Judicial Precedent

Doctrine of Precedent

  • The doctrine of precedent is based on the Latin maxim stare decisis et non quieta movere usually shortened to stare decisis. This means to stand by what has been decided and do not unsettle the established. This means precedent is standing by what has been previously decided.
  • In practical terms, this means that where the same point of law is present and/or a similar situation occurs then previous decisions by other judges should be followed. This idea of treating similar cases, in the same way, helps promote the ideas of fairness, consistency and provides certainty in the law.
  • Law in the English legal system is developed from customs and the decisions of judges in cases, this is known as common law. In the legal, the doctrine of precedent means the courts must follow the decisions from above. Appeal courts follow their own previous decisions.
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Types Of Precedent

  • Original precedent is the idea that if a point of law has never been decided before whatever a judge decides would form a new precedent for the future. As there are no other cases to base their decision of off they will likely look at similar cases and then decide this is known as reasoning by analogy.
  • Binding precedent is when previous cases have to be followed even if the judge in a later case disagrees with the legal principle. This kind of precedent is formed only when one case is sufficiently similar to another case and the decision was made by a higher or equal court.
  • Persuasive precedent is when a precedent is not binding but the judge may consider it and decide that it is a correct principle and so is persuaded to follow the aforementioned precedent.
  • Persuasive precedent comes from several different sources:
  • If a lower court makes a decision and then is considered by a higher one it is not bound by the lower court but will consider their decision and may stand by it.
  • Decisions made by the Judicial Committee of the Privy Council are not binding as they are not part of the court hierarchy system, but as some of the judges are also members of the Supreme Court the judgments of the Privy Court are treated with respect and occasionally followed. An example of this can be seen in the law on the remoteness of damage in the tort system and the decision made by the Privy Council in the case of the Wagon Mound (No.1) (1961).
  • Obiter Dicta - this is the non-binding part of a judges decision and may include opinions and ideas about other cases and points of law which may be followed or discussed. 
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Types Of Precedent

  • Obiter Dicta - this is the non-binding part of a judges decision and may include opinions and ideas about other cases and points of law which may be followed or discussed.
  • Dissenting Judgement - When a case has been decided by a majority of judges like 2:1 in the Court of Appeal, the dissenting judge will have to explain why they ruled against the majority, this is in no way binding but may be considered in a further appeal to the Supreme Court or in a similar case.
  • Decisions of Abroad Courts, where other courts use similar systems like in Commonwealth countries and the ECHR may be considered in a judges decision.
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Hierarchy of the Courts

  • In England and Wales a very rigid doctrine of judicial precedent that has the effect that:
  • Every court I bound by any higher court in the hierarchy.
  • In general appellate, courts are bound by their previous decisions.
  • There are two exceptions to this rule:
  • When a decision is made by the Court of Justice of the European Union that the English courts have to follow.
  • When a case involves human rights the Human Rights Act 1998 requires the courts to take into account the decision, opinions, and judgments of the ECHR
  • Supreme Court - The most senior court in the country, its decisions bind all other courts in the country and is not bound by itself though it tends to follow them.
  • Court of Appeal - Is bound to follow the decisions of the Supreme Court and past decisions of the Court of Appeal although there are exceptions to this with the Criminal division being more flexible.
  • Divisional Courts - Is bound by both the Supreme Court and Court of Appeal as well as being bound by there previous decisions with similar exceptions to the Court of Appeal
  • High Court - Bound by the one above and binds the ones below, high court judges do not have to follow each other but tend to do so. In Carlton Industries it was held that when there are two earlier decisions which conflict then provided that the first decision has been fully considered in the later decision, the later one should be followed.
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Hierarchy of the Courts

  • Inferior Courts - these are the Crown, County and Magistrates Court. They are bound by all courts above them and never usually create a precedent, the one case where precedent is created is when a Crown Court judge rules on a point of law it technically creates a precedent for the magistrate's court but this doesn't have much of a practical effect.
  • The Court of Justice of the European Union - from 1973 the highest court affecting our legal system has been the EU Court of Justice. Points of law can be referred to this court by the English and Welsh courts. The court can only decide on the point of law and then the case comes back and the point I applied. Points of the law decided by the EU court are binding on all English and Welsh courts. The court is prepared to overrule its past decisions if it is necessary, this flexible approach to past precedents is seen in other European legal systems and is in contrast to our more rigid national court system.
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The Supreme Court

