Judicial Precedent (JP)

1. Intro
1. Applying the existing principles to current problems
2. Based on 'stare decides': to treat like cases alike
3. Dependent on court status
  1. Decisions of higher courts are binding on lower courts
  2. Courts may be bound to their previous decisions, but there are exceptions
4. Rationale of JP
  1. 1. Serves as guidance
  2. 2. Encourage certainty in law
  3. 3. Maintain traditional respect to judges
  4. 4. Practicality purposes
2. Binding Precedent
1. Decided case which a court must follow if material facts and issue in question are similar, and the court is a higher court
2. Binding part of judgement is ratio decidendi
  1. Defined by Prof. Goodhart: facts deemed material by judge, and his decision based on them
3. Donoghue v Stevenson 1932
  1. Ratio = Duty of Care
  2. Obiter = Neighbour Principle
  3. Dynamic nature between ratio and obiter: obiter changes into ratio over time
  4. Facts of the case
3. Persuasive Precedent
1. Persuasive in nature
2. Comes from obiter dicta, and decisions by Privy Council and foreign courts
3. Weight to be attached depends on court status and prestige of the judge
4. Tools of Departure
1. (a) Reversing
  1. R v Kingston 1994
    1. It is possible to reverse and overrule in the same case.
2. (b) Overruling
3. (c) Distinguishing
  1. Hillyer v St. Bartholomews Hospital (1909)
    1. The doctor was a consultant surgeon, and hospital could not be sued vicariously since he is not an employee
  2. Cassidy v Minister of Health (1951)
    1. The doctor was a resident surgeon, who is an employee of the hospital and therefore the hospital can be liable vicariously.
  3. Depends on amount of control the hospital holds over their employees
5. Supreme Court
1. Before PS 1966
  1. London Tramways v London County Council (1898)
    1. The House considers itself bound by its own previous decisions, as the highest court of the land
    2. To promote certainty, gain public confidence and put an end to litigation
2. Practice Statement 1966 by Lord Gardiner
  1. JP is an indispensable foundation to determine law and its application in cases
  2. Rigid adherence to it can cause personal hardships
  3. Judges in the House can depart when it appears 'right to do so'.
  4. Judges should refrain from making reforms in criminal law, as certainty is crucial in this aspect of law
3. After PS 1966
  1. Guidelines were set in what type of cases to overrule
    1. Jones v Sec State for Social Services 1972
      1. Use PS 1966 sparingly in the construction of statutes and documents
    2. Food Corp of India v Antclizo Shipping 1987
      1. Decision shall not be overruled merely because it causes gave concern, but in an attempt to resolve the dispute
    3. Conway v Rimmer 1968
      1. Duncan v Cammel Laird 1942
        Affidavit is binding since it was a time of war, and if document is disclosed, it could harm British civilians
      2. Courts will decide whether a minister's affidavit shall be disclosed
    4. Herrington v British Railways Board 1972
      1. Addie v Dumbreck 1929
      2. Occupier shall be liable to trespassers if they know there is a potential danger and have not done all a humane person could have
      3. There are more and more people living in cities with railway tracks, and thus the law shall be developed.
    5. R v R 1991
      1. Overruled Hale's theory and made marital rape an offence
      2. Retrospective offence
    6. R v Clegg 1995
      1. House was averse to reduce murder to manslaughter, and that this change should come from Pt.
    7. C v DPP 1995
      1. (a) Cautious imposing a remedy when solution seems doubtful
      2. (b) If Pt. has rejected or legislated, but left the problem untouched, they should be cautious
      3. (c) Judges are better dealing with legal problems, than social policy
      4. (d) Precedent should not be lightly set aside
      5. (e) Judges should not change the law unless they can achieve finality and certainty
6. Court of Appeal
1. Exceptions From Young v Bristol Aeroplane 1944
  1. 1. Two conflicting COA decisions
    1. National Westminster Bank v Powney 1990
      1. Tiverton Estates v Wearwell 1975
      2. Law v Jones 1974
      3. Can choose which to depart and which to follow
  2. 2. Later HoL decision conflicting with CoA previous decision
    1. Westminster City Council v Clarke 1992
      1. Family Housing Association v Jones 1990
    2. CoA does not follow its previous decision where its previous decision is inconsistent with HoL decision.
  3. 3. Per Incuriam
    1. (a) Reached by overlooking statutes or case law
    2. (b) Produce serious inconvenience in the administration of justice
    3. (c) Ignoring previous HoL decision
    4. Duke v Reliance System 1982
      1. 1. Uncited statute or case law
      2. 2. Defence is wide and therefore care must be taken in relying upon it
      3. 3. Recent developments show it produces inconvenience to justice
7. High Court
7. + / - of Precedent
1. 1. Reasonable flexibility given to Supreme Court
2. 3. Promotes certainty to a certain degree to provide predictability in court decisions
3. 4. Overrules decisions to ensure proper development in law to suit changing needs of society
4. 5. Exceptions given to CoA and High Court allow greater flexibility
5. 2. Only Supreme Court shall overrule decisions using PS 1966 because judges are experienced enough to consider the long-lasting effect of judicial law reform
6. a. Retrospective overruling
7. b. May take longer for decisions to be overruled, CoA is often the last resort due to finance and limited grounds of appeal.

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Judicial Precedent (JP)

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	Created by Alicia Tan about 7 years ago