Chapter 5 holland and Webb week 1 foundations of law and social justice - The doctrine of judicial precedent

What is an indictment?

The formal document setting out the charge(s) against a defendant.

What are the particulars of the offence?

The specific facts alleged to constitute the offence.

Why must the CPS frame a charge according to recognised offences?

Because a defendant must be charged with a legally recognised criminal offence.

What are preliminary matters?

Legal or procedural issues dealt with before the main trial.

What does admissibility of evidence mean?

Whether evidence is legally allowed to be used in the case.

Why can appeals be particularly important to lawyers?

They can raise important questions about interpreting or developing the law.

What is a cause of action?

The legal basis that gives someone the right to bring a civil claim.

What are damages?

Compensation or another remedy sought for a legal wrong.

What four things must a lawyer consider when a client brings a claim?

Cause of action, relevant law, evidence needed, and appropriate court.

What is case management?

Procedures used to prepare and organise a case before trial.

What is a Directions hearing?

A pre-trial hearing where the judge gives directions on managing the case.

What is the judge's role in an adversarial civil trial?

Remain impartial, hear both sides, apply the law and decide the dispute.

What are civil appeals generally concerned with?

Points of law, with permission usually required to appeal.

What must a claimant have to bring a civil case?

A cause of action — a legal basis for bringing the claim.

What does analysing a case involve?

Matching the facts of the case to the relevant legal principles.

What are the standards of proof in civil and criminal cases?

Civil = balance of probabilities; criminal = beyond reasonable doubt.

How do appeals contribute to judicial precedent?

The legal reasoning in appellate decisions can be reported in law reports and used as precedent in future cases.

What was the key legal issue in Kirby?

Whether being a professional driver was a “special reason” to avoid disqualification.

What was a “special reason” according to the court?

A reason special to the facts of the offence, not simply to the offender.

Why wasn't Kirby's job enough to be a special reason?

Being a professional driver was special to Kirby, not to the offence itself.

What is an appeal by way of case stated?

A route of appeal where a higher court decides a legal point arising from a lower court's decision.

What did Lord Goddard's wording suggest?

The principle might apply to professional drivers generally, not just lorry drivers.

Why were further cases needed after Kirby?

To establish how widely the legal principle from Kirby applied.

How can a case become a precedent?

Its legal reasoning can guide later judges in cases with similar legal issues.

What is the key lesson of the Kirby case?

Later cases help establish how widely an earlier judicial decision applies.

What is stare decisis?

The principle that binding legal decisions should be followed in later similar cases.

What does “let the decision stand” mean?

A lower court must follow the binding legal principle established by a higher court.

What part of an earlier case is important for judicial precedent?

The legal reasoning that was necessary for the decision.

How do you decide whether an earlier precedent applies to a new case?

Ask whether the legal principle from the earlier case applies to the new facts.

Why can't courts simply compare the facts of two cases?

No two cases will have exactly the same facts; the legal reasoning must also be considered.

What is the difference between the outcome and the legal reasoning of a case?

The outcome is who won; the reasoning explains why they won.

What is ratio decidendi?

The legal reasoning necessary for the court's decision, which can become binding precedent.

What is obiter dicta?

Additional comments by a judge that were not necessary for deciding the case; they are not binding.

Can a lower court ignore a binding precedent because the judge disagrees with it?

No. The lower court must generally follow it.

What is the main point of Household Fire Insurance v Grant in this chapter?

It shows how lawyers and judges identify and interpret the legal principle established by an earlier case.

What was the legal issue in Household Fire Insurance v Grant?

Whether acceptance of an offer by post occurs when the letter is posted or when it is received.

Why isn't judicial precedent simply about comparing the facts of two cases?

Because courts must identify and interpret the legal principle behind the earlier decision.

What does a lawyer need to identify from an earlier case?

The legal principle that can be derived from the decision.

What is the key question when applying a precedent to a later case?

Whether the legal principle from the earlier case applies to the new facts.

Why does precedent involve argument?

Lawyers argue about how the legal principle from an earlier case should be interpreted and applied to the new case.

How does this relate to ratio decidendi?

The ratio decidendi is the legal reasoning necessary for the decision, which can form binding precedent.

What is an offeror?

The person making the offer.

What is an offeree?

The person receiving the offer.

What is acceptance?

Saying “yes” to an offer.

What is a contract?

A legally enforceable agreement.

What does liability mean?

Legal responsibility for something.

What is a liquidator?

A person who deals with a company’s affairs when it is being wound up.