  • The main debate is to what extent to which the Supreme Court should follow its own decisions, the ideas have changed over the years.
  • Originally the view was that the Lords had the right to overrule its past decisions, however, in the nineteenth century this flexible approach has disappeared, by the end of the century the Lords held that certainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision, this can be seen in London Street Tramways v London County Council.
  • From 1898 to 1966 the Lords regarded itself as being completely bound by its own past unless the decision had been made per incuriam (in error). However, this idea of error refers only to situations where a decision had been made without considering the effect of a relevant statute.
  • This was not felt to be satisfactory. The law could not change to developing social conditions and they could only correct mistakes and instead had to wait for parliament to pass an act.
  • This happened in the law on intention as an element of a criminal offense, the Lords DPP v Smith ruled that an accused could be guilty of murder in that person had foreseen that death or very serious injury may arise out of their actions. This decision was heavily criticized as it meant that the defendant could be guilty even if he had not intended to cause death or serious injury, nor even realized that his actions might have that effect, eventually, parliament changed the law in 1967 passing the Criminal Justice Act.
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The Practise Statement

  • When it was realized that the Lords should have more flexibility, in 1966 the Lord Chancellor issued a practice statement announcing a change to the rule that said:
  • Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the orderly development of legal rules.
  • Their Lordships nevertheless recognize that the rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They, therefore, propose to modify their present practice and while treating former decisions of their House as normally binding, to depart from a previous decision when it appears right to do so.
  • In this connection, they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
  • The announcement is not intended to affect the use of precedent elsewhere than in this House.
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Use of the Practise Statement

  • From 1966 the practice statement allowed the Lords to change the law if they believed an earlier case had been decided incorrectly, the phrase that allowed them to do this is quite vague and does not give much guidance to how and where the statement should be used and due to this the Lords where quite reluctant to use this power in the early years. The first case it was used for was in Conway v Rimmer but was more featured as a technicality.
  • The first major use was in 1972 in Herrington v British Railways Board where the Lords ruled that social and physical conditions had changed since 1929 and so should the law.
  • There was still a reluctance to properly utilize the power with the preference for certainty.
  • From the mid-70's the Lords showed a bit more willing to make use of the practice statement such as in Pepper v Hart. 
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The Practise Statement in Criminal Law

  • The Practice Statement stressed that criminal law needs to be certain, so it was not a surprise that the Lord did not rush to overrule any judgments in criminal cases. The first case it was used in was R v Shivpuri which overruled the decision in Anderton V Ryan on attempts of the impossible, the interesting thing was that the decision overruled was made only a year beforehand but had been highly criticized by law academics.
  • It was recognized in the Shivpuri case that actually they are not infallible and mistakes can be made and so it is up to them to ensure the law is changed to be correct. Where the practice statement is used the past case is essentially ignored. The law is now that set out in the new case.
  • A major case that used the practice statement is R v G, the Lords overruled their previous decision in the case of the Met Police Commissioner v Caldwell on the law of criminal damage. In Caldwell, the Lords ruled that recklessness included situations where the D had not realized the risk of their actions causing damage, but an ordinary careful adult would have realized there was a risk. In R v G it was held that this was the wrong test to use and instead held that the D is only reckless if he realized there was a risk and continues any way 
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The use of the Practise Statement by the Supreme C

  • When the Supreme Court replaced the Lords in 2009, the act that caused this also transferred over there powers to them, this was not clear about the Practice Direction.
  • In Austin v London Borough of Southwark which concerned tenancy law, the Supreme Court confirmed that the power to use the Statement had been transferred to them, but they did not use it in the case instead, taking the view that tenancy law should be certain.
  • They quoted from Knuller LTD v DPP where it said that: 'In the general interest of certainty in the law, we must be sure that there is some very good [reason to depart from previous law].
  • In 2016 the Supreme Court used the Practise Statement to overrule two previous decisions of the Lords in cases on what date damages should be calculated in tort law.
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The Court of Appeal

