Judicial Precedent

• What is binding precedent?


  Precedent that must be followed. The ratio decidendi of a case is binding. It is binding on courts of the same level and on all courts below.
• What was the ratio decidendi of Donoghue v Stevenson (1932)

  Manufacturers owe a duty of care to their ultimate consumers.
• What is persuasive precedent?


  Precedent that may be followed by judges in cases of similar fact but does not have to be. It may be helpful to a judge making a decision.
• If a judge decides to follow a past decision that was not binding, the decision is said to have been?

  Persuaded
• What is an example of persuasive precedent?

  Obiter dicta- other things said
• What other 3 persuasive precedents are there?


  Decisions made in lower courts, decision made not within the English hierarchy, statement of law made by a dissenting judge.
• Decisions made in lower courts- example


  R v R (1991)- House of Lords followed the Court of Appeal when they decided to make marital rape a criminal offence
• Decisions made not within the English hierarchy- example


  Wagon Mound (1961)- the decision made in this case became an important part of the law in negligence in England and Wales
• What was the outcome of Wagon Mound (1961)?

  The type of damage caused by the oil spill causing the fire was not reasonably foreseeable.
• Another example of decisions of courts not within the English hierarchy?


  Re S (1992)- where it was up to the courts to decide with a hospital could perform a C- section on a mother who refused on religious grounds, because it would save her life.
• Statement of law made by a dissenting judge- example

  Lord Denning made a dissenting judgement in Candler v Crane Christmas (1951) which was persuaded in a later case now forms the basis of law regarding negligent misstatement.
• What is an original precedent?


  This is created by a judge when they decide a case that has never been before the courts. The decision my be made 'by analogy' meaning it is based on a similar case.
• An example of original precedent is contained in which case?

  Donoghue v Stevenson (1932)
• What are the 3 ways of avoiding precedent?

  distinguishing, reversing and overruling
• What is distinguishing?


  If the material facts of a case are significantly different from the facts of an earlier case, the judge in any court does not have to follow the precedent that has already been established.
• Distinguishing is the main device used by judges to avoid a precedent.


  The judge is not bound to follow a precedent, it can be distinguished and may form a precedent itself. The first case will remain a binding precedent for cases of similar fact.
• An example of distinguishing?


  In R v Brown (1993) the House of Lords decided that consent to suffer serious injuries from sado-masochistic acts is no defence to charges of ABH. But in R v Wilson (1996) the Court distinguished the ratio of Brown as Mr and Mrs Wilson were a married couple and the branding of the knife could be a form of bodily decoration similar to tattooing.
• What is reversing?


  A superior court may reverse the decision of a lower court in the same case.
• Example of reversing?


  The the Gillick case in 1985, the High Court found in favour of the Health authority. But this was reversed by the Court of Appeal, and then reversed a further time by the House of Lords.
• What is overruling?


  This is a procedure whereby a court higher up in the hierarchy sets aside a legal ruling established in a previous case.
• The House of Lords/Supreme Court can use the Practice Statement 1966 to overrule one of their earlier cases- example?


  The decision in Herrington which overruled the decision in Addie v Dumbreck (1929) and allowed a claim by a trespasser for injury suffered on an occupier's land.
• The Supreme Court stands at the top of the English and Welsh court structure, and its decisions are binding on all lower courts. It is also the final appeal court for criminal and civil cases. 


  The creation of the Supreme Court was provided for by the Constitutional Reform Act 2005, until then the final appeal court was the House of Lords.
• Until 1966, the House of Lords regarded itself as bound by its own previous decisions unless the previous decision was made per incuriam- through lack of care. 


  This approach was stated by the House of Lords in the case of London Street Tramways v London County Council (1898).
• The Practice Statement 1966 was issued by the Lord Chancellor, Lord Gardner. 


  It allowed the House of Lords to change one of their previous decisions when 'it appears right to do so'.
• Uses of the Practise Statement


  Herrington (1972) where the House of Lords overruled the decision made in Addie v Dumbreck (1929) which meant that an occupier of a premises did owe a duty of care to a trespasser. It led to the Occupiers Liability Act 1984.
• Uses of the Practise Statement 


  Conway v Rimmer (1968) was the first use of the Practise Statement. It a minor change to the law and meant that both parties in a case were required to disclose all documents.
• Uses of the Practise Statement.


  R v Shivpuri (1986) was the first use of the Practise Statement in a criminal case. The defendant was guilty of committing a crime he did not commit as he had the mens rea.
• Use of the Practise statement.


  Hall v Simmons (2000) which meant that barristers can now be sued for negligence.
• The court of Appeal is directly below the Supreme Court in the English and Welsh court structure. It is bound by the decisions of the Supreme Court.


  It is divided into 2 divisions- Criminal and civil. Decision made by the Civil Division are binding on courts below in civil cases and same for the criminal Division in criminal cases.
• Each division of the Court of Appeal is usually bound by its own previous decisions with some exceptions


  But the 2 divisions do not bind each other. As a general rule, the Court of Appeal is bound by its own previous decisions.
• What case set out the circumstances in which the court of Appeal can refuse to follow a past decision?

  Young v Bristol Aeroplane Co. (1944)
• If a previous Court of Appeal decision conflicts with a later Supreme Court decision, the Supreme Court decision must be followed.


  This happened in Family Housing Association v Jones (1990)
• If there are 2 conflicting decisions of the Court of Appeal, then they must choose between them

  This happened in Parmenter (1991) where the Court of Appeal had to choose between 2 conflicting decisions based on foresight of harm to a baby.
• If a previous decision was made per incuriam, the decision will lose its binding force. 


  This happened to the decision made in Rickards v Rickards (1989) where the Court of appeals believed they 'misunderstood' an earlier decision of the House of Lords.
• What is the extra exception for criminal cases? 


  It considers whether the previous decision was wrong and will do injustice to the defendant as occurred in R v Taylor (1950).