Judicial Precedent In Court Cases

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Chapter 3: Judicial Precedent
1. Intro
-Judicial Precedent refers to the judges in the earlier cases create law for future judges to follow.
-It is based on principles of stare decisis, involves treating like cases alike which means it only applies to similar facts as it should be treated in the same way.
-However, precedent relies on the court structure and efficient system of law reporting. The lower court is bound by the decision of the higher court.
-It was recommended by 4 Ayers/ Eyers who were judges not to adjudicate but to improve the court system. The principles of stare decisis was adopted from Roman Law with a twist to make it binding in order to get more people to use the court system.
-Judicial Precedent promotes certainty and
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Balfour’s case is just a domestic arrangement between husband and wife but Merritt’s case is a legally binding contract as the couple has lost the trust between each other.
-where a court in later case states the legal rule decided in an earlier case is wrong.
-The higher court can overrule the earlier decision made by the lower court or a past decision of its own.
Pepper v Hart (1993)
-The House of Lords overruled its own past decision in Davis v Johnson (1979) which the Hansard could be consulted when the court trying to decide the meaning of certain words in an Act of Parliament.
Those tools discussed above only contribute some degree of flexibility. The reversing and overruling can be done by higher court. The later lower court cannot overruling the previous higher court decision but they can decline to follow the precedent if the decision made per incuriam. Reversing will affect the party in that case whereas overruling will only affect the parties in future case. Distinguishing can be done by higher court and lower court but it is only when the facts in both cases are sufficiently dissimilar.

4. The hierarchy of court
Supreme Court/ House of Lords
-the most senior national court in English Legal System.
Position before
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5. Advantages
-Accessibility to court
Getting more people to settle their disputes in court. It is due to the certainty and predictability of precedent.
-Degree of flexibility
The decision of previous court can be overruling, distinguishing and reversing. The House of Lords can use Practice Statement 1966 to depart its own past decision.
-Original Precedent
The system allows judges to create original precedent if the particular point of law never been decided by previous judges. It is a method to ensure the justice or just decision is achieved.-ReA, Airedale NHS Trust v Bland (1993) 6. Disadvantages
-The system is rigid due to the binding precedent
The bad decision may perpetuated if the higher court did not overrule it.
-There are large number of decided cases in court.
It may be time consuming and lengthen the ligation because the ratio is not easy to find out.
-Retrospective effect
Legislation created by Parliament are prospective whereas the decision decided by court is retrospective which is unfair to the offender.
-Promote laziness
As the job of the judge is only refer to previous decision and does not consider the matter

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