  • As aforementioned, there are two divisions of the Court of Appeal (CoA) and the rules are different in both divisions.
  • Firstly both divisions are bound by decisions of the Court of Justice of the European Union as well as the Supreme Court. There have been previous attempts to argue against being bound by the Lords mostly by Lord Denning.
  • In the case Broome v Cassell & Co. Lt, denning refused to follow an earlier decision by the Lords in the case Rookes v Barnard on the circumstances in which exemplary damages could be awarded. 
  • Again in the cases of Schorsch Meier GmbH v Hennin and Miliangos v George Frank Ltd, the CoA under Dennings leadership refused to follow a decision made by the Lords in the Case of Havana Railways which said that damages could only be awarded in Pound Sterling. Dennings argument for this was that the economic climate of the world had changed and Sterling was not still a stable currency and so in some cases, justice would be misdone and so instead damages should be delivered in another currency. 
  • In the cases mentioned above the former was not appealed to the Lords while the latter was as it was pointed out that officially the CoA could not overrule the Lord's decision, despite this, the Lords proceeded to use the Practise Statement to overrule their decision in Havana Railway.
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The Court of Appeal and its Own Decisions

  • The first rule is that decisions by one division of the Court does not bind the other division.
  • Within each division, however, decisions are normally binding,  especially for the Civil Division. This rule comes from the case of Young v Bristol Aeroplane Co. Ltd, within this the only exceptions allowed are: Where there are conflicting decisions in past CoA cases, the court can choose which one it will follow and which it will reject;
  • Where there is a decision of the Supreme Court which effectively overrides a CoA decision the CoA must follow that overruling.
  • Where the decision was made per incuriam, that is carelessly or by mistake because of a relevant Act of Parliament or other regulation has not been considered by the court.
  • The rule in Young's case was then confirmed in Davis v Johnson, in this case, the CoA refused to follow a decision made only days earlier regarding the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976.
  • The case then went to the Lordson appeal, where they, despite agreeing with the actual interpretation, ruled that the CoA had to follow its own previous decisions and said that they 'expressly, unequivocally and unanimously reaffirmed the rule in Young'.
  • Since this case, the CoA has not challenged the ruling in Young, though it has made some use of the per incuriam exception allowed by the case.
  • As an example, in Williams v Fawcett the court refused to follow previous decisions because these had been on a misunderstanding of the County Court rules dealing with the procedure for committing to prison those who break court undertaking
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The Court of Appeal and its Own Decisions

  • In Rickards v Rickards, Lord Donaldson said that it would only be in 'rare and exceptional cases' that the CoA would be justified in refusing to follow a previous decision.
  • The aforementioned case was considered a rare and exceptional case because the mistake was over the critical point of whether the court had the power to hear that type of case, it would also be unlikely the case would be appealed to the Lords or Supreme court.
  • Comment:
  • The main argument in favor of the CoA being able to ignore the Supreme court is that very few cases reach the Supreme Court, so if there is an error in the law it may take years before a suitable case is appealed all the way to the supreme court.
  • The cases of Schorirsch, Meier, and Miliangos illustrate the potential for injustice if there is no appeal to the Supreme Court. If in the case of Meier the court had decided that it had to follow the Lords ruling decision in Havana Railways it is very possible that the latter case of Miliangos would not have even been appealed to the CoA as it would have been a waste of money to appeal a point of law that both the CoA and the Lords had ruled on and therefore would be defined as fixed.
  • On the other hand, if the CoA could overrule the Supreme Court the system of precedent would fall apart and the law would become very uncertain. There would be two conflicting precedents for lower courts to choose from, making it difficult for judges to decide what to do, for lawyers to advise clients on the law. However, since Miliangos there has been no further challenge by the CoA to this basic idea in our system of judicial precedent that lower courts must follow the decision of courts above them in the hierarchy.
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The Court of Appeal Criminal Division

  • This division as well as using the exceptions from Young's case, it can also ignore its own past decisions if in that case the law has been misapplied or misunderstood. This extra exception was included because in criminal cases peoples liberties are involved, this was recognized in R v Taylor and R v Gould.
  • Also in R v, Spencer the judges said that there should not, in general, be any difference in the way that precedent was followed in the criminal and civil division except for the fact that in criminal cases they are directly dealing with peoples liberties and it is acceptable to depart from authority.
  • Stare decisis - the doctrine of precedent ins based on the Latin maxim stare decisis et non quieta movere normally shortened to stare decisis, this means to stand by what has been decided and to not unsettle the established. 
  • This means that where the point of law in the previous case and present case is the same, the court hearing the present case should follow the decision made in the previous case. This concept of treating similar cases, in the same way, promotes fairness and provides certainty in the law.
  • Precedent can only operate if the legal reasons for past decisions are known, so at the end of a case, there will be a judgment, this is a speech made by the judge/s giving the explanation and reasoning for the decision that they have made as well as a summary of the facts, reviews of the arguments presented to him and an explanation of the point of law they used in the decision.
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Ratio Decidendi

