Judicial Precedent

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The process by which judges follow the decisions of previous judges when the facts of the two cases are sufficiently similar.

Important to allow for consistent, fair, just and rational decisions. Allows society to understand the consequences of potential actions and allows lawyers to predict the outcome of a case.

Operates on a system of case reporting meaning the decisions made in each case must be accurately recorded so that future judges can refer back to them.

A clear hierarchy of courts ensures each court or judge knows who they must follow. 

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Mechanics of Precedent

Precedent operates through the doctrine of stare decisis.

Relies on law reporting, so in 1865 the Incorporated Council of Law Reporting was set up, ensuring all law reporting was accurate and reliable. This remains one of the principal sources of decisions of the superior and appellate courts. Other report systems include the "All England series" which reports major cases from 1936 onwards.

The parts of a judgement include obiter dicta and ratio decidendi. Ratio decidendi is the legal principle of the case and reasoning for the decision that was made. Obiter dicta is the rest of the judgement which is effectively the other things said in the judgement. 

Cases to note: R v Bentham (2005); Central London Property Trust Ltd v High Trees House Ltd (1947)

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The Hierarchy of the Courts

All lower courts are bound by the precedent set in the courts above them, however civil and criminal cases do not bind eachother but can be used as persuasive precedent.

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Types of Precedent

Original Precedent - Occurs when the principle of law has not been decided before. Forms a new piece of common law and a new precedent is set. See Re S (adult: refusal of medical treatment) (1992).

Binding Precedent - A precedent that has already been made. All lower courts are bound to follow the ratio decidendi of the precedent; this being the reason for the earlier decision. The decision will be the same in cases that are sufficiently similar to one another. See Donoghue v Stevenson (1932).

Persuasive Precedent - A precedent that is not binding and therefore does not have to be followed. Can, however, be followed if there is no binding precedent applicable to the case. Could be found in judgements from other countries, Privy Council decisions, obiter dicta statements and lower court decisions. See R v Bentham (2005), R v R (1991).

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What can be done with a precedent?

Following - to apply the same legal principle from an earlier case to a current case due to the fact that the material facts are the same and the earlier decision was made in a court higher in the hierarchy or the same court.

Reversing - a court higher in the hiearchy can overturn the decision of a lower court in the same case. See Sweet v Parsley (1969).

Overruling - occurs when an earlier decision in a different case is considered to to be wrongly decided upon. See R v R (1991). Can also occur when a court decides its own earlier decision was wrong and overrules it. See Murphy v Brentwood District Council (1991). 

Distingusihing - allows a judge to avoid an otherwise binding precedent. The material facts of the case must be sufficiently different for the judge to be able to distinguish on the facts. The judge will no longer have to follow the decision from the earlier case and they can set an original precedent.

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London Street Tramways Case

In 1898 - London Tramways Co vs London County Council, concerning the price the LCC should pay for parts of the tramways.

House of Lords decided that certainty was more important than the possibility of individual hardship and that all future cases decided by the HOL would not only bind lower courts, but would also bind themselves. Before this, the HOL was free to overrule its own previous decisions where it saw fit to do so in the interests of flexibility.

1898 changes led to certainty and consistency in the law, but led to a lack of flexibility or development in the law. 

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Practice Statement

As society is continuosly changing, the House of Lords recognised a need for flexibility (see DPP v Smith 1961) so in 1966 issued the Practice Statement. 

It allows the House of Lord to overrule its own previous decisions "where it appears right to do so" but also states that it must be used sparingly. 

HOL were reluctant to use the PS at first, but was first used in Conway v Rimmer (1968).

Other cases to note:

  • R v Shivpuri (1986) overruling Anderton v Ryan (1985)
  • R v Howe (1987) overulling DPP v Lynch (1975)
  • Knuller v DPP (1973) refusing to overrule Shaw v DPP (1962)

EXTRACT - "Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while treating former decisions of this house as normally binding, to depart from a previous decision when it appears right to do so."

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Court of Appeal - Young v Bristol Aeroplane

Practice Statement only applies to the Supreme Court / HOL., so:

In the important case of Young v Bristol Aeroplane (1944), the Court of Appeal set out three circumstances where the court is not bound by its own previous decision:

  • When the previous decision has been overruled by a decision in the Supreme Court, they must follow the decision made in the Supreme Court. See Family Housing Association v Jones (1990) and Iqbal v Whipps Cross University Hospital NHS Trust (2007).
  • When there are two conflicting decisions made in the Court of Appeal they will have the freedom to choose between them. See Tiverton Estates Ltd v Wearwell Ltd (1974) and Law v Jones (1974).
  • If the decision was made per incuriam (in error), the Court of Appeal is not bound to follow it. See Williams v Fawcett (1985) and Morelle v Wakeling (1955).


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Court of Appeal - Other ways of avoiding precedent

Criminal division (as a person's liberty is at stake) can avoid precedent if it appears the law has been misapplied or misunderstood. See R v Taylor (1950), R v Gould (1969)

Can overrule its own decisions if they conflict with ECHR decisions. See R v Secretary of State for Work and Pensions (2009).

Can overrule a HOL decision that was decided before hte Human Rights Act came into force, but only if it conflicts with a ECHR decision.

Can refuse to follow a decision made by the HOL that has been overruled by the ECJ.

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