Zusammenfassung der Ressource
Judicial Precedent (JP)
- 1. Intro
- Applying the
existing principles
to current problems
- Based on 'stare
decides': to treat
like cases alike
- Dependent on
court status
- Decisions of higher
courts are binding
on lower courts
- Courts may be
bound to their
previous decisions,
but there are
exceptions
- Rationale of
JP
- 1. Serves as
guidance
- 2. Encourage certainty in
law
- 3. Maintain traditional respect to
judges
- 4. Practicality
purposes
- 2. Binding
Precedent
- Decided case which a court
must follow if material
facts and issue in question
are similar, and the court is
a higher court
- Binding part of
judgement is
ratio decidendi
- Defined by Prof.
Goodhart: facts
deemed material by
judge, and his
decision based on
them
- Donoghue v Stevenson 1932
- Ratio = Duty of
Care
- Obiter = Neighbour
Principle
- Dynamic nature
between ratio and
obiter: obiter
changes into ratio
over time
- Facts of the
case
- 3. Persuasive
Precedent
- Persuasive in
nature
- Comes from obiter dicta,
and decisions by Privy
Council and foreign courts
- Weight to be
attached depends on
court status and
prestige of the judge
- 4. Tools of Departure
- (a)
Reversing
- R v Kingston
1994
- It is possible to reverse
and overrule in the same
case.
- (b)
Overruling
- (c)
Distinguishing
- Hillyer v St.
Bartholomews
Hospital
(1909)
- The doctor was a
consultant surgeon,
and hospital could
not be sued
vicariously since he
is not an employee
- Cassidy v
Minister of
Health (1951)
- The doctor was a
resident surgeon, who
is an employee of the
hospital and therefore
the hospital can be
liable vicariously.
- Depends on
amount of control
the hospital holds
over their
employees
- 5. Supreme Court
- Before PS
1966
- London Tramways
v London County
Council (1898)
- The House considers itself
bound by its own previous
decisions, as the highest
court of the land
- To promote certainty, gain
public confidence and put
an end to litigation
- Practice Statement
1966 by Lord Gardiner
- JP is an indispensable
foundation to determine law
and its application in cases
- Rigid adherence to it can
cause personal hardships
- Judges in the House can
depart when it appears 'right
to do so'.
- Judges should refrain from
making reforms in criminal
law, as certainty is crucial in
this aspect of law
- After PS
1966
- Guidelines were set in
what type of cases to
overrule
- Jones v Sec State
for Social Services
1972
- Use PS 1966
sparingly in the
construction of
statutes and
documents
- Food Corp of India v
Antclizo Shipping
1987
- Decision shall not be
overruled merely because
it causes gave concern,
but in an attempt to
resolve the dispute
- Conway v
Rimmer 1968
- Duncan v
Cammel Laird
1942
- Affidavit is binding since it
was a time of war, and if
document is disclosed, it
could harm British civilians
- Courts will decide whether a
minister's affidavit shall be
disclosed
- Herrington v British
Railways Board
1972
- Addie v Dumbreck
1929
- Occupier shall be liable
to trespassers if they
know there is a
potential danger and
have not done all a
humane person could
have
- There are more and more people
living in cities with railway tracks, and
thus the law shall be developed.
- R v R
1991
- Overruled Hale's
theory and made
marital rape an
offence
- Retrospective
offence
- R v Clegg
1995
- House was averse to
reduce murder to
manslaughter, and that
this change should
come from Pt.
- C v DPP
1995
- (a) Cautious imposing a remedy
when solution seems doubtful
- (b) If Pt. has rejected or legislated,
but left the problem untouched,
they should be cautious
- (c) Judges are better dealing with
legal problems, than social policy
- (d) Precedent should not be lightly set aside
- (e) Judges should not change the
law unless they can achieve
finality and certainty
- 6. Court of Appeal
- Exceptions From Young v Bristol Aeroplane 1944
- 1. Two conflicting COA decisions
- National Westminster
Bank v Powney 1990
- Tiverton
Estates v
Wearwell 1975
- Law v
Jones 1974
- Can choose which to
depart and which to follow
- 2. Later HoL decision conflicting
with CoA previous decision
- Westminster City
Council v Clarke 1992
- Family Housing
Association v
Jones 1990
- CoA does not follow its
previous decision where its
previous decision is
inconsistent with HoL decision.
- 3. Per Incuriam
- (a) Reached by overlooking
statutes or case law
- (b) Produce serious inconvenience
in the administration of justice
- (c) Ignoring previous HoL decision
- Duke v Reliance System 1982
- 1. Uncited statute
or case law
- 2. Defence is wide and
therefore care must be
taken in relying upon it
- 3. Recent developments
show it produces
inconvenience to justice
- 7. High Court
- 7. + / - of Precedent
- 1. Reasonable flexibility
given to Supreme Court
- 3. Promotes certainty to
a certain degree to
provide predictability in
court decisions
- 4. Overrules decisions to
ensure proper
development in law to suit
changing needs of society
- 5. Exceptions given to CoA
and High Court allow
greater flexibility
- 2. Only Supreme Court shall
overrule decisions using PS
1966 because judges are
experienced enough to
consider the long-lasting effect
of judicial law reform
- a. Retrospective overruling
- b. May take longer for
decisions to be overruled,
CoA is often the last
resort due to finance and
limited grounds of appeal.