7: Judicial Precedent

• If Parliament has not passed relevant legislation, Judges must follow the decision of other judges made in previous cases.
• System of Precedent = If facts are similar enough, judges/lawyers can use the legal arguments and decision from earlier cases.
• Doctrine of Precedent/ Case law / Common Law = Past decision of judges for future judges to follow
• CASES:

  Donoghue V Stevenson - D bought her a ginger beer from a cafe, and as she consumed half of the glass, the rest contained a decomposed snail, causing her shock and gastro-enteritis.

  • House of Lords established the Neighbour Test to establish the presence of duty of care. The duty of care from the manufacturer was breached.

  Daniels V White - D bought a lemonade containing corrosive metal causing a burning sensation, and sued manufacturer for compensation as the Donoghue V Stevenson case was similar
• Stare Decisis: 2 Principles

  • Like cases shall be treated alike
  • Higher courts bind to lower courts (lower courts must follow higher courts' decision)
• Law Reports

  • Judges use law reports to find out about previous cases (e.g All-England Law, Weekly Law Reports)
  • Contain: Case Facts, decision summary, decision reasoning and principles used
• Key Words: Law Reports

  Ration Decendi = reason of the decision, which is the most important part of the judgement as it creates precedent

  Obiter Dicta = other things said
• Types of Judicial Precedent: 1) Original Precedent

  • Whatever the Judge decides will form a new precedent for future cases to follow as there are no past decisions for the judge to look back on (= reasoning by analogy)
• Types of Judicial Precedent: 2) Binding Precedent

  Only occurs to be binding if (stare decisis):

  • Facts of the case are similar
  • The earlier case was decided by a court at a higher level

  Supreme court can either overrule their decision or create a new one
• Types of Judicial Precedent: 3) Persuasive Precedent


  Not binding on the court, so judges aren't obliged to follow, but is persuaded to follow it:

  • Judgements made by lower courts
  • Decisions of the Privy Council
  • Statements made obiter dicta
  • Dissenting Judges (= where a case has been decided by a majority of judges, the disagreeing judge will have explained his reasons for his disagreement)
• Judicial Precedent: Advantages and Disadvantages

  Advantages:

  • Certain and fair
  • Precise
  • Flexible
  • Time-saving
  • Predictable
  • Acts as a base to decide law and application to cases

  Disadvantages:

  • Complex
  • Rigid (repetition of bad decisions)
  • Confusion
  • Prevents development of the law
• Timeline of House of Lords

  BEFORE 1898 - Lords couldn't follow their own past decisions or depart from it as they wished

  1898-1966 - Bound by their own decisions unless the decision was made 'per incuriam' (error)

  1966 - PRACTICE STATEMENT(only used by supreme court) - House of Lords given permission to change their own past decisions when they believed an earlier case had been wrongly decided. Allowed to refuse to follow an earlier case when it 'appeared right to do so'
• Avoidance of Binding Precedent: 1) Distinguishing


  Where Judges argue that the facts in the two cases are different, in which they dont have to follow the earlier decision and tried to distinguish between the two cases (Balfour V Balfour, Merritt V Merritt)
• Avoidance of Binding Precedent: 2) Overruling


  Occurs when:

  • Higher court overrules the decision of the lower court
  • Supreme court uses the Practice Statement (overrules its past decisions)
• Avoidance of Binding Precedent: 3) Reversing


  Involves an appeal court disagreeing with a decision made by lower court in the case and reversing the decision (Cutter V Eage Star Insurance)