  • The principles which the judges use are an important part of the judgment and are known as the ratio decidendi, which is the reason for deciding and is what creates a precedent for judges to follow in future cases.
  • There can be more than one speech at the end of a case depending on the number of judges hearing the case, in first instance courts there is only one judge hearing the case and therefore only one decision, whereas in Divisional Courts and the Court of Appeal cases are heard by 2-3 judges and in the Supreme Court the panel of judges must be compromise of an uneven number, so it could be up to eleven judgments.
  • However, just because there is more than one judge does not mean there will be more than one judgment as one judge may simply say they agree with another judge. In cases where the ideas are quite complex often even if one judge agrees with another, they will also usually state their reasoning for agreeing, this could cause problems in the future as if each judge has a decision there will more than one ratio decidendi.
  • A big issue when looking at past judgments is separating the ratio decidendi and obiter dicta, older judgments tend to be written in continuous prose without any headings of what is meant to be obiter and ratio, meaning it is down to the judge reading the case will have to decide what the ratio is.
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Ratio Decidendi - Cont.

  • Sir Rupert Cross defined Ratio Decidendi as 'any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion'. Micheal Zander says that it is 'a proposition of law which decides the case, in the light or in the context of the material facts'.
  • It depends on the level of the court making the decision as to whether the ratio has to be followed by a later court (binding precedent) or whether it merely has to be considered by that court.
  • Examples of how Ratio Decidendi works: when considering whether there was a breach of duty of care in negligence cases come from Caparo v Dickman, the rule that children are judged in the way other children would have acted comes from the ratio in Mullin V Richards. The rule that if the claimant has a weakness or disability, the defendant should take extra precautions comes from the ratio in Paris V Stepney. In criminal cases, the idea that actual bodily harm includes psychiatric injury to the victim comes from R v Chan Fook, while the fact GBH means really serious harm comes from DPP V Smith.
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Obiter Dicta

  • Ratio Decidendi is what forms the future precedent of a case, the other things said in the case which has nothing to do with the ruling come from is known as Obiter Dicta and does not have to affect the judges ruling in any way.
  • Most of the time Obiter Dicta is where a judge will speculate how the case could be different given certain hypothetical situations, this may be considered in another case if that or a similar situation like that was to occur but importantly it has no binding authority on any other judge or court.
  • An example of this is R v Howe who speculated about the use of the defense of duress as a defense to attempted murder, in the ruling the Ratio established that it could not be used in murder cases and as an addition, they stated that it could also not be used in the case of attempted murder.
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Law Reporting

  • To properly follow past decisions correctly there must be an accurate record of what was decided.
  • Written reports have existed in both England and Wales since the 13th century but many of these were both brief and incorrect.
  • The earliest reports from 1275 to 1535 were called Year Books and contained short descriptions of the case usually written in french. From 1535 to 1865 cases were reported by individuals who made a business out of selling the reports to lawyers. The detail and accuracy of these differed massively and some are still used today.
  • In 1865 the Incorporated Council of Law Reporting was set up. this was controlled by the courts meaning the accuracy greatly improved in the reports with the judge noted down almost word for word. This accuracy of reports was the biggest factor in the formation of the strict doctrine of precedent, this still exists and are published in accordance with which court the case was held in, for example, cases abbreviated to Ch wer heard in Chancery Division QB refers to Queens Bench division.
  • There are also other well-established reports like the All England Reports (AllER) and the Weekly Law Reports (WLR).
  • Today there are also law reports where the citations show which court they were held in:
  • UKSC - Supreme Court
  • UKHL - House of Lords
  • EWCA Civ - Civil Division of the Court of Appeal
  • EWCA Crim - Criminal Division of the Court of Appeal
  • EWHC - High Court
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Internet Reports

