MLS

• Judicial precedent

  Application of the principle of stare decisis - to stand by the decided
• Judicial precedent

  • Inferior courts are bound to apply the legal principles set down by superior courts in earlier cases
  • Provides consistency and predictability in the law
  • Can only be applied when the second case is fairly similar to the facts of the original case
  • Requires a clear hierarchy of courts and accurate judicial reports
• Judicial precedent is important to give the system a sense of justice and make it acceptable to the public
• Judicial precedent

  • It is practical, based on real facts, unlike legislation
  • It is detailed, hence there is a wealth of cases to refer to
• Rules of precedent

  • House of Lords binds all lower courts but is not bound by its own decision
  • Court of Appeal binds all lower courts and itself, although the Court of Appeal (Criminal Division) does not bind the Court of Appeal (Civil Division) or vice versa
  • High Court binds all lower Courts but not itself
  • All other court decisions have persuasive precedent but are not binding
• Ratio decidendi


  The legal reason or principal which lays behind the decision and provides the precedent for judges to follow in future cases
• Obiter dicta

  Comments made by a judge that are relevant to the case but not essential to deciding it, and do not create a precedent, but may be persuasive
• The Supreme Court has been contradicting itself in terms of its judgment on the same topic
• Ratio decidendi have a binding effect, while obiter dicta are of persuasive effect
• Judicial review is a mechanism by which the High Court, that is, the Supreme Court in Mauritius, exercises a supervisory jurisdiction over lower courts, tribunals and other public bodies and ministries
• Stare decisis

  The English system of precedent, based on the Latin maxim "stand by what has been decided and do not unsettle the established"
• The focus of judicial review is concerned with reviewing not the merit of the decision in respect of which the application for judicial review is made, but the decision-making process itself
• Stare decisis

  • Helps ensure uniform justice and continuity in court decisions
  • Helps judges and attorneys in the consistent application of the law
  • Prevents a single judge in a lower court from issuing decisions that are out of line with what higher courts have determined as established law
  • Makes the legal and judicial systems more efficient by precluding the need for courts to examine the same legal issue over and over again with every similar case
• Stare decisis applies both horizontally and vertically - judicial precedents should govern subsequent decisions both by the same court that established the precedent and by all lower courts in that court's jurisdiction
• UK Order 53


  The regulations controlling judicial review in the UK
• Original precedent


  When a point of law has never been decided before, the judge's decision will form a new precedent for later cases to follow
• Mauritius operates under the British legal system, but the Supreme Court is the only court to which we may go for a judicial review there
• In the case of Donoghue v Stephenson (1932), the ratio decidendi has been interpreted in different ways by different judges
• Binding precedent


  A precedent from an earlier case that must be followed even if the judge in the later case does not agree with the legal reasoning
• Judicial review

  A legal process that allows individuals or organisations to challenge the lawfulness of decisions made by public bodies, including government agencies and local authorities
• Persuasive precedent


  A precedent that is not binding on the court, but a judge may consider it and decide to follow it
• Sources of persuasive precedent

  • Courts lower in the hierarchy
  • Privy Council decisions
  • Obiter dicta statements
• Prior to 1977, the party seeking relief within the Court's authority could only request one remedy. Every order has a unique procedure and order, which is why the legislation was so disorganized. However, Order 53 was changed in 1977, which led to a more unified legal framework regarding Judicial Review remedies
• The House of Lords was previously bound by its own previous decisions, but this became increasingly unsatisfactory as the law could not alter to meet changing social conditions
• Section 119 of the Constitution which vests the Supreme Court with the power to conduct judicial review, gives a different status and foundation to such a mechanism in Mauritius
• In 1966, the Lord Chancellor issued a Practice Statement giving the House of Lords the power to overrule its own previous decisions
• Court of Appeal

  • Bound to follow its own previous decisions, with three exceptions identified in Young v Bristol Aeroplane Company (1944)
  • Some appeal court judges, particularly Lord Denning, felt they should have more scope to overrule their own decisions after the 1966 Practice Statement
• Distinguishing


  When a judge decides the material facts of the case in front of them are sufficiently different from the material facts of the case containing the precedent, they are not bound by the precedent
• Overruling


  When a court in a later case states that the legal rule decided in an earlier case has been wrongly decided
• Reversing


  When a court higher up the hierarchy overturns the decision of a lower court in the same case
• The development of the law on intention in murder cases demonstrates how precedent can lead to changes in the criminal law over time
• Advantages of precedent

  • Provides certainty in law
  • Judges have clear cases to follow
  • Lower courts follow higher courts
  • Leads to an orderly development of the law
  • Case law is derived from real situations, making it viable and intelligible
  • The law can develop flexibly, with the ability to correct unwelcome developments
• Section 82 of the Constitution expressly recognises the fundamental difference between appeal and review in the relationship between the Supreme Court and subordinate courts
• Grounds for Judicial Review

  • Excess of power
  • Ultra-Vires rule
  • Abuse of power
  • Unreasonableness
  • Natural Justice
• Ratio


  The legal principle or rule established by a court's decision
• Excess of power

  When a public entity exceeds the authority granted to it by the Legislature
• Ultra-Vires

  When a public entity's actions or decisions go beyond the legal authority or powers granted to it
• The defendant also communicated to the wife his intention to "see about a divorce."
• Abuse of power

  The use of authority for unlawful purposes, including taking into account irrelevant factors or ignoring pertinent factors when making a decision
• While the wife was staying at her parents' house, the defendant forced his way in and attempted to have sexual intercourse with her, in the course of which attempt he assaulted her.