Judicial Precedent

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  • Created on: 10-04-16 16:15

Judicial Precedent

When facts are sufficiently similar to a previous case and the previous case was decided in a higher court.

Stare decisis - "let the previous decision stand"

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Ratio Decidendi

Judge's written judgement = case law. Sets out facts of case and legal principles used to reach a decision.

Legal principles = ratio decidendi (the reason for deciding). Is the binding precedent for future cases where facts are sufficiently similar and original case was decided in a more senior court. 


R v Cunningham - to be reckless, you must know of the risk and take it regardless.

Donoghue v Stevenson - a person owes a duty of care to those he can reasonably foresee will be affected by his actions.

Can be difficult to find the ratio.

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Obiter Dicta

Things said "by the way" - where a judge speculates on what the decision may have been if the facts were slightly different.

Can form persuasive precedent - does not have to be followed but may influence judges in later cases.

In R v Brown it was said consent could form a defence to tattoos or piercings (where there's a point to the pain). This was followed in R v Wilson where it was decided branding a woman's bottom with a knife was similar enough to tattooing so consent could form a defence.

In Hall v Simons it was said the rule giving immunity to advocates should no longer be maintained - this was not binding but many follow what was said.

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Court Hierarchy

Decisions from higher courts bind lower courts - needed for judicial precedent to work.

CJEU - binds all courts on matters of EU law. Not bound by previous decisions.

Supreme Court - highest in England and Wales, binds all below it. Usually bound by previous decisions unless made per incuriam or Practice Rules are used.

Court of Appeal - bound by CJEU and Supreme Court. Two divisions (civil - bound by previous decisions. criminal - usually bound but more flexibility given if liberty is at stake). 5 exceptions - 3 from Young v Bristol Aeroplane Co or if previous decision goes against EU law, a CJEU decision or the Human Rights Act 1998.

High Court and divisions - bound by those above. Family Division and Chancery Division are bound by own decisions. More flexibility in Queen's Bench Division when hearing criminal appeals. 

Crown Court, County Court, Magistrates' Court - bound by courts above the, not bound by own previous decisions.

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Law Reports

Used to find out if there's already binding precedents in existence. Achieved by an accurate set of law reports.

No 'official set'.

ICLR produces law reports known as "The Law Reports".

All England Law Reports - published weekly by Butterworths.

Specialised law reports - Family Law Reports, Criminals Appeal Reports.

Many now posted on the internet.

Subscription services like Justis.

Reporter must be a qualified lawyer.

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Where the judge finds the facts of a case sufficiently different to a case where a binding precedent was originally set - must stress the importance of said differences.

Judge in Wilson distinguished from Brown. In Wilson it was held the injury was more of a tattoo so the pain had a purpose - in Brown this was not the case (it was for sexual satisfaction).

Also shown in Cundy v Lindsay and Phillips v Brooks. In Cundy, a letter was sent when buying the goods whereas in Phillips, it was face to face. Sufficiently different so the verdict in the first was different to that in the second (second he was knowingly misrepresenting himself).

In Balfour v Balfour, it was held there was no intention to create legal relations whilst in a marriage. In Merritt v Merritt, the agreement was made after they were separated (still married) so the judge distinguished.

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Where judges in higher courts overrule decisions in lower courts.

In the High Court civil division they cannot overrule themselves (bound by previous decisions) but more flexibility is given to the Queen's Bench Division when herng criminal cases (may overrule). High Court is bound by divisional court decisions, but not by own previous decisions.

Supreme Court - could only overrule if decision was made per incuriam to ensure certainty in the law (established in Londong Street Tramways v London CC). 1966 Practice Statement said the House of Lords could depart from previous decision where "it appears right to do so". Practice Statement is used sparingly to ensure consisitency in the law. British Railways Board v Herrington overruled Addie v Dumbreck on the duty of care owed to child trespassers. Pepper v Hart overruled David v Johnston on the use of Hansard in statutory interpretation.

Court of Appeal - Civil division is usually bound by previous decisions so cannot overrule itself. Young v Bristol Aeroplane Co (1944) confirmed this but set out 3 exceptions where the civil division can depart from previous decision. Are now two more exceptions since joining the EU in 1973 and signing up to the Human Rights Act 1998. Criminal division is usually bound by previous decisions but flexibility is given if an individual's liberty is at stake (Young exceptions also apply).

