types of JP

• Binding Precedent

  • a precedent which must be followed
  • usually because it comes from a higher court, binding precedents operate through the system based on court hierarchy (higher courts bind lower courts)
  • to be bound, the case facts will have to broadly similar
  • the binding precedent is found in the ratio decidendi of the relevant judgement - e.g. a manufacturer responsible for product condition to consumer; Donoghue v Stevenson
• Original Precedent

  • a precedent which involves a point of law that has never been decided before
  • once declared it will become binding - Re:S (adult refusal of medical treatments, a caesarean, based on religious grounds which the courts overruled)
  • original precedents are often driven by social and technological change
  • judges may employ the method of 'reasoning by analogy' in order to deal with a novel situation and produce an original precedent - Hunter v Canary Wharf (1995)(loss of TV reception) reasoned by anology with Aldred's case (1611) (loss of a view)
• Persuasive

  • judge is at liberty to consider but doesn't have to
  • courts lower in hierarchy - e.g. R v R - matrimonial rape
  • decisions of the judicial committee of the privy council - e.g. Wagon Mound case
  • statements made obiter dicta - e.g. R v Howe, R v Gotts
  • dissenting judgement - R v Brown - 2 found not guilty
  • decisions of foreign jurisdictions - e.g. R v R, scottish courts introduced matrimonial rape some years earlier
  • views of legal academics - e.g. R v Collins, textbook 'criminal law'
• Over-Ruling

  • Practice Statement 1966 - depart from previous decisions if 'it appears right to do so'
  • Addie v Dumbreck - duty of care to trespassers, British Railways Board v Herrington - limited duty of care to child trespassers
  • Anderton v Ryan - impossibility rule not guilty, R v Shivpuri - can be guilty under the impossibility rule
  • Young v Bristol Aeroplanes set out 3 situations CoA can change old precedents; (1) 2 conflicting CoA decisions on the same issue, keep 1 and overturn the other, (2) CoA decision conflicts with Supreme Court decision on same issue in law, change to match Supreme Court's decision (3) if CoA decision was made 'per incuriam', R v Taylor 'misapplied or misunderstood'
• Distinguishing

  • show 2 cases are materially different
  • Balfour v Balfour - no contract, no ITCLR
  • Merritt v Merritt - written agreement, contract, ITCLR
  • R v Brown and R v Wilson
  • if 2 cases are sufficiently similar then the precedent must be followed
• Reversing

  • Superior court changes decision made in another lower court
  • Gillick v West Norfolk and Wisbech Area Health Authority - CoA reversed High Court decision
  • appealed again to HoL who reversed the CoA decision, introduced 'gillick competency', show 'sufficient understanding and intelligence to understand fully what is proposed'