FINAL ASSESSMENT ANSWERSKAPLAN PUBLISHING
Tutorial help and key points:
The key word here is 'briefly', so detail can be limited.In (a), the main points are the three factors: hierarchy, material facts, 'ratio' not 'obiter'statements.In (b), there are five exceptions to the doctrine of precedent.
(a) The UK courts are generally bound by their earlier decisions, based onthe following three principles:(i) The hierarchy of the courts. As a general rule, higher courts bindlower courts in this (descending) order: ECJ, House of Lords,Court of Appeal, High Court. [1–2](ii) Decisions are binding where the important or 'material' facts arethe same. (iii) Only the 'ratio decidendi' aspect of a ruling (literally the 'reasonfor the decision') forms the binding part of a decision. This is theprinciple of LAW (not facts) on which the decision was based. [1–2](An example would be the principle of the duty of care owed by amanufacturer to a consumer established in
Donoghue v Stevenson (1932)
, not the fact that the consumer ate the partiallydecomposing remains of a snail.)Other statements made 'obita dicta' (literally 'other things thatwere said') are merely persuasive, not binding. A judge in a later case can choose to follow it but is not bound to do so. [1–2]The purpose of the doctrine of judicial precedent is to provideclarity and consistency in the law, yet retaining flexibility shouldthe law need to be changed. (b) A precedent is not considered binding in circumstances where:(i) it has been overruled by a higher court;(ii) the material facts differ from those of the earlier case, so it maybe 'distinguished on the facts';(iii) it has been overruled by statute;(iv) it was made per incuriam ('through lack of care'); or (v) where the ratio was obscure or ambiguous, such as where judges sitting on appeal (between three and five in each case)reach the same conclusion but for different reasons, so that ineffect there are several 'ratios'.[1 mark per point]
[Total max: 10 marks]