisional courts of the High Courts have treated the rule of Young and Bristol Aeroplane Company as equally applicable to them. Lord Bingham said emphasised that the divisional court should not depart from its own decisions unless satisfied that they are clearly wrong. In criminal appeal cases the QBD may refuse to allow its own earlier decisions where it feels the earlier decision was made wrongly. The divisional courts are bound by the decisions of the House of Lords and the court of Appeal.
Crown courts; bound by decisions of the House of Lords Court of Appeal. Its own decisions do not form binding precedent.
Magistrates and county courts; these are inferior courts and are bound by decisions of all higher courts. They are not bound by their own decisions and the majority of these cases are not reported.
- Give examples of persuasive precedent. Obiter dicta of judges i.e. legal principles or pronouncements which are not necessarily for the decision in the case and are therefore not part of the ratio and not binding. Decisions of the judicial committee of the Privy Council when dealing with appeals from Commonwealth countries. These are particularly influential as the committee is made up of law lords. Decisions of commonwealth courts. Decisions of Scottish or Irish courts even thought they are not part of the English legal system. Decisions of courts inferior to that hearing the case.
- In return to judicial precedent explain the meaning of the following terms;
Distinguish; where the facts of the case before the judge are significantly different from those of the earlier o0ne then the judge can distinguish the two cases and need not follow the earlier one.
Overruling; in a later and separate case a higher court (or the House of lords) decides a similar matter on the basis of a different legal principal. Cases can also be overruled by an act of parliament. It must be remembered that only higher courts can overrule lower courts. In addition, the House of Lords can overrule the decisions of any court including its own.
Reversing; this is simply an overturning on appeal of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision. Thus, the appeal court disagrees with the point of law that decided the matter in the lower court and gives the decision in favour of a different party.
Disapproving; in a later case, without overruling the earlier case, a higher court gives its opinion that the earlier case was wrongly decided. This can happen where the facts of the case in question are sufficiently different from the one dealt with by the lower court.
- Give four advantages of case law. Certainty – judicial precedent means that litigants can assume that like cases will be treated alike, rather than judges making their own random decisions which nobody could predict. Flexibility – i.e. a general Ratio Decidendii can be extended to various fact situations e.g. the test for negligence in Donohue V Stevenson relating to the reliability of the manufacturer of ginger beer has now been extended to every claim in negligence. Predictability – this relates to the certainty argument. With a large number of reported decisions, it should be easier to predict the outcome of a particular dispute and to enable legal advisors to give their clients precise and accurate advice. The law is able to grow as society changes so case law is forged along the anvil of reality – new legal principals can be developed to deal with new situations.
- Give six disadvantages of case law. Possible rigidity possible hair splitting – judges finding artificial points of difference to avoid following an unpopular decision. Complexity and volume - there are thousands of law reports, computer based retrieval systems are available but the previous decisions still have to be read. Unsystematic slow and irregular – case law develops on a case-by-case basis and change in the law can only be made when a case comes to court. Therefore, judges cannot develop a comprehensive code of law but can only develop it on a case-by-case basis. Retrospective effect – changes mad by case law apply to events that happened before the case came to court. So, a person could be punished for doing something that he did when it was not a crime. Undemocratic – although it is accepted that judges can develop the law some argue that in a democracy only elected representatives of the people should have power to make law.
- Do judges make law? The judiciary have considerable powers to influence the development of the law. But the prospect of judges creating the law is unsatisfactory to many involving as it is a breach of the separation of powers i.e. judges are there to apply the law not make it.
- Explain how the House of Lords current approach to judicial law making is laid down in CV DPP (1995) judges should be slow to impose their own remedies where the solution was doubtful. Judges should be slow to act where parliament has declined to do so or had legislated in the area without touching upon the difficulty raised in the present case. Fundamental legal rules should not be lightly overturned. Issues of social policy should be left for determination by parliament. Judicial solutions should not be imposed unless finality was likely to result.
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A helpful series of q & a's. 3 Stars.