Judicial Precedent- Decision made by higher courts that has to be followed by the lower courts in later similar cases. Follows the principle of stare decisis.
Stare Decisis- To stand by the decision that has already been made and not unsettle the established.
The input of stare decisis and judicial precedent should lead to fairness as it shows common law in all courts being the same. The majority of decisions we follow come from the Supreme court (or house of lords) and the court of appeal.
Judicial precedent is set in the highest courts and binds all courts lower than it e.g the Supreme Court binds itself and all lower courts.
The Supreme Court binds all lower courts and itself. However, the Supreme court can depart from its own decisions when it feels it is right to do so. Therefore if there is an issue with the law then the Supreme court can rectify it and set new precedent for lower courts to follow.
Court of Appeal
Both divisions of the Court of Appeal bind all lower courts and themselves but do not bind each other as they set different law.
High Court (Civil)
The High Court is bound by all courts above it (House of Lords/Supreme Court and the Court of Appeal). The High Court can bind those below however if a case comes along where a new precedent is to be set it is often sent to Supreme Court.
Parts of Judicial Precedent
Ratio Decidendi- The reason for the decision, binding.
Obiter dicta- Any other things said on the matter
An example of obiter dicta in use is Lord Denning in the High Trees house case when he stated obiter that ‘had the claimant tried to reclaim the half rent for during the war he would have been estopped from doing so’.
Per in curium- In error. E.g if a precedent was made per in curium it wouldn’t have to be followed.
Practice statement- The practice statement is exclusive to the Supreme Court. If the Supreme court find that their previous precedent is wrong then they can go back on it by using the practice statement.
Types of Precedent
Original Precedent- This precedent occurs when the principle of law has not been previously decided. For example, the Donoghue and Stevenson case created the precedent on negligence. Therefore by setting this new ‘original precedent’ a new piece of common law has been made for all lower courts to follow
Binding Precedent- A precedent that is already made and must be followed by all lower courts. Those courts are bound to follow the binding precedent. The deciding factor as to…