public law seminar 2 real

1. What does stare decisis mean?

“Let the decision stand.” Lower courts must follow binding decisions from higher courts when the cases are sufficiently similar.

2. What is the difference between ratio decidendi and obiter dicta?

Ratio decidendi: the legal reason needed to reach the decision. It can bind later courts. Obiter dicta: other comments that are not needed for the decision. They can influence judges but do not bind them.

3. What is the minimum-basis test for finding the ratio?

Ask: what is the smallest legal rule needed to explain the decision? That is the likely ratio. Comments not needed to decide the case are likely to be obiter.

4. How do you know whether an earlier case binds a court?

Check three things: does the earlier court bind this court; are the important facts sufficiently similar; and does the earlier legal rule apply in the relevant legal system?

5. Does the Sheriff Appeal Court bind the Court of Session’s Outer House? Why?

No. The Sheriff Appeal Court is lower in the civil hierarchy. Its decisions do not bind the Outer House.

6. What is Scotland’s civil court hierarchy?

Lowest to highest: Sheriff Court; Sheriff Appeal Court; Outer House; Inner House; UK Supreme Court. For appeals: Sheriff Court to Sheriff Appeal Court, then potentially Inner House. Outer House to Inner House. Inner House to UK Supreme Court. A case does not pass through every court.

7. What is Scotland’s criminal court hierarchy?

JP Courts hear minor crimes. Sheriff Courts hear more serious crimes. The High Court hears the most serious crimes and the highest ordinary criminal appeals. Summary Sheriff appeals go to the Sheriff Appeal Court. Solemn Sheriff and High Court trial appeals go to the High Court Appeal Court. Only limited human-rights or devolution issues can reach the UK Supreme Court.

8. How can judges avoid applying an earlier precedent?

Distinguish it: important facts are different. Reinterpret it: explain its legal rule differently. Per incuriam: rarely, argue that the earlier decision involved a legal mistake. Overrule it: reject the rule if the court has power to do so. A lower court cannot ignore binding precedent just because it disagrees.

9. What is the difference between a first-instance case and an appeal?

First instance: the case is heard for the first time, and the facts are usually decided. Appeal: a higher court reviews the earlier decision, usually to check whether the law was applied correctly.

10. Which court heard Donoghue v Stevenson [1932] AC 562, and was it an appeal?

The House of Lords. It was an appeal from the Court of Session’s Inner House.

11. What happened in Donoghue v Stevenson?

A friend bought Donoghue ginger beer at a café. Donoghue claimed that a decomposed snail came out of the dark glass bottle and that she suffered shock and illness. She blamed Stevenson, the manufacturer. These claims had not yet been proved at the appeal.

12. Who was the appellant and who was the respondent in Donoghue v Stevenson?

Donoghue was the appellant: she brought the appeal. Stevenson was the respondent: he answered it.

13. What action did Donoghue bring against Stevenson?

She brought a civil claim for £500 compensation, saying his careless manufacture of the ginger beer caused her injury. This was a negligence claim in delict, rather than a contract claim.

14. Who won the Donoghue appeal, and how did each judge vote?

Donoghue won 3–2. Atkin, Thankerton and Macmillan voted for her. Buckmaster and Tomlin disagreed. She could continue her case and try to prove it; she was not awarded compensation at this appeal.

15. What is the ratio decidendi of Donoghue v Stevenson?

A manufacturer must take reasonable care to avoid injuring the final consumer when the product will reach them without a reasonable chance of being checked first. This duty can exist even without a contract between them.