Common Law

The decisions of courts made over centuries, these take the form of cases



Precedent

A decision of a court on a particular set of facts which must be followed by that court and lower courts in the future upon the occurrence of a similar set of facts

This may provide two points of law

  1. Ratio decidendi -

  2. Obiter dicta - things said by the way; they do not form part of the ration decidendi and are not binding on future cases but merely persuasive

A statement based on the facts, but which des not form part pf the basic of the decision

Donoghue v Stevenson (1932) for the establishment of the duty of care principle as an example of a ration decidendi

Advantages

  • Certainty

  • Saves parliamentary time

  • Saves legal costs

  • Flexibility

  • Detail

Disadvantages

  • The system can limit judges’ discretion

  • Social situations change but the precedent may fail to adapt

  • Bad precedents may be established


Avoidance of a binding precedent

There are a number of grounds on which a court may decline to follow