Judicial Precedent

Precedent
1. Original
  1. First time that type of case has been seen. Look to similar cases and sometimes Commonwealth Countries
    1. Re S (Adult: refusal of medical treatment) Mother didn't want C-section but it was carried out anyway and seen as lawful as in child's best interests
2. Binding
  1. Precedent from an earlier case must be followed regardless of how judge feels about it
  2. Bound by courts on same level or higher
3. Persuasive
  1. Dissenting Judgement
    1. Where a minority of judge panel disagrees w/ decision and says why. This reasoning may be used in HL case later
    2. Rose & Frank co V J.Crompton & Bros: regarding enforcibility of contracts
  2. Commonwealth Countries
    1. Have similar legal systems so may be looked to when dealing with original precedent
    2. R v Bentham: Considered case law from USA in ref. to gun laws
    3. Hunter v Canary wharf: Loss of TV signal. Looked to Canadian case about loss of view
  3. Court Hierarchy
    1. Decisions made by lower courts ma be taken into consideration by higher courts
    2. R v R: HL followed CA decision of finding marital rape illegal
  4. Privy Council
    1. Hears Final appeals for over seas territories & Commonwealth countries. Run by senior judges so decisions are respected
    2. Cases
      1. Wagon Mound: Privy council decision that has been followed ever since
      2. R v Mohammed; R v James; R v Kirami: CA should have followed HL decision on Smith but instead followed PC decision on Jersey v Holley
        Went against hierarchy and Stare Decisis
  5. Obita Dicta
    1. Judge may mention hypothetical situ similar to current case that may be persuasive in latter case w/ same principle
    2. R v Howe -- R v Gotts: R v Howe said duress not defence for murder and said in Obita Dicta also not defence for attempted murder. R v Gotts took obita dicta from R v Howe and said duress not defence for attempted murder
  6. Not binding but judge may be persuaded to use it
Avoiding
1. F.O.R.D
  1. Overruling
    1. Higher court overrules Lower courts decision
  2. Reversing
    1. Case goes on appeal and Higher court overrules Lower courts decision
  3. Distinguishing
    1. Distinguish via material facts
    2. Balfour v Balfour: No legally binding contract. Merritt v merritt: Contract was in writing
  4. Following
2. Court of Appeal
  1. Civil
    1. F.O.R.D
    2. Young Exceptions
      1. 1. Conflicting decisions on past CA decisions
      2. 2. HL has overruled CA decision
      3. 3. Where decisions were made Per Incurium
        Carelessly ir by mistake by not considering relevant statutes
        Williams v Fawcett: CA refused to follow previous decision as there had been a misunderstanding of county court rules
        Rickards v Rickards: CA refused to follow previous decision as decided it had misunderstood effect of HL decision
      4. From Young v Bristol Aeroplanes
  2. Criminal
    1. F.O.R.D
    2. Young Exceptions
    3. Misapplied and Misunderstood
      1. Have this as should remember D's liberty is at stake. ReIterated in R v Taylor; R v Spenser; R v Gould
3. House of Lords
  1. Practice statement 1966
    1. Given by Lord Chancellor in response to London street Tramways and DPP v Smith
      1. Conway v RImmer: 1st use on point of law
        Addie v Dumbeck: Decided only have duty of care for a child trespasser if damage caused is deliberate Herrington v British railways board: Changed to always have duty of care even if damage isn't deliberate
        Jones v Secretary of State: shows reluctance- 4/7 judges decided R v Dowling wrong but refused to overall because of value of certainty
        Knuller v DPP: followed same line of thought as Jones
        Miliangos: Damages can be rewarded in sterling- Overruled Harvana
        Pepper v Hart: overruled hansard not being allowed
        CA refused to follow HL precedent on Harvana, HL said they couldn.t do that. M went up to HL on appeal where they used it to ovverule Harvana
PRO'S / Cons
1. Advantages
  1. Certainty- Know how law will be applied
  2. Consistency & Fairness- Similar Cases --> Similar outcomes. Law must be consistent to be credible
  3. Precision- Been around for so long that it is very precise
  4. Flexibility- Room for law to grow and change with times
  5. Time saving- Case with established principle won't have long litigation stages
2. Disadvantages
  1. Rigidity- wrong decision= all courts must follow unless SC changes precedent
  2. Complexity- hard to track down all relevant case law
  3. Illogical Distinctions- Distinguishing has led to hair splitting
LATIN
1. Stare Decisis
  1. Don't unsettle the established
2. Obtia Dicta
  1. Other things said
3. Racio Decendi
  1. Reason for Deciding
Colchester Estates (cardiff) v Carlton Industries PLC: Decided when 2 decisions in high court conflict so long as first is fully considered the second should be followed

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Judicial Precedent

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	Created by ertth72 over 10 years ago