Binding, persuasive and avoiding precedent

Overview

Recall questions on original, binding and persuasive precedent, overruling, reversing and distinguishing, the Practice Statement 1966, the exceptions in Young v Bristol Aeroplane, per incuriam decisions, and Lord Denning's challenge to stare decisis.

What you need to know

Answer each one before you reveal it.

Questions from this subtopic

Each one with the model answer underneath.

1. 1

   What is binding precedent and how is it created?

   Model answer

   Binding precedent must be followed by courts lower in the hierarchy and is created by the ratio decidendi of a higher court's decision.

2. 2

   What is persuasive precedent?

   Model answer

   Persuasive precedent is not binding but may influence a court's decision.

3. 3

   Can decisions of lower courts ever influence higher courts, and if so, how?

   Model answer

   Yes, decisions of lower courts can serve as persuasive precedent, influencing but not binding higher courts.

4. 4

   How might decisions from courts in other countries affect English courts?

   Model answer

   Decisions from other jurisdictions can serve as persuasive precedent, potentially influencing English courts without binding them.

5. 5

   What role can dissenting judgments play in future cases?

   Model answer

   Dissenting judgments can serve as persuasive precedent, potentially influencing later courts even though they were not part of the majority decision.

6. 6

   What is original precedent?

   Model answer

   Original precedent is created when a court decides a point of law for the first time where no previous precedent exists.

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