Persuasive precedent is a decision of a lower court which may influence the higher court, where the legal facts are similar or slightly different. It may also be made by the Judicial Committee of the Privy Council, another jurisdiction or things said obiter. The Supreme Court binds all lower courts and generally binds itself due to London Tramways Co v London County Council 1898. The Practice Statement 1966 says that following precedent is a good thing as it enables us to know exactly what the law is and we can behave accordingly. Despite this, it is stated that following precedent too rigidly may cause an injustice.
There is a strong case for both sides of this argument, but I believe that the power level given to judges is the right amount in relation to how important a role they play in supporting British society to work to its full potential through their requirement of upholding the law. Although, there is a strong argument to claim that despite this, they may not be the right people for the role as their independence and neutrality can be questioned, with a view that their power should potentially be limited. One of the strongest arguments, which can be used to defend the power given to the judiciary, is that despite what many believe, they can not over rule government, and government can in fact overrule the judiciary through their sovereignty, and this was backed by Lord Neuberger, head of the Supreme Court who claimed that the thought of parliament not being sovereign is ‘quite simply wrong’, highlighting the fact that the power is ultimately not with the judiciary. The judges do not have the power to repeal any laws despite their opinions on them; their job states that it is obligatory for them to enforce the law despite their personal opinions. However they do have the ability to make suggestions to possibly amend the law through highlighting flaws.
Andrew Robertson proposed two categories of policy considerations: ‘justice between the parties’1 and ‘justiciability, community welfare and other non-justice considerations’2 which concerns the effects that recognition of the duty may have on legal system or on people’s behaviour.4 Even when no public policy matters are said to be concerned and the decision reached on the basis of foreseeability and proximity proves desirable, the decision actually conforms to the former sense of policy where it is thought to be fair among the parties to do so. Hence, it should be correct that ‘in modern times, the courts…have recognised that whether a duty of care arises or not is ultimately a matter of policy’5 One of the reasons why policy often restrict liability is the fear of
He takes his position as a legal superior very serious and understands that if he changes the ruling on the case that it would undermine all the hard work the lower courts put forth. Foster Foster looks at all the facts and takes the case as a personal decision. Ruling
The British Judiciary is supposed to display both judicial independence and judicial neutrality, in order to assure they abide by the laws when making a ruling. Judicial independence is the principle that judges are supposed to be free of political control in order to allow them to apply justice using the law without fear of any consequences. Judicial neutrality is where judges operate impartially so they are without any personal bias when making a decision, this is important when applying rule of law. In this essay I will be tackling whether the British Judiciary is truly free from these influences and branches of Government, to prove whether or not it is truly Independent and Impartial. The British Judiciary has gained more independence throughout recent years, this is shown by creation of the Constitutional Reform Act (CRA) of 2005 which led to the formation of the Supreme Court in 2009, this created a whole new branch of independence as the highest court in the UK officially became separate from parliament, as it was moved out of the House Of Lords to be relocated across Parliament Square.
There was procedural fairness in his judgment as he quoted from Chitty on Contracts 28th edition paragraph 3–074, which proved to be the ratio decidendi in the case, if not very persuasive obiter dicta. There seemed to be procedural fairness in how Judge Waller LJ decided this case as the negotiation and promises between two parties are enforced to ensure a fair result simply by following the law and its precedence. This is to keep in line one of the virtues of this approach, which is certainty. He also took a ‘Consumer Welfarism’ approach in this case as he looked at Boots perspective and gave protection to the weaker party, as Boots was being pressured into choosing Amdahl as suppliers by giving them an extension but also reducing the buyback prices. This seemed to be a marketing tactic in
Conclusion Recognizing the importance of uniformity and predictability in this sensitive area of the law, I conclude that the rule for tort liability should conform to state and federal statutory and administrative law. Because both state and federal law now require warnings in English but not in
This clearly shows an effective protection of liberty by judges. Furthermore, a vital protection of liberties can be exercised via judicial review. Judicial review is a process that is conducted in the Supreme Court that hears an appeal over lawfulness of a case. It is not focused on the rights and wrongs of a case, this would be a case for appeal courts following the above methods, judicial review is simply an examination of the lawfulness of a case. For example, in the case of Home Secretary v. AP 2010 an appeal allowing the government to detain AP on a control order
c) The courts tend to look at the preamble and the long heading of the Act (usually found in Private and older Public Acts). Titles, annotations and punctuation may be considered also, however it is only to help make clear the meaning of vague words. RULES USED IN INTERPRETATION:- Judges can find assistance for the interpretation of law under a number of rules, following are the rules listed. 1. Literal Rule - The Literal Rule in a stature are clear and unambiguous, and it must be given its exact or ordinary meaning when used in court, regardless of the outcome.
The reason that they do is because they are the final say in all matters. When we look at the Supreme Court we see that it is there job to make sure that all people are tried fair and that there rights aren’t being taken away. When the Supreme Court makes rulings in cases we can only hope that their philosophy isn’t all one sided. They really should be a well-rounded group of conservative, liberal and moderate. If they all were to think alike on all matters then it would be hard to see if they were really keeping with the constitution and really protecting the rights of the people.