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Judicial Precedent Essay Paper

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Part 1. Judicial Precedent “Stare decesis et non quieta movere” – roughly translated means “Stand by what has been decided and do not unsettle the established” – This is the main legal principle, which judges are obliged to follow the already set-up precedents, established by prior decisions. This means that a decision made in one case can be binding on all following cases under similar circumstances. The principle of stare decisis consists of two components. The first is the rule that a decision made by a superior court is binding which an inferior court cannot change.

The second type of precedents will not be delved into any further at this point. A binding precedent (also mandatory or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom. Judges are bound by the law of binding precedents in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. Two facts are crucial to determining whether a precedent is binding: 1.

Judicial Precedent Essay

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The current court’s position in the court hierarchy, relative to the position of the court that decided the precedent. 2. Whether the facts of the current case come within in the scope the principle of law in previous decisions. In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his decision. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent. The other two principles besides ratio decidendi.

They are: Law reports Precedents can be found in law reports and the doctrine of judicial precedent depends upon an accurate record being kept of previous decisions. Law reports have been published since 1865 under the control of what is now called the Incorporated Council of Law Reporting for England and Wales, which is a joint committee of the Inns of Court, The Law Society and the Bar Council. They are commonly referred to as Law Reports, and they have priority in the courts, because the judge who heard the case sees and revises the report before publication.

Since 1953, reports began to be published on a weekly basis, which can be found in newspapers and magazines such as the “Guardian”. Court Hierarchy First is the House of Lords. They are the highest authority and are bound only by their own decisions, except for example where the previous decision had been made per incuriam (where an important case or statute was not brought to the attention of the court when the previous decision was made) A step below the House of Lords there is the Court of Appeal, which is bound by its own previous decisions as well as those of the House of Lords.

The Court of Appeal may choose which decision to follow, if there are two conflicting decisions on the same level. It will also not follow a decision of its own if that decision is inconsistent with a decision of the House of Lords or the Privy Council. The decisions of the Court of Appeal are binding on the lower civil courts, i. e. the High Court and the Country Court. The Divisional Courts’ decisions are bound by the above two and generally by their own previous ones.

A divisional court would mostly follow its previous decisions or those of another divisional court but could in rare cases exercise its power to refuse to follow a previous decision if it’s convinced that it was wrong. The High Court is bound by the House of Lords’ and the Court of Appeal’s decisions, however not bound by other High Courts. The Crown Court is bound by the House of Lords, Court of Appeal and the High Court. Below the Crown Court there are Magistrates’ courts and country courts and the Employment Appeal Tribunal, whose decisions have almost no binding power whatsoever.

For the Judicial Committee of the Privy Council, the same thing can be said. Avoiding the use of the Judicial Precedent. When a court is invited to follow a precedent, it may refuse to do so. Judges have several tools in their arsenal to avoid the use of a binding judicial precedent. One of them is distinguishing the case now before it from the previous case on the facts. This is applicable when the court considers that important points in the case are in conflict with the previous decision, which it is being invited to follow.

Other situations in which the binding precedent may be avoided is when for example the decision, which the court is invited to follow is one of many contradicting decisions on the same level or when finding the previous decision to be per incuriam. For higher courts in the hierarchy, it’s possible to overrule or reverse decisions made by lower courts if after when the case is re-examined, the higher court comes to a decision that is different from the taken one. A reversal of a decision affects both parties and it also affects precedent, because lower courts will be bound to this decision in the future.

Overruling a decision however, affects precedent, but does not affect parties and i. e. it is not mandatory for a successful claimant to return his damages. Furthermore, the case could not be tried again because of the rule of res judicata (a matter which has been adjudicated on) which protects defendants in such cases. Importance of Case Law. Case Law provides most of the law in the country and at this point it would be impossible to provide judgment without it. The parliament is becoming much more active in making new laws and statute law may dominate the common law, however until the point when this happens, everything relies on case law.

