Judicial Precedent & Negligence

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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.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...
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