precedent take 3

• what is precedent?

  Precedent is a source of law where decisions of judges create law for future judges to follow. Also known as case law. This means that a decision in a previous case can be binding on another court if the facts are similar
• WHat is the english system of precedent loosely based off of?

  The latin maxim stare decisis - "stand by what has been decided and do not unsettle the established".
• What are the two elements of precednet?

  Court hierarchy and the Ratio Decidendi
• Explain how the court hierarchy acts as the first element of precedent?

  The general rule is that a court must follow the decision of another court that is higher, or sometimes of equal status, in the

  hierarchy, but it does not have to follow the decision of a court that is below it.
• Describe the SUpreme court's position in the court hierarchy?

  It binds all other courts, it used to be bound by its own decisions but not anymore after the practice statement of 1966.
• Who made the practice statement?

  In 1966, the lord chancellor made the practice satatement.
• What is the practice statement?

  A statement that states that allows the SC to depart from its own decisions.
• Why was the practice statmernt made?

  The house of lords stated that sticking too rigidly to precedent may lead to injustices. It can also restrict the development of the law. But, tne HL would continue on the basis that its own previous decisions would normally be binding, but would depart from them when it seemed the right thing to do
• When is the practice statement 1966 used?

  The supreme court is reluctant to depart from its own decisions, as such it needs to be convinced that there will be great hardship in not doing so. It will also need to consider the effect of overruling on established decisions, and as such will not overrule a decision just because they think its wrong.
• Give 2 examples of how the practice statement was used

  Hall v Simmons 2000

  BRB v Herrington
• How was the practice statement used in Hall v Simmons 2000?

  It was decided that lawyers owe a duty of care to their clients in relation to advocacy- this updated the decision made in rondel v worsley.
• How was the practice statement used in BRB v Herrington?

  In BRB v Herrington in which the earlier decision in Addie v Dumbreck was not followed and the law was changed.
• How is the practice statement used in criminal law?

  The Practice Statement will be used in criminal law where there has been an error made and that needs to be corrected by overruling it.
• In the context of criminal law, give an example of the practice statement being used.

  the case of R v R and G
• How was the practice statement used in the case of r v r and G?

  it was used to overrule an earlier decision in R v Caldwell. This now means that recklessness is now decided subjectively rather than objectively
• Describe where the courts of appeal are in the court hierarchy?

  The courts of appeal are directly below the supreme court. Decisions by one Division will not bind the other Division. However, within each Division, previous decisions are normally binding on later decisions, especially for the Civil Division.
• specifically, where does the civil court of appeals lay in the court hierarchy?

  It is bound by the supreme court, binding lower courts- it is bound by its own decisions.
• When is the Civil court of appeal not bound by its own decisions?

  The case of Young v Bristol Aeroplane states that the three exceptions are:

  There is a subsequent supreme court decision that prevails

  There are two conflicting CA decisions, so the court must follow one

  the decision was made per incuriam--- meaning carelessly or by mistake.
• what case is an example of a decision being made per incuriam?

  Williams v Fawcett
• Where is the criminal court of appeal in the court hierarchy?

  It is bound by the supreme court, and it binds the courts below itself.
• Is the court of appeal criminal division bound by its own decisions?

  It isn't strictly bound by own decisions if the law has been “misapplied or misunderstood”
• What are is the significance of the cases of R v Taylor and R v Gould in terms of when the CA criminal division isn't bound by its own decisions ?

  these cases show that when the reputation or liberty of the defendant is at stake, the CA isn't always bound by its own decisions.
• Describe where the High court is in the court hierarchy and which courts bind it.

  The high court is below the CA. The High Court is bound by decisions of the Supreme Court and the Court of Appeal.However a High Court judge is not absolutely bound by the previous decision of another High Court judge although, in practice, they tend to follow them. Their decisions are highly persuasive on lower courts.
• What is meant by the ratio decidendi?

  The principle of law that is based on the facts of the case. it isnty expressly stated in the judgement but is interpereted by lawyers and future judges. The ratio can be widened and narrowed by subsequent judges and as such may be different from what the original judge had intended.
• What is the RD of Donoghue v Stevenson

  Manufacturers owe a duty of care to the ultimate consumers of their products, establishing the "neighbour principle" in negligence law
• What is the RD of McLoughlin v O'brian?

  A claimant can recover damages for psychiatric injury caused by witnessing the immediate aftermath of an accident involving close family members.
• What is the RD of Alcock v Chief constable of south Yorkshire ?

  To claim for psychiatric injury as a secondary victim, the claimant must have close ties of love and affection with the primary victim, proximity to the incident or its immediate aftermath, and have directly perceived the incident.
• What is the RD of white v Chief Constable of South Yorkshire?

  Employees, such as police officers, cannot claim for psychiatric injury as secondary victims unless they meet the established criteria; employment does not grant special status.
• What is the RD of Addie v Dumbreck?

  Occupiers owe no duty of care to trespassers, only avoiding intentional harm or recklessness
• What is the RD of r v Howe?

  the defense of duress is not available for charges of murder, establishing that one cannot claim duress as a defense to taking another's life.
• What is the RD of Balfour v Balfour?

  Agreements between spouses made in the context of their domestic relationship are presumed not to have legal intent and are therefore unenforceable.
• What is the RDF of Merritt v Merritt?

  Agreements between estranged spouses, especially when in writing, are intended to create legal relations and are enforceable.
• What are the 3 types of precedent

  Original, binding persuasive
• What is original precedent?

  Where there are no previous cases on a topic. Judges have to make a decision, which will be the basis of the precedent that other cases will follow. This way of arriving at a judgment is called reasoning by analogy.
• Give 2 examples of where original precedent was made

  Donoghue v Stevenson

  R v blaue
• When is binding precedent created?

  If the facts of a case are sufficiently similar to the case that has already been decided; AND a Decision is made by a court that is capable of binding the court dealing with the case
• What is persuasive precedent?

  This is a precedent that is not binding, however, a court may consider it and decide it is the correct principle and be persuaded to follow it.
• What are 3 examples of persuasive precedent?

  Obiter dicta

  Dissenting judgements

  other jurisdictions- this applies to commonwealth countries
• What is a dissenting judgement?

  here a case has been decided by a majority (for example two to one in the CA) the judge who disagreed will have explained their reasoning. If the case goes to appeal the supreme Court may prefer the dissenting judgment and use that.
• What case was a dissenting judgment used?

  The dissenting judgment made in Candler v Crane was used in the case of Hedley Bryne v Heller