Part 2. Negligence Negligence is a large and amorphous subject, concerned to make moral judgements about the quality of a person’s behaviour. In order to establish the existence of negligence, first it must be proved that there is a presence of a duty of care. Duty is but one element in the tort of negligence, for it must be shown that not only was the defendant under a duty towards the claimant to be careful, but also that he failed to achieve the required standard of care and that that failure caused the damage, and finally that the damage was not too remote a consequence of the act.

Any discussion of the duty of care starts naturally with Donoghue v Stevenson, probably the most famous of all UK civil cases. Lord Atkin’s judgment, founding the duty on reasonable foreseeability of injury to one’s neighbour, has come to be recognised as the cornerstone of the modern law of negligence. The claim itself, of course, arose out of the plaintiff allegedly having drunk ginger beer manufactured by the defendant which contained the decomposed remains of a snail. So it was a case about physical injury caused by positive negligent conduct on the part of the defendant.

In these circumstances the fact that the defendant ought to have foreseen injury to the plaintiff created a sufficiently close or proximate relationship as to give rise to a duty to take care. In cases possessing these two features the elements of foreseeability and proximity will, indeed, normally be satisfied. A duty of care usually will be imposed without too much difficulty. Therefore, it must be established in the present case that Grant ought to have foreseen that, by driving too fast, an accident might happen which would result in destroying property and hurting people.

Furthermore, the relationship between Grant and Ian must be examined in order to determine whether there is a significant proximity, sufficient to meet the requirement of Lord Atkin’s neighborhood principle. If the Court accepts that Grant should have, in fact, taken reasonable care to prevent other people from being physically injured by driving slowly and carefully, it might as well be assumed that the nature of the relationship between Grant and Ian is exactly the same as if Ian had been another participant of the traffic.

In Anns v Merton London Borough Council, Lord Wilberforce, in much discussed words, sought to provide a solution by formulating a two stage test of duty. First, one has to ask whether as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.

Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. This new approach was quickly accepted by the New Zealand Court of Appeal, and later by the Supreme Court of Canada. But it was not embraced in the same way in Australia. In Sutherland Shire Council v Heyman Gibbs CJ gave support but Brennan J and Deane J rejected it.

At the same time the House of Lords itself began having second thoughts, and in Caparo Industries plc v Dickman the two stage test came to be abandoned. Lord Bridge emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope. His Lordship said that whether the courts will recognise a duty of care in any particular case depends on the foreseeability of the harm, the proximity of the relationship between the parties and, generally, considerations of fairness and reasonableness.

These concepts of proximity and fairness are not, he noted, susceptible of such precise definition as would be necessary to give them utility as practical tests, but amount, in effect, to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.

Lord Bridge proceeded to quote with approval the words of Brennan J in Sutherland, that the law should develop novel categories of negligence incrementally and by analogy with established categories rather than by a massive extension of a prima facie duty of care restrained only by indefinable stage two considerations. In general, Ian could sue Grant for damage recovery because Grant owes a duty of care to all people that he endangers by driving too fast and too risky. Although there is no direct relationship between Grant and Ian, Ian has suffered physical and property damage as a result of Grant’s negligence.

By applying Lord Atkin’s neighbourhood principle, it could be assumed that Ian would succeed in his claim against Grant.

Bibliography Carney, D. D. (2006). Introduction to English Law. Pearson Education. Cooke, J. (1999). Law of Tort. London: Pitman Publishing. McBride, N. J. , & Bagshaw, R. (2005). Tort Law. Longman. Quinn, E. &. (1996). Tort Law. London: Pearson. Slapper, G. , & Kelly, D. (2000). English Law. Cavendish Publishing Limited. Smith, K. , & Keenan, D. (2001). English Law. Longman.

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Judicial Precedent Essay. (2019, Dec 07). Retrieved from https://paperap.com/paper-on-essay-judicial-precedent-negligence/

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