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judicial precedent (binding, persuasive, original) - Coggle Diagram
judicial precedent (binding, persuasive, original)
PERSUASIVE
this is a precedent that is not binding but the judge may consider it, decide that it is a correct principle and be persuaded that it should be followed
Courts lower in the hierarchy: R v R - HoL/Supreme Court agreed with and followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife - CoA was persuasive and HoL followed it
decisions of courts in other countries: this is especially so where the country uses the same ideas of common law as in the English system
Commonwealth countries such as Canada, Australia and New Zealand - Bazley v Curry - a Canadian case which was considered in Lister v Hesley Hall Ltd
BINDING
this is a precedent from a previous case that must be followed if the decision was made by a court that is senior to the court hearing the later case
a precedent set by the Court of Appeal Civil Division must be followed by all lower courts in the hierarchy and will generally be followed by later cases heard by the Court of Appeal - STARE DECISIS
ORIGINAL PRECEDENT
if the point of law arising in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow as the original precedent
as there are no previous cases for the judges to base the decision on previous cases that are the closest principle will be considered with similar rules used
this way of arriving at a judgment is called reasoning by analogy - judge will try to say something specific about the case being dealt with based on the fact that it is 'like' another example in a certain way
Hunter v Canary Wharf - Lord Hoffman's view was that anyone may build whatever they like upon their land even if it interferes with the light, air or view of a neighbour
some say the judge is only declaring what the law is (as it is the first time deciding the law) and some say that judges do have a law-making role in these situations (as they are creating new law)
REVERSING
this is where a court higher in the hierarchy, in an appeal, overturn the decision of a lower court on appeal in the same case
CoA may disagree with a ruling of the High Court and come to a different view of the law - reverses that decision made by the HIgh Court
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DISTINGUISHING
Balfour v Balfour was decided that the claim could not succeed because there was no intention between them to create legal relations; there was merely a domestic arrangement between a husband and wife and so there was no legally binding contract
Balfour v Balfour was distinguished in Merritt v Merritt as in M v M, a different decision was reached and the CoA distinguished the otherwise binding decision of B v B
Although parties were husband and wife, the agreement was made, in writing, and after they separated
this was different as it was meant as a legally enforceable contract
this is a method that can be used by a judge to avoid following a past decision, which would otherwise have to be followed
means that the judge finds that the 'material' facts of the present case are sufficiently different to allow a distinction to be drawn between the present case and the previous precedent so that the precedent in the previous case is not binding
OVERRULING
overruling may occur when a higher court changes, or overrules, a decision made in an earlier case by a lower court, such as the Supreme Court overruling a decision of the Court of Appeal
Pepper v Hart
HoL rules that Hansard could be consulted when trying to decide what certain words in an Act of Parliament meant. This decision overruled in Davis v Johnson when the HoL had held that it could not consult Hansard
this where a court, in a later case, states that the precedent decided in an earlier case is wrong
FOLLOWING
when a judge considers a precedent is relevant to the case, and it is binding, then the precedent must be followed