Judicial Precedent

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LEGAL METHOD / LEGAL & BUSINESS STRUCTURES

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Lecture outline 2

You are not required to read the lecture outlines before the relevant lecture. However, you will find it helpful if you do.

An introduction to the operation of judicial precedent

What are cases?

What do they tell us?

Why are they important?

A word of warning – reading cases is difficult!. It becomes easier with practice, but you must read the judgments carefully.

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* The doctrine of precedent – an overview

You need to understand some basic principles

Court hierarchy

Appeals system

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The traditional “rules of precedent”

An illustration – Juliette has an accident

The doctrine of stare decisis

Higher court | Usually binding |

Lower court | ...................... |

Same court | May be binding |

What will the judgment contain?

As you have seen a judgment is NOT a transcript of the trial

Often a judge may begin by explaining briefly the issue(s) in the case and expand on this later in the judgment.

The facts of the case are simply an explanation of ‘what happened’ in order for this dispute to be brought to court and the law on which the claim is based e.g. the relevant criminal offence with which the defendant was charged or an allegation of negligence (the ‘nature of the claim’).

Establishing the facts

A question of proof.

The parties may agree some or all of the facts prior to trial. Disputed facts must be proved by the party with responsibility for establishing the facts (the burden of proof) to satisfy the appropriate standard (standard of proof).

When analysing a reported case, you must be able to distinguish ‘facts’ from ‘law’.

The “decision”

Ratio decidendi (the “ratio”)

Obiter dictum / obiter dicta (“obiter” or “dicta”)

The ratio...