JUDICIAL PRECEDENT (1)
- Created by: hannahmorgan31
- Created on: 15-03-16 16:44
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- Judicial precedent
- Hierarchy of the courts
- 2) The House of Lords
- most senior court in England and Wales
- Binding on all other courts in the English Legal System
- Are able to use the practice statement to overrule past decisions; used with caution
- 3) Court of appeal
- 2 divisions: criminal and civil
- Each division isn't bound by eachother
- Must follow their own past decisions, although there are some exceptions
- 4) Divisional Courts (of the High Court)
- bound by past decisons
- 5) All other courts
- rarely set precedent
- bound by past decisons
- 1) The European Court of Justice
- can overrule their past decisions
- 2) The House of Lords
- The doctrine of Judicial Precedent
- based on the principle that legal decisions made by a judge in a case (common law, judge made law, case law) set out precedents which must be followed by that court and all courts below it in cases of similar fact.
- A judgement of a court of law cited as an authority for deciding a 2nd case with a similar set of material facts; the first case serves as an authority for the legal principle embodied in the second decision
- CASE: Donoghue V Stephenson 1932
- a woman visited a cafe with her friend and she bought some ginger beer. She fell ill as the beer contained a decomposed snail, so she sued the manufacturer for negligence.
- CASE: Grant V Australian Knitting Mills 1936
- the defendant has bought an undergarment from a retailer and contracted dermatitis from it as a result of present excess sulphite. The defendant was found liable since they owed a duty of care towards the consumer
- CASE: Donoghue V Stephenson 1932
- ‘Stare decisis’ means ‘let the previous decision stand’ and refers to when a judge makes a point of law in a case, this must be followed by a judge in similar cases.
- Parts of the judgement
- ratio decedendi
- Binding
- in giving a judgement, the judge will give the material facts of a case, the law applicable and the legal reasoning
- "any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusions
- obiter dicta
- Persuasive (speculation)
- Any observation made by the judge on a legal question suggested by the case before him
- CASE: R V Howe
- RATIO: duress couldn't be used as a defence to the charge of murder
- OBITER: duress wouldn't be available as a defence to someone charged with attempted murder
- obiter applied in R V GOTTS
- CASE: Re A
- RATIO: the passive euthanasia was necessary to save the other twin (they shared a vital artery)
- OBITER: If they were brought to court criminally they have the defence of necessity
- CASE: Donoghue V Stephenson
- OBITER: speculation of who the neighbour is- any person affected by their actions
- obiter applied in Shaw V DPP
- RATIO: manufacturer should owe a duty of care to any person affected by their actions
- ratio decedendi
- Hierarchy of the courts
- CASE: Donoghue V Stephenson
- OBITER: speculation of who the neighbour is- any person affected by their actions
- obiter applied in Shaw V DPP
- RATIO: manufacturer should owe a duty of care to any person affected by their actions
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