The Doctrine of Precedent

European Court of Justice

Supreme Court

Court of Appeal

Divisional Court of High Court

High Court - Crown Court

County Court - Magistrates Court

• Higher courts bind lower courts
• Appeal courts are normally self-binding. (some exeptions)

Can overrule themselves if per incuriam since London Street Tramways 1898.

Or since the Practise Statement 1996- 'can change if it appears right to do so'. But it is used sparingly because they want the public to have confidence in the law.

The first major use of the Practise Statement was in Herrington. The original precedent in the case of Addie was that an occupier of land owes a duty of care to a child trespasser if the injuries had been caused deilberately. The law changed due to social attitudes.

C of A self-binding. There are two divisions, decisions do not bind each other.

There are three exceptions in Young v Bristol Aeroplanes.

• If there are two contradictory decisions. 
• If a previous C of A decision has been overruled by the Supreme Court. 
• If the previous C of A decision was made per incuriam.

Another from Khadim which said there was an exeption if a proposition of law was assumed to exist by an earlier court and wasn't subject to argument or conclusion by that court, it doesn't have to be followed.

Lord Denning said that the C of A shouldn't be self-binding but rebelled in Davis v Johnson to protect a victim of domestic violence. It was ruled that the C of A had to follow its own decisions but they did eventully agree with his decision.

Self-binding court. Same exeptions as the Court of Appeal. Plus the exception of Tal 1984.

'Stand by the decision'

Judges have to look at law reports to what previous judges have done in cases with similar facts. 

In the case of Donoghue v Stevenson it was said that there should be a 'duty of care to the user of goods'.

his precedent was followed in Grant v Australian Knitting Mills.

If a judge gets a case and there are no previous cases before it with similar facts.

The judge will make an original precedent.

Other judges then have to follow that precedent if their case has similar facts.

If the facts in a case are different from the ones in a previous case then a judge does not have to follow it. He can distinguish it and follow a different precedent or make an original one. 

Merrit v Merrit was distinguished from Balfour v Balfour. Both had a wife making a claim against her husband for a breach of contract. Balfour didn't succeed because there was no intention to create legal restrictions and there was only a domestic agreement. But Merrit was succesful because they had made an agreement in writing when they were separated and the judge said the facts are sufficiantly different.

Re A (children) was distinguished from Dudley v Stephans. The cabin crew were not allowed defence of necessity for killing the cabin boy because they were stranded. But in Re A (children) they allowed duress to serparate the twins because the weaker twin was killing the stronger twin. 

Persuasive precedent is not binding and doesn't have to be followed by the judge. Other types of persuasive precedent are...

Privy Council decisions- the test for the defence of provucation- when someone provokes you. 'Would the adverage man with the defendants characteristcs act in the same way?'. i) Smith (Morgan James)- H of L said that the reasonable man had all of the D's characteristics. ii) AG for Jersey v Holley- PC said that only age, gender & characteristics related to the provocative conduct. iii) James v Karimi- C of A should have followed the H of L in Smith (Morgan James) but they ignored the H of L & followed Holley instead.

Lower courts- RvR- C of A felt that men shouldn't be immune to rap ing their wives. Followed by the H of L.

Dissenting judgements- Radmacher v Granatino.Court enforced a pre-nuptial agreement about the division of many. When the couple get diviorced. Lady Hale dissented- didn't like the idea of these agreements exploiting the weaker person in the marrige.

Judgements of Commonwealth and other Foreign courts- Hurley & Murray. Australian court. Allowed duress to be used as defence where D's common-law wife was threatened.

'Other things said'

The judge doesn't have to follow it.

Example- Howe. The defence of duress shouldn't be avaliable to anyone charged with atempted murder. This was followed in Gotts.

The judge has to follow this part of the precedent. Contains the summary of the facts and the reasons for the decision.

An example would be in Donoghue v Steveson. The verdict was that the manufacturer of goods has a duty of care to the user of those goods. So in Grant the judge would have to follow Donoghue v Stevenson because the facts are similar.

' reason for the decision'

This is the binding part of the precedent which means that the judge has to follow it. 

Example - Original precedent  Donoghue v Stevenson. Had to be followed by Grant.

• Treating people the same. This makes it fair and consistent. The evidence is that each case has to be followed by the original precedent. Each case with similar facts is treated exactly the same. However not all cases have perfectly similar facts that link the original precedent.
• It is quicker for the judges to reach a verdict. Instead of a judge making an original decision for every case he/she would only have to look at the law reports to find a similar case. This would also make it cheaper for the taxpayers.

• This sets out clear guidelines for the judges to follow. They only have to look at the law reports. But the law reports are long and they do not always have completely similar facts. 
• It also helps lawyers to advise their clients. This is because they can also look up past cases to see what verdicts have been passed. But there may be more than one case a judge can follow so there is only a small amount they can advise their clients on. 

• One disadvantage is that is may be difficult to work out whether a precedent is relevent. There may be some similar facts but the cases many not be comepletely simialr. However a judge can distinguish a precedent if he/she feels that it is irrelevant.
• Another disadvantage is that it makes the law seem rigidity and is difficult to evolve with social changes. An example is in RvR, for hundreds of years a man could **** his wife because the precedent was never abolished. Laws are slow to change because they do not want to bring an uncertainty to the law. 
• A lawyer may not be able to advise his/her client as they normally would if there is a case with similarities with more than one original precedent.