Judicial Precedent

• What does Obiter Dicta mean?

  Other things said
• What was the Ratio Decidendi in R v Howe (1987)?

  The defence of duress is not available to murder
• What is Original Precedent?

  Where there is a point of law which has never been decided before, whatever the judges decide to do will form a new precedent to be followed
• What is an example of an Original Precedent?

  In Donoghue v Stevenson (1932), a duty of care was established for the manufacturer to the end consumer
• What does an original precedent automatically become?

  A binding precedent
• What is a binding precedent?

  A precedent from an earlier case which must be followed, even if the judge does not agree with the legal principles used
• How is a binding precedent created?

  • If the facts of the case a sufficiently similar to the original case
  • The decision was made in a court higher in the hierarchy
• What is a persuasive precedent?

  A precedent which is not binding on the court, however the judge may consider it when making his judgment
• What sources does persuasive precedent come from?

  1. Obiter Dicta statements
  2. Courts lower in the hierarchy
  3. Decisions of the Judicial Committee of the Privy Council
  4. A dissenting judgment
  5. Decisions of courts in other countries
• What is an example of a persuasive precedent being used from an Obiter Dicta statement?

  The Obiter statement made in R v Howe (1987) was used to rule out duress as a defence against attempted murder in R v Gotts (1992)
• What is an example of a court lower in the hierarchy setting a persuasive precedent?

  In R v R (1991) The House of Lords followed the Court of Appeal in deciding that a man could be guilty of raping his wife
• What is an example of a decision made by the Judicial Committee of the Privy Council setting a persuasive precedent?

  The Wagon Mound (1961) later influenced the decison made in A-G for Jersey v Holley (2005)
• What is a dissenting judgment?

  A judgement which disagreed with a majority view
• What is an example of a dissenting judgment setting a persuasive precedent?

  The dissenting judgment made in Candler v Crane Christmas (1951), was used as a precedent in Hedley Byrne v Heller & Partners (1966)
• When are decisions made in courts in other countries typically used?

  Where the judicial system is similar and the same idea of common law is used e.g. USA
• What is an example of a court in another country setting a persuasive precedent?

  In Australia, the case of McLoughlin v O'Brian (1983), set a persuasive precedent relating to Nervous shock in negligence cases
• What is every court bound by in judicial precedent?

  Every court is bound by any courts above it in the hierarchy
• What else are appellate courts bound by?

  Generally, appellate courts are bound by their own previous decisions
• Which courts do not set precedents?

  The County Court and the Magistrates' Court do not create precedent
• Which court no longer operates in our legal system?

  The European Court of Justice
• What is essential for judges to be able to follow past decisions?

  An accurate record of what past decisions were
• What establishment helped law reporting become more accurate?

  The Incorporated Council of Law Reporting (1865)
• What is the most established Law Report?

  The All England Series
• What is the acronym we use to remember how judicial precedent works?

  FORD

  Follow, Overrule, Reverse, Distinguish
• What is an awkward precedent?

  A precedent which leads to an unjust or unfair result in a particular case
• What other name are awkward precedents sometimes referred to as?

  An inconvenient precedent
• How can a precedent become an awkward precedent?

  If it has been made several decades previously and is now out of date
• What do we call the process of a judge avoiding using an awkward precedent?

  To depart from a previous decision
• What methods of departing are applicable to all courts?

  Overruling, reversing and distinguishing
• How can judges overrule awkward precedents?


  Where the court in the later case decides that the legal rule decided in an earlier case is wrong
• When can judges overrule awkward precedents?

  • When a court higher in the hierarchy overrules a decision made in a lower court
  • When the Supreme Court overrules its own decisions
  • When the Court of Appeal overrules its own decisions
• What happens when a precedent is overruled?

  The original precedent is altered, but the decision in the case stays the same
• Where is the overruling method used?

  In different cases
• How can judges reverse awkward precedents?

  Where a court higher up in the hierarchy overturns the deciison in a lower court on appeal
• What is an example of a reversed precedent?

  The Gillick case (1985), where the Court of Appeal reversed the decision made in the High Court, which had set a precedent, then the House of Lords reversed the decision again to agree with the High Court
• What was the precedent set in the Gillick case (1985)?

  That children under the age of 16, of sufficient competency, can give their own consent for certain medical prescriptions/procedures
• Where is the reversing method used?

  In the same case (on appeal)
• What does it mean for a judge to distinguish an awkward precedent?

  Judges are able to decide that the material facts of the second case are sufficiently different to the case which set the precedent
• What is an example of a precedent which was distinguished?

  Balfour v Balfour (1919) and Merritt v Merritt (1970)
• What are material facts?

  The most important facts central to the case