Types of precedents

• Original precedent:

  • brand new and never has been decided upon (judge made law)
  • Decison is a new binding precedent for future cases to follow
  • 'new' legal issue and has no precedent for themselves to follow.
  • The closest case will be looked at in principle for inspiration 'reasoning by analogy'
  • e.g, donoghue v stevenson - legally established that A owes B a duty of care.
• Binding precedent:

  • precedent from an earlier case which must be followed
  • only binding when sufficently similar
  • made by equal or more senior courts ('stare decisis')
  • E.g, caparo updated the neighbour principle
  • original precedent is also binding, binding is not always originally binding.
• Persuasive:

  • does not have ot be followed, judge has discression
  • when used this becomes binding
  • obiter dicta - howe/gotts
  • dissenting judge - explain in a judgement why they disagree with that trial.
  • heirarchy - R v R - magistrates hinted at marital rape as a crime, waited for a higher court to confirm the precedent.
  • Privvy council judgements - law in the commonwealth