Sources of law Judicial Precedent

What you need to know Stare decisis – stand by what has been decided Ratio decidendi - the rule of law on which a decision is based - e.g. Cunningham Obiter dicta- things said by the way – aeroplane scenario in Moloney Persuasive precedent - does not have to be followed e.g. decisions of lower or foreign courts (Thabo Meli) Binding precedent - has to be followed Original precedent - law made as there was no precedent or statute to follow (Bland) Distinguishing two cases as not quite the same so the first one does not have to be followed (Balfour v Balfour, Merritt v Merritt) Overruling - a previous decision is ruled wrong so can no longer be used as precedent Reversing - the result of a case changes as it goes through the appeals process.

The Hierarchy of the Courts Courts are usually bound by the courts above them and those on the same level. European Court of Justice House of Lords Court of Appeal Divisional High Courts Inferior Courts

House of Lords The Practice Statement London Street Tramways 1966 - Lord Gardiner Limitations When has it been used? Herrington (1972) Jones v Secretary of State for Social Services (1972) Miliangos v George Frank (1976) Pepper v Hart (1993)

House of Lords The Practice Statement Criminal cases Shivpuri (1986) overruling Anderton v Ryan (1985) R v R (1991) R v R & G (2003) overruling Caldwell Lord Denning’s unsuccessful campaign to allow the Court of Appeal to use the Practice Statement (Broome v Cassell, Miliangos v George Frank)

Court of Appeal Young v Bristol Aeroplane Co (1944) Usually follow own previous decisions 3 exceptions – later House of Lords decision, 2 conflicting decisions, per incuriam (Williams v Fawcett) Extra exception for criminal cases – “in the interests of justice” - Taylor or Gould

How has precedent been used to develop the law? Law reporting Law of Contract (Carlill v The Carbolic Smoke Ball Co) Law of Tort – negligence (Donoghue v Stevenson), nuisance, trespass Criminal law – murder, involuntary manslaughter, many defences

Advantages and disadvantages of Binding Precedent Certainty Consistency and fairness Precision Flexibility Timesaving Disadvantages Rigidity Complexity Illogical distinguishing Slowness of growth

Possible reform Codes of law – but they have their own problems Less rigid precedent Prospective overruling

Common mistakes Not answering the questions Confusing the hierarchy of the courts Not using the source Not looking at dates or which court is in application questions Vagueness Not using cases Not knowing the material

How to avoid these mistakes Read the questions Answer the questions asked Use the source Use other cases or information Balance your evaluation - make sure you put both sides of an argument Revise thoroughly