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Judicial Precedent Essay

2214 words - 9 pages

Judicial Precedent

Setting a precedent is providing an example for others to follow.
Legal precedent is however slightly more complicated. It is the term
given to a previous decision, a particular stance or view, judge's
Statement, or the effect of certain fact(s) present within a past
case; which dictates or influences the adjudication or verdict of a
later case. Or put simply 'a reason for deciding a particular issue as
established by a judge in a previous case'.

Judicial Precedent is separated into the three Latin named sectors
which define a judgement:-

Stare Decisis, (the literal interpretation 'let the decision stand').
This is the

verdict of the case, upon which sentencing occurs in criminal cases
and compensation is awarded in civil. This term expresses the
principle of precedent, that one should 'stand by' ones previous
decisions. For example in the case of R V Collins, ex parte S, the
Stare Decisis would be that S won the case.

Ratio Decidendi, this is what forms the precedent of a case, because
it is the reason or reasoning behind the judges decision, so sets an
example to those adjudicating later cases of what verdict they must
come to. For example in Hedley Byrne and Co. Ltd V Heller and Partners
Ltd (1964) the ratio of the case was 'a person owes a duty of care
when making a statement to persons when it is reasonable to expect
that he or she will act in reliance on that statement'.

Obiter Dicta, (by the way) is a statement made by the judge which did
not directly affect, nor determine the outcome of the case. For
example in Donoghue V Stevenson (1932) where the 'neighbour principle'
as the basis of the duty of care was expressed as a wide
generalisation, was therefore obiter rather than the ratio of the
case.

There are two types of Obiter dictum:

* A statement of law based upon facts which were either not found to
exist or if found, were not found to be material. As in Rondel V
Worsley (1969) where the judge expressed hypothetical opinions on
Barrister's liability in tort and a Solicitor's immunity from this
liability when acting as an advocate. Where the case actually
concerned a Barristers liability for damages for negligence, when
acting as an advocate.

* A statement of law although based on facts found, which does not
contribute to the ratio of the case. These are often dissenting
judgements, made by Judges who do not agree with the majority
decision in a Court of Appeal or House of Lords case.

Theoretically there are two types of Judicial precedent:- Persuasive
and Binding.

Persuasive precedent does not legally have to be followed, because
they do not directly affect the verdict of a case. There are
considered three main types of Persuasive precedent.

1. Obiter Dictum always form...

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