Most cases which come before the court are similar to the ones heard before. The doctrine of Judicial Precedent is based on the principle that legal decisions made by a judge in a case (common law, judge made law, case law) set out precedents which must be followed by that court and all courts below it in cases of similar fact.
‘Stare decisis’ means ‘let the previous decision stand’ and refers to when a judge makes a point of law in a case, this must be followed by a judge in similar cases. The general rule is that all courts are bound to follow decisions made by courts higher than themselves in the court hierarchy and appellate courts are usually (although not always) bound by their own previous decisions.
In Donoghue v Stevenson (1932) a woman visited a cafe with her friend and she bought some ginger beer. She fell ill as the beer contained a decomposed snail, so she sued the manufacturer for negligence.
In Daniels v White (1938) a man bought some lemonade but whilst drinking it felt a burning sensation in his mouth as it contained a corrosive metal. The previous case was referred to when Mr Daniels sued the manufacturer as the cases were similar in fact for the purpose of precedent.
Ratio decidendi is the first element needed for precedent and it means ‘the reasons for deciding’. It is the judges written judgement setting out the reasons and legal principles used to reach a decision. The ratio decidendi forms a binding precedent which is what must be followed if the cases are similar in fact.
In R v Brown (1993) the defendants were found guilty of s.20 and s.47 of the Offences Against a Person Act 1861. The court said that defence of consent is not available to defendants charged with such offences under the circumstances - this was the ratio decidendi that formed the binding precedent.
Judges however can make it unclear what the ratio decidendi of their decision is. Appeal court decisions are made by more than one judge who may all give different reasons and legal principles for their decisions. This makes it hard to determine which reason would form the ratio decidendi and in turn create the binding precedent.
The judge could also speculate what the outcome of a case would have been if the facts had been slightly different. Obiter dicta means ‘things said by the way’. Sometimes the court will state what he or she thinks the law/outcome would have been if the facts of a case were different. Any statements that are not relevant to the outcome of the case form the obiter dicta and they can form persuasive precedents. Should a judge follow the obiter dicta from a previous case, that then becomes the ratio decidendi of the current case.
In R v Howe (1987) the ratio decidendi was that duress is…