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Where a lower court follows a binding precedent but it does not like this (the judge makes this clear). 

Is a strong sign that the law/precedent is now outdated.

Precedent will continue to operate until a high court changes/clarifies the decision.

Purpose of disapproving is the hope that the losing party will appeal and a higher court may overrule the precedent, or Parliament may pass corrective legislation.

In Anns v Merton LBC 1978, the House of Lords set out a two part test for duty of care in negligence. This was disapproved by the lower courts and the House of Lords finally got rid of this in favour of the 3 part test from Caparo v Dickman.

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Judicial Precedent Advantages

Flexibility - Arises through overruling, distinguishing and reversing, allowing the law to evolve. Law is able to be developed in ways that reflect societal and technological changes. In R v R, the House of Lords accepted a man could be found guilty of ****** his wife. It could take months for an Act of Parliament to be passed, whereas courts can respond immediately.

Certainty - Allows people to know what the law is as lawyers can predict the likely outcome of cases. Without binding precedent, people couldn't be sure that the law would stay the same - planning for the future would be more difficult. Sir Rupert Cross described precedent as a "strong cement". Lord Reid said "in the interests of certainty" there had to be a good reason for changing precedent. Consistency is important as it means people can be sure similar cases will be dealt with in a similar way.

Real life situations - case law deals with real life. If an unforeseen situation arises, judges can adapt existing precedents. Thorough and detailed rules will be built up. Law becomes precise and covers almost every situation. Better than Parliament legislating in a theoretical way.

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Judicial Precedent Advantages

Prevents Parliament having to legislate - May not be able to do so quickly. Government is often intent on pushing through legislation that fulfills its political goals. MP's have a busy programme with many tasks whilst judges only deal with one case at a time. Law on non-fatal offences has remained unchanaged since 1861 and Parliament has not changed the law on husband **** - the courts did in 1991.

Law made by experts - Judges are legal experts and so are better equipped to deal with the law. Are trained to apply existing principles and relate developments to the existing law, so the law is more likely to remain consistent and coherent.

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Judicial Precedent Disadvantages

Complexity and volume - Nearly half a million reported cases with the number growing. Difficult to know all relevant cases. Judge may only be aware of cases mentioned by parties. May be difficult to determine ratio decidendi of cases due to complexity of the judgement.

Rigidity and slowness of growth - Judges have to wait for cases to be brought before them - reform can be delayed for many years. Strict hierarchy means judges must follow binding precedent. Bad/inappropriate decisions cannotbe changed until they're heard in a court high enough to overrule them. Lord Denning's argument for the Court of Appeal being able to overrule its own decision was that few have the financial resources to go to the Supreme Court.

Retrospective effect of decisions - Unlike legislation, case law applies retrospectively to events that occurred before the case was brought. Effect of overruling an earlier precedent is people can't rely on the law. Act on the knowledge of what the law is at the time, only to have it changed when the case is appealed to a court that can change the precedent. Can lead to unfairness.

Constitutional position - Parliament should make the law and judges should apply it. It's the role of a democratically elected Parliament to form policy - judges are not elected. Judges may not be representative of the population (drawn from a narrow social class). May have views reflecting this narrow social background (Professor Griffiths).

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Judicial Precedent Disadvantages

Personal views of judges - Lord Denning made no secret of his approach. Wanted to achieve what he believed was justice abd was prepared to challenge precedent's rules to do so. Outcome of a case may hinge on the judge hearing it.

Lack of research - When Parliament wants to introduce a new law, there's considerable research (law reform bodies, lengthy Parliament procedure). Judge's decision is based on the evidence presented to them by the parties involved. Cannnot consider arguments about general social, economic or moral aspects even though their decisions can have implications on society generally.

Illogical and technical distinctions - Distinguishing to avoid precedent has led to complexity in some areas of the law. May be minute and illogical differences in some cases. Can lead to unpredictability so the law becomes complex and confusing.

Problems with law reports - Few cases are reported. According to Michael Zander, only a quarter of Court of Appeal Civil Divison decisions appear in the Weekly Law Reports, and only about 70% of Supreme Court cases and 10% of Court of Appeal Criminal Division cases are reported.

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