Flashcards in Precedent(1) Concept, Justification And Basic Rules Deck (13)
Was is the meaning of ‘Precedence ?’
Earlier decisions on the same matter which judges will follow. I.e judges look at how previous judges have looked at the same/similar issue that has reached the same result.
When was case law becoming popular?
Late 18th century, early 19th century
What’s is the aim of precedence?
More than prove consistency but set out rules of law
What is the term used for precedence that judges must follow?
What is binding in a case?
How the judge came to that reason for his/her decision
Finish the sentence
What is binding is the __________, but what creates law is the ________ for _________.
What is the meaning of ‘stare decisis et non quieta movere’?
To stand by decisions and not disturb settled matters
What are some benefits of stare decisis I.e.letting the decision stand?
- discourages litigation on settled law ( which reduces costs and enables predictability)
- Promotes consistent development of legal principles ( judges build upon previous decisions, which is how the law moves on. Seldom that a reasoning is overturned)
- Fosters a reliance on judicial decisions (people know what the law is)
- Contributes to integrity of judicial comity and judicial process (ensures judges think the same way)
- There is a natural equity in like cases being treated alike
- Reduces vagaries of differing judicial values and therefore promotes certainty.
What is a disadvantage of stare decisis?
It solidifies the law, meaning it freezes the law into thinking in one mindset rather than move with the time and becoming more modern.
17th C copyrights and the law of defamation 19th century- electronics
What are the basic rules of precedence in Scottish courts?
- UK Supreme Court is binding upon all lower courts, it used be the House of Lords. * since 1966 the practise direction ensured that decisions made in the House of Lords were binding later on in the House of Lords
- the inner house of court of sessions: binding to all lower courts ( outer house and sheriff court) its NOT binding to itself but judgments are very persuasive * bench of 3 can be bound by bench of 5 or more
- the outer house of court of sessions: single judge therefore not binding upon any courts except the parties in front of them.
- the sheriff appeal court: binding to all sheriffs in Scotland, they are highly persuasive can persuade court of sessions.
- sheriffs bind no one except parties in front of them
What are the basic rules of precedence on English courts?
- UK Supreme Court binds all lower courts
- court of appeal (civil division) binds all lower courts including itself
- court of appeal ( criminal division) binds lowers courts except itself because of liberty of individual
- divisional courts: bind lower courts except themselves or each other
- crown court, county court and family court: first instance so bind no one except parties in front of them
What are some factors that make a judgement PERSUASIVE?
- The level of court:
* English Supreme Court can be persuasive for Scottish courts and vice versa. Donohugh v Stevenson 1932
* Keiden and Stienfield (English case) Ashers Baker v Lee (Northern Ireland case) determine Scots law
* English court of appeal highly persuasive for Scottish courts. Payne v Payne 2001
* commonwealth supreme courts can be persuasive. Lister v Helsey Hall 2002
- Reputation of judge
- Strength of argument
- whether the result has generally been followed i.e. long line cases following earlier decision. Corbett v Corbett 1971