Judicial Precedent


So, what is Judicial Precedent?

Better known as Precedent, it is based on the term stare decisis.

Stare Decisis: Stand by what has been decided by the previous cases.

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Ratio Decidendi and Obiter Dicta

  • Ratio Decidendi (Ratio): Only part of the outcome that forms a precedent. All lower courts must follow the ratio of the previous cases.
  • Obiter Dicta (Obiter Statement): The Remainder of Speech. Judges don't have to follow the obiter statement but they can, and is a form of persuasive precedent.
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Types of Precedent

  • Original Precedent: Used when the point of law has never been decided, and it will form future precedent.
  • Binding Precedent: A precedent from an earlier case that must be followed, even if the judge does not agree with the outcome. This only happens when the facts of cases are similar.
  • Persuasive Precedent: Not binding, but the judges may consider and decide if it is a correct principle.
  • Dissenting Judgements: Where the majority judges are not followed, for example a 3:2 split.
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The Hierarchy of Courts

  • Every court is bound by decisions made in courts higher than them.
  • European Court of Justice (ECoJ): A decision made by them is binding in all courts, and they are able to overrule their own decisions.
  • Supreme Court (Formerly the House of Lords/HoL): Binds all the courts below, and they are not bound by previous decisions under the PRACTICE STATEMENT 1966.
  • Courts of a Lower Hierarchy: 
    R v R: The House of Lords agreed with the Court of Appeal (CoA) in deciding that a man could be guilty of marital ****.
  • R v Howe: ruled duress could not be a defence for murder. This obiter statement was later used in R v Gotts, whom attempted to use duress as an excuse for attempted murder.
  • London Street Tramways v London County Council: The HoL cannot reverse their own decision, not competent to rehear the case.
  • Court of Appeal (CoA): Must follow their previous decisions, unless one of the three exceptions apply that came from Young v Bristol Aeroplane.
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The Exceptions for the Court of Appeal

  • Young v Bristol Aeroplane decided that:

1. Must follow if it is conflicting.

2. Bound to refuse to follow the decision.

3. Not bound to follow the decision of it's own if it is satisfied that what was given is per incuriam.

Davis v Johnson: Court of Appeal refused to follow the decision regarding interpretation of the domestic violence and matrimonial proceedings act.

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Distinguishing, Overruling and Reversing.


  • Balfour v Balfour and Merritt v Merritt: Also a legal intention case for A2. In Balfour, the husband to pay his wife whilst he was working away, whereas in Merritt they were living in amity and in Balfour they were not. 


  • Where the court in later cases' legal rule decided that the other case that it was wrong or caused an injustice. A higher court can overrule a lower courts decision, but lower courts cannot overrule the decision of a higher court.


  • When a court higher up in the hierarchy overturns decisions they have made previously of an appeal.
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Useful Precedent Cases!

  • Donoghue v Stevenson: Snail remains were in the drink of a woman. She could not sue the business owner but could sue the manufecturer for negligence.
  • Shaw v DPP: A ladies directory was made. It was a conspiracy to corrupt public morals and the appeal was dismissed. The House of Laws created a new crime after there was a dissenting judgement.
  • R v Gould: Committed bigamy on behalf of a mistaken belief. The appeal was allowed.
  • Rickards v Rickards: A divorce with a financial order. The court of appeal had jurisdiction to her appeal, and it was made per incuriam.
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