Law Paper One

Parliamentary Law Making

Judicial Precedent

Lay People

Structure Of The Courts

Top: Supreme Court

Court Of Appeal

Criminal Division

Civil Devision

High Court

Queen's Bench Division

Chancery Division

Family Division

Crown Court

Magistrates' Court

County Court

Key Principles

Ratio Decidendi

The Reason For Deciding

The Binding Part Of The Judgement

Courts Higher Lower In The Structure Are Bound To Follow The Decisions Of The Higher Courts

Forms Of Precedent

Original Precedent

A Point Of Law Which Has Never Been Decided before

HUNTER AND OTHER V. CANARY WHARF

Binding Precedent

Precedent From Earlier Cases Which Must Be Followed, Even If The Judge Does Not Accept The Legal Prinicple

Persuasive Precedent

Non Binding Decisions Persuading A Judge To Accept The Legal Prinicple

Courts Lower In The Hierarchy

Decisions Of The Judicial Committee Of The Privy Council

R V. R

HOLLEY Followed By KARIMI AND JAMES

Obiter Dicta

A Dissenting Judgement

DONOGHUE V. STEVENSON

The Neighbour Test

GOTTS And HOWE

Decisions From Courts In Other Countries

R V. PARKS

Law Reports

Precedents Relies On Accurate, Comprehensive Law Reports

Guidance For Judges From Previous Decisions

Written By Specialist Lawyers

Authorised By The Judge Of The Case

Structure

Name Of Case

Court In Which It Was Heard

Name Of The Judges

Date Of Decision

Summary Of Facts And Legal Issues

List Of Cases And Statutes Referred To

Names Of Counsel Appearing

Judgement Given

Publishers

The Times

Guardian

The England Law Report

Avoiding Precedent

Overruling

Distinguishing

Disapproving

ANNS V. MERTON

MURPHY V. BRENTWOOD

When A Court Is Asked To Review Whether A Precedent Created By A Court Lower In The Hierarchy Is Correct In Law

ECJ And Supreme Court Can Overrule Their Own Previous Decisions

The Use Of The Practice Statement

YOUNG V. BRISTOL AEROPLANE

Per Incuriam

PEPPER V. HART Overrulled DAVIS V. JOHNSON

HEDLEY BYRNE V. HELLER Overruled CANDLER V. CRANE CHRISTMAS

When A Judge Can Use This Method To Avoid Following A Past Decision He Would Otherwise Be Bound By Precedent To Follow

MERRITT V. MERRITT And BALFOUR V. BALFOUR

R V. BROWN And R V. WILSON

Different Material Facts

Advantages And Disadvantages

Advantages

Certainty

Consistency And Fairness In The Law

Precision

Flexibility

Timesaving

People Know What The Law Is Which Has Benefits For All

. Lawyers Can Advise Their Clients Accurately

The Public At Large Know What Is And Is Not A Criminal Offence And Gauge Their Behaviour Accordingly

Cases That Have Similar Facts Will Decided In The Same Way

It Prevents Judges Making Random Decisions And Ensures Justice Is Achieved By Treating The Same Issue In The Same Way.

The Law Becomes Extremely Precise And Well- Illustrated And Is Built Up Over A Period Of Time Through The Variations That Make It To Court

Judgements Are Responses To Real Life Situations Which Set Out Legal Principles To Be Applied In The Future.

There Is Room For The Law To Be changed By The Courts

Out Dated Precedent Can Be Overruled

Allows The Courts To Deal With Situations Not Envisaged By Parliament

Once A Principle Is Clear, Few Are Likely To Clog The Courts Challenging The Law

Disadvantages

Rigidity

Complexity

Illogical Distinctions

Slowness Of Growth

Undemocratic

Retrospective Effect

Unlike Parliamentary Law Which Comes Into Force On A Set Date, Judge-Made Law Takes Effect On The Case In Question.

This Can Be Considered Extremely Unjust Because At The Time,Those Involved Would Have Considered Themselves To Be Acting Lawfully.

R V. R

The Basis Of This Criticism Is That Judges Are Not Elected And Constitutionally, It Is Parliament That Should Make The Law, Judges Interpret It

Judges Do Make Law To A Greater Or Lesser Extent But There Is No Redress Should We Feel Decisions Made Are Bad, Unlike With Our Politicians That We Can Vote Out Every 5 Years.

Allowing The Court Of Appeal Flexibility In Following Its Own Previous Decisions As The System Of Precedent Does Not Allow For Swift Change

Distinguishing Allows For ‘Hair- Splitting’ To Avoid A Precedent You Don’t Want To Follow.

Judgements Are Long And It Is Sometimes Difficult To Find What The Ratio Is

R V. BROWN

Given The Time Taken And Hurdles To Be Jumped For Cases To Make It To The Most Significant Appellate Courts, If Bad Decisions Are Made By Those Courts, We Are Often Stuck With Them For A Long time.

The Supreme Court

Flexible View On Its Own Past Decision

LONDON STREET TRAMWAYS V. LONDON COUNTRY COUNCIL

Certainty In The Law Is More Important Than Individual Hardship

DPP V. SMITH

Parliament Changed The Law In This Regard In The Criminal Justice Act 1967

Practice Statement 1966

Changing The Rule In LONDON STREET TRAMWAYS

Can Depart From Previous Decisions When It Appears Right To Do So

Only Applicable To The Supreme Court

HERRINGTON V. BRITISH RAILWAYS BOARD

A Duty Of Care On British Rail To look After Their Fences

Authority Changed From ADDIE V. DUMBRECK

PEPPER V. HART Overruled In DAVIS V. JOHNSON

The Court Of Appeal

An Appeal Court That Has Greater Influence On The Changing Of Precedent As It Hears Far More Cases Than The Supreme Court

Has To Follow The Supreme Court Decisions

Lord Denning Tried To Alter This

BROOME V. CASSELL & CO

MILIANGOS

Bound By Its Own Decisions

YOUNG V. BRISTOL AEROPLANE COMPANY

The Court Of Appeal Can Choose Between Its Own Conflicting Decisions

If Its Own Previous Decision Has Been Disapproved By The Supreme Court, It Should Not Be Followed

The Court Of Appeal Is Not Bound By Decisions Of Its Own Made Per Incuriam

Used In Rare And Exceptional Cases

RICKARDS V. RICKARDS

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