Sources of lawSources of law

Judicial PrecedentJudicial Precedent

What you need to knowWhat 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 CourtsThe Hierarchy of the Courts

Courts are usually bound by the courtsabove 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 House of Lords The Practice StatementThe 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)

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)

House of Lords House of Lords The Practice StatementThe Practice Statement

Court of AppealCourt of Appeal Young v Bristol Aeroplane Co Young v Bristol Aeroplane Co (1944)(1944)Court of Appeal

•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 How has precedent been used to develop the law?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 Advantages and disadvantages of Binding Precedentof Binding Precedent

Advantages

• Certainty

• Consistency and fairness

• Precision

• Flexibility

• Timesaving

Disadvantages

• Rigidity

• Complexity

• Illogical distinguishing

• Slowness of growth

Possible reformPossible reform

•Codes of law – but they have their own problems

•Less rigid precedent

•Prospective overruling

Common mistakesCommon 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 mistakesHow 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