  • All High Court, Court of Appeal, Supreme Court cases are now reported on the internet. Some websites give the full report free, others give summaries or an index of case. There are also subscription sites which contain virtually all the case. The main ones of these are LexisNexis and Westlaw.
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The Operation of Precedent

  • When precedent comes up there are several options, courts can pick Following, Overruling or Distinguishing.
  • Following - Where there is a previous precedent and the judge in the present case decides that it is prevalent then the judge will follow this decision and therefore they simply follow the same principle of law, this is usually the case when the court is either higher or on the same level as the present court.
  • Overruling - This is where a court in a later case states that the legal rule decided previously is wrong, this can only occur when a court is higher than the one the ruled in.
  • Distinguishing - is a method which can be used by a judge to avoid following past decisions which he would otherwise have to follow. It means that the judge finds that the material facts of the case he is deciding are sufficiently different for him to draw a distinction between the present case and the previous precedent. He is not then bound by the previous case.
  • Balfour v Balfour, Merritt v Merrit - both involve a wife claiming against her husband for breach of contract, in Balfour, it was agreed that there was no intention to create legal relations, there was simply a domestic relationship and no legally binding contract. The second case was successful because the facts were substantially different that although the parties were husband and wife, the agreement was made after they separated and was made in writing.
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Precedent and Acts of Parliament

When a new At of Parliament is passed that contains a provision which contradicts a previously decided case, that case decision will cease to have an effect and the new act of Parliament is now the law.

An example is when Parliament passed the Law Reform Act in 1996 until that point person could only be charged with murder or manslaughter if the victim died within a year and a day of receiving their injuries. The new act said that actually there should be no time limit what so ever.

However, where an act is unclear and needs to be interpreted by the courts then that decision on the interpretation of the words is a precedent for future cases.

A good example is in the Theft Act 1968, this act defined theft using the word dishonestly, which was not defined and needed to be in the case of Ghosh.

Another good example comes from s18 and s20 of the Offences against the Person Act 1861 which in s18 uses the phrase ' cause any grievous bodily harm' whereas s20 uses the wording 'inflict any grievous bodily harm'. This caused several issues around whether there was any difference between the words cause and inflict. In Burstow, it was ruled that although the words were not identical in their meanings it would be absurd to distinguish between the two.

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Advantages and Disadvantages of Precedent

  • Advantages: -
  • Certainty, as the courts follow past decisions people can know what the law is how it is likely to be applied to their particular case, it also allows legal aid to be accurate in how they advise their clients as well as acknowledging any financial and other arrangements created by businesses. The importance of certainty is stated in the Lord's practice statement.
  • Consistency and fairness, It is regarded as fair and just that similar cases should be decided in a similar way, just like in any kind of sport the rules apply to both sides.
  • Precision, as the law becomes laid out in certain cases it becomes more precise: it is well demonstrated and evolves through several variations of facts from cases that come in front of the court.
  • Flexibility, there is room for the law to change and move to be more fair and just and the practice statement allow the supreme court to overrule cases. The use of distinguishing also gives courts the freedom to avoid certain decisions and develop the law
  • Time-Saving, precedent is a useful time-saving measure were a principle ahs previously been established cases with similar facts are unlikely to go through the lengthy and potentially expensive process of litigation.
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Advantages and Disadvantages of Precedent

  • Disadvantages: -
  • Rigidity, the fact lower courts have to follow higher court decisions as well as the fact the Court of Appeal has to follow its previous decisions can b=ake the law to inflexible and can lead to bad decisions being perpetuated for a long time before being corrected, especially as very few cases go up to the Supreme Court meaning the law will only change if the parties involved have the courage and money to appeal their case.
  • Complexity, due to the sheer mass of recorded cases through reporting it can be very difficult to find all the relevant cases and even more difficult to find exactly what the judgment of many older cases was without any clear ratio or obiter marked out.
  • Illogical Distinctions, the use of distinguishing can lead to hair-splitting over facts leading to many differences between the cases seeming small and illogical as well as making it difficult to choose which one best represents the case the judge is presently considering.
  • Slowness of Growth, Judges are well aware that some areas of the law are unclear or are need of some reform, but they cannot make any changes unless a case is brought up, and in the case of appeal the wait is likely to be even longer as only around 50 cases reach the Supreme Court.
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