Sources of law Judicial Precedent

What you need to know Stare decisis – stand by what has been decided Stare decisis – stand by what has been decided Ratio decidendi- the rule of law on which a decision is based - e.g. (Cunningham) 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) 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) Persuasive precedent - does not have to be followed e.g. decisions of lower or foreign courts ( Thabo Meli) Binding precedent- has to be followed Binding precedent- has to be followed Original precedent- law made as there was no precedent or statute to follow (Bland) 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) 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 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. 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 European Court of Justice House of Lords House of Lords Court of Appeal Court of Appeal Divisional High Courts Divisional High Courts Inferior Courts Inferior Courts

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

Criminal cases Criminal cases Shivpuri (1986) overruling Anderton v Ryan (1985) Shivpuri (1986) overruling Anderton v Ryan (1985) R v R (1991) R v R (1991) Rv R & G (2003) overruling Caldwell Rv 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) 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) Court of Appeal Court of Appeal Usually follow own previous decisions Usually follow own previous decisions 3 exceptions – later HL decision, 2 conflicting decisions, per incuriam. (Williams v Fawcett) 3 exceptions – later HL decision, 2 conflicting decisions, per incuriam. (Williams v Fawcett) Extra exception for criminal cases – “in the interests of justice” Taylor or Gould 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 reporting Law of Contract (Carlill vThe Carbolic Smoke Ball Co) Law of Contract (Carlill vThe Carbolic Smoke Ball Co) Law of Tort – negligence, (Donoghue v Stevenson) nuisance, trespass Law of Tort – negligence, (Donoghue v Stevenson) nuisance, trespass Criminal law – murder, involuntary manslaughter, many defences Criminal law – murder, involuntary manslaughter, many defences

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

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

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

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