There are three different types of precedent.
original precedent is referred to the initial, new precedent to be set as there is no previous decision the judge to follow until that point of time. It means that there will be new set of the ratio decidendi to follow in the similar future cases. Normally, as there was no earlier decision to follow, the judge would give the reason by analogy. However, judges would try to look for the nearest cases to consult. As an example of an original precedent, there is a famous case Donoghue v. Stevenson (1932) which brought major development on negligence law. Although there was a concept of a duty of care within particular circumstances, generally between contractors, this case widened its application and the point of law as Lord Atkins made the precedent as known as the neighbor principle.
binding precedent refers where the present case has to follow the previous decision when there is a sufficient similarity of the facts in the later case and the previous decision was from the higher positioned court or the court in the same level. In other words, the inferior court is bound to follow the superior courts’ decision when dealing with similar case.
persuasive precedent is more flexible on its sources. Although it is not binding to the court hierarchy, judges are able to use precedent if they find it necessary for the case or sufficient reasoning. Not only it is opened to use the obiter dicta, it is also opened to the precedents made by lower courts. This was illustrated in the case of R v Gotts (1992), the court of Appeal followed the obiter dicta of R V Howe (1987) case as a persuasive precedent on deciding the non-availability of duress as to a charge of attempted murder. In addition, a dissenting judgment which means a judgment of disapproval of the majority and the decisions made in other countries can also be used as persuasive precedent. This can be founded in the case of McLoughin v O’Brian (1983) which was about nervous shock in negligence.
The persuasive precedent can be from treaties, decisions from the privy council and even law review articles within the right extent of reputation of the author and the relevance to the case. is referred to the initial, new precedent to be set as there is no previous decision the judge to follow until that point of time. It means that there will be new set of the ratio decidendi to follow in the similar future cases. Normally, as there was no earlier decision to follow, the judge would give the reason by analogy. However, judges would try to look for the nearest cases to consult. As an example of an original precedent, there is a famous case Donoghue v. Stevenson (1932) which brought major development on negligence law. Although there was a concept of a duty of care within particular circumstances, generally between contractors, this case widened its application and the point of law as Lord Atkins made the precedent as known as the neighbor principle.
The binding precedent refers where the present case has to follow the previous decision when there is a sufficient similarity of the facts in the later case and the previous decision was from the higher positioned court or the court in the same level. In other words, the inferior court is bound to follow the superior courts’ decision when dealing with similar case.
The persuasive precedent is more flexible on its sources. Although it is not binding to the court hierarchy, judges are able to use precedent if they find it necessary for the case or sufficient reasoning. Not only it is opened to use the obiter dicta, it is also opened to the precedents made by lower courts. This was illustrated in the case of R v Gotts (1992), the court of Appeal followed the obiter dicta of R V Howe (1987) case as a persuasive precedent on deciding the non-availability of duress as to a charge of attempted murder. In addition, a dissenting judgment which means a judgment of disapproval of the majority and the decisions made in other countries can also be used as persuasive precedent. This can be founded in the case of McLoughin v O’Brian (1983) which was about nervous shock in negligence.
The persuasive precedent can be from treaties, decisions from the privy council and even law review articles within the right extent of reputation of the author and the relevance to the case.
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