judicial precedent

What does stare decisis mean

stand by what has been decided & do not unsettle the established

requires a later court to use the same reasoning as an earlier court where two cases raise the same legal issues

what are the elements of stare decisis

• like cases are decided alike

• ratio decidendi

• binding precedent

• persuasive precendent

• options when deciding a case

what is meant by like cases are decided alike

when a judge decides that a case is similar on the facts to a previous case, he should follow the decision taken by the judge in that previous case

case examples for like cases are decided alike

Grant v Australian Knitting Mills followed the principle established in Donoghue v Stevenson

what is ratio decidendi

the principle of law on the basis of which the case has been decided that can form a binding precedent that other courts must follow

case example & what the ratio decidendi was

Donoghue v Stevenson - neighbour principle - you should take reasonable care to avoid acts or omissions which you can reasonably foresee would likely injure your neighbour

what is original precedent

when a new situation arises that has not previously come before the court, the decision will form an original precedent

case example for original precedent

Hunter v Canary Wharf

what are the 5 forms of persuasive precedent & case examples

• decisions of lower courts - R v R

• privy council decisions - Willers v Joyce (English courts must follow binding precedent even where a PC decision conflicts with it)

• commonwealth court decisions - Australian decision in Sutherland Shire Council v Heyman was adopted in Caparo v Dickman

• obiter dicta - Ivey v Genting Casions

• dissenting judgements - dissenting judgement in Liversidge v Anderson was taken into account in HM Treasury v Ahmed & Others

what does obiter dicta mean

other things said

when a judge makes a comment on the law that is not exactly to do with the point in dispute in that particular case

not binding but may influence decisions

what are dissenting judgements

where a judge disagrees with their colleagues but is in the minority, they will set out their reasons in a dissenting judgement

what are the options when deciding a case

• follow

• overrule

• reverse

• distinguish

case examples for follow

Robinson v CC of West Yorkshire - followed the decision in Hill v CC of West Yorkshire

when can a court overrule a decision

if the relevant earlier decision was made in a lower court & the judge disagrees with that courts interpretation of the law, it can be overruled

does not change the original outcome but is not followed it the later case

case examples for overrule

Hedley Bryne v Heller overruled the decision in Candler v Crane

what is meant by reversing

where, on appeal, the higher court considers that the lower court has interpreted the law wrongly, the appeal court then substitutes the previous decision with its own interpretation of the law

case example for reverse

McLoughlin v O’Brien

what is distinguishing

where a court considers that the material facts of the case are hearing to be materially different, they are not bound by previous precedent

case examples for distinguish

Merritt v Merritt - distinguished from Balfour v Balfour

What is the court hierarchy

Supreme (binds all lower courts, binds itself unless the 1966 practice statement is used)

Appeal (higher & itself)

High (higher)

Crown, county, magistrates (higher, doesn’t create)

case example for practice statement

Conway v Rimmer - first use

case example for appeal court & what was held

Young v Bristol Aeroplane Co - confirmed that it is bound by its past decisions but that there are 4 exceptions to this rule

1. previous decision is made in ignorance of relevant law

2. conflicting court of appeal decisions - court must choose which one to follow

3. conflicting Supreme Court decisions - Supreme Court decision

4. in criminal cases where the law has either been misinterpreted or misunderstood - the court must reconsider its earlier decision

what are law reports and why are they important

for judicial precedent to operate, there needs to be an accurate record of decisions

an accurate record of judgements has been available since the establishment of the Incorporated Council of Law Reporting in 1865

all follow a common format, making them easier to read

advantages of precedent

• creates certainty in the law, because like cases are decided alike - allows lawyers to advise their clients on the likely outcome of cases

• allows flexibility, which means the law can keep up to date with social change - e.g. Practice Statement 1966 - allows Supreme Court to change its mind when its ‘right to do so’

• just & fair that like cases are decided alike - everyone should be treated in the same way- accords with the rule of law & creates confidence in the legal system

disadvantages of precedent

• the system of precedent is complex - with over half a million reported cases, it can be hard to find out what the law is, e.g. Central Asbestos Co v Dodd

• allows for judges to make the law - undemocratic, as judges are not elected - contrary to the separation of powers & infringes parliamentary sovereignty

• can lead to rigidity - lower courts must follow decisions of higher courts - the law may not keep up with social change