Binding Precedent The English Legal System is hierarchical whereby the decision of a higher court binds lower courts. The doctrine of binding precedent‚ stare decisis‚ (stand by things decided) is at the core of the legal system. The Superior Court is at the top of the legal pyramid and its decisions bind all lower courts‚ except on civil cases involving European law where the European Court of Justice is the court of last resort. Below the Superior Court‚ we have the Court of Appeal‚ and it is
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A CRITICAL ANALYSIS OF THE DOCTRINE OF LEGAL PRECEDENTS ADITI GHOSH 2ND Yr. LL.B. (HONS.) INTELLECTUAL PROPERTY LAW RAJIV GANDHI SCHOOL OF INTELLECTUAL PROPERTY LAW IIT KHARAGPUR 15 August 2011 Table of Contents INTRODUCTION 1 WHAT IS MEANT BY A PRECEDENT? 2 TYPES OF PRECEDENTS 2 Original precedent 2 Authoritative or Binding precedent 2 Persuasive precedent 3 THE DOCTRINE OF STARE DECISIS? 3 HOW RELEVANT IS THE IDEA OF JUDICIAL PRECEDENTS? 6 WHAT IS THE BINDING ELEMENT OF A CASE? 7 WHY
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INTRODUCTION Case of Nocton V Lord Ashburton‚ House of Lords (1914) AC 932 It is an important English tort law case regarding professional negligence and conditions under which a person will be taken to have assumed responsibility for the welfare of another. MATERIAL FACTS In this case a solicitor‚ Mr. Nocton appealed after he was accused of fraud in the High Court. Mr. Nocton had advised his client Lord Ashburton‚ who is the respondent‚ to release part of his mortgage so that he could acquire
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take action against the property owner for negligence. If the case satisfies the duty of care owed‚ the breach of standard of care and the damage simultaneously‚ Elsie can sue the Promenade’s management for negligence. As is was explained in Donoghue v Stevenson 1‚ if the Elsie would closely and directly affected by the Promenade’s management’s act ‚then the Promenade’s management owe Elsie a duty of care. Elsie is a lawful customer. The Promenade’s management is the property owner. It is clear that
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compared to the risk of harm); What is the social utility of the activity generating the risk. These are the questions presented by section 9 of the Act. These principles have been derived from the Common Law. Cases such as Donoghue v Stevenson are particularly relevant. Donoghue was the case where Lord Atkin developed the ‘neighbour test’. The neighbour test asks “who should I have in contemplation as being someone that will suffer harm if I do a particular act or omit to perform a particular act”
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TABLE OF CONTENTS QUESTION 1- RATIO-THREE LEVELS OF GENERALITY 2 BROAD LEVEL OF GENERALITY: 2 MODERATE LEVEL OF GENERALITY: 2 NARROW LEVEL OF GENERALITY: 2 QUESTION 2- OBITER 3 OBITER 1: 3 OBITER 2: 4 OBITER 3: 4 QUESTION 3- ADVANTAGES AND DISADVANTAGES OF JUDGES AS SOCIAL PLANNERS 5 ADVANTAGES OF JUDGES AS SOCIAL PLANNERS 5 Advantages in relation to Amadio 6 DISADVANTAGES OF JUDGES AS SOCIAL PLANNERS 7 Disadvantages in relation to Amadio 8 QUESTION 4- IN HOUSE RULES 8 RULE 1 8 RULE
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in question Donoghue v Stevenson Neighbour Principle: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour- Who‚ then‚ in law‚ is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question Donoghue v Stevenson Reasonable
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The Application of Precedent • The process: relevant circumstances in the present case; rule to be applied to the case must be discovered by examining previous similar cases (precedent); rule applied to the circumstances of present case. Example 1 • Considine v Shannon regional Fisheries Board [1994] Costello J: ‘principle of precedent is easy to state‚ but is difficult to apply in practice’ • The issue: after a not guilty verdict (acquittal) in the District Court‚ could an appeal could
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is owed to another person. For example‚ a surgeon owes a duty of care to whoever they operate on. The existence of a duty of care is established by the Neighbour Test which was brought in by Lord Aitken after the Donoghue v Stevenson case; In the Donoghue v Stevenson case‚ Ms Donoghue was bought a ginger beer by a friend‚ and drank it‚ unknown to her‚ there was a snail in that ginger beer. She wanted to claim for damages but she did not buy the ginger beer so she couldn’t. instead‚ she sued the
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negligence then the following elements must be satisfied. * Duty of care * Breach of the duty EXAMPLES: Experience Of Harm Arising From That Breach. Donoghue V. Stevenson A case of tort on negligence is only successful if the following five elements are met. Firstly‚ a duty of care must be evident. Donoghue v. Stevenson. Given this fact‚ we also need to know whether the consequences of the defendants act were reasonably foreseen. In case of the family friendly fishing company and
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