Doctrine of Judicial Precedent

This doctrine is based on stare decisis i.e. ‘stand by what has been decided’. This doctrine therefore means that a judge is bound to apply a decision from an earlier case to the facts of the case before him, provided, among other conditions, that there is no material difference between the cases and the previous case that created a binding precedent. For example, in the case of Donoghue v Stevenson (1932) the House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product. This set a binding precedent which was followed in Grant v Australia Knitting Mill (1932).

Judicial precedent is based on three elements;

-          Reports – there must be adequate and reliable reports of earlier decisions.

-       Rules – there must be rules for extracting a legal principle from a previous set of facts and applying it to current facts.

-         Classification – precedents must be classified into those that are binding and those which are merely persuasive.

  Law Reports

A law report ;

-          Reprints full text of a judgment including statements of facts and judicial reasoning mad by the Judge.

-          Carries additional material such as a summary of legal issues, lists of cases cited, legislation referred among others.

Every civil case has a title which denotes the claimant and the defendant. For instance in Carlill v Carbolic Smoke Ball Co. Carlil is the claimant/Plaintiff while Carbolic Smoke Co. is the defendant.

Some cases are cited with reference to the subject matter e.g. Re Barrow Haematite Steel Co. denotes a company name, and The Wagon Mound refers to a ship.

Some older case may be referred to by single names e.g Pinnel’s case. In a full citation the title of the case is followed by abbreviated particulars of the volume of the law reports in which the case is reported, for example, Best v Samuel Fox & Co Ltd 1952 2 All ER 394 (the report is at p 394 of Vol. 2 of the All England Reports for 1952).

  Rules

The doctrine of judicial precedent is designed to provide consistency in the law. Four things must be considered when examining a precedent before it can be applied to a case.

       a)      a decision must be based on a proposition of law before it can be considered a precedent.

       b)     It must form part of the ratio decidendi of a case

       c)      The material facts of each case must be same or comparable

      d)     The preceding court must have had a superior (or in some instance, equal) status to the latter court, such that its decisions are binding on the later court.

Ratio decidendi is a Latin phrase meaning ‘the reason’ or ‘the rationale for the decision’. It refers to the legal principle upon which the decision in a specific case is founded. Therefore, the ratio decidendi of a case is any rule of law expressly or impliedly treated by a judge as a necessary step in reaching his conclusion.

 Obiter dicta – These are remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts. For example in R v Howe & Bannister [1987] 2 WLR 568, the House of Lords held that the defence of duress was not available to murder. This was the ratio decidendi of the case. The House of Lords went on to consider whether the defence should be available to those who attempt murder and stated obiter dicta that the defence of duress should not be available to attempted murder.

Therefore, a Judge’s statement can either be obiter dicta or form part of the ratio decidendi.

The Court Hierarchy

The European Court of Justice

Under s3(1) of the European Communities Act 1972, decisions of the ECJ are binding, in matters of Community law, on all courts up to and including the Supreme Court.

The Supreme Court

This is the highest court in the land unless a matter of European Community law is involved. Its decisions are binding on all English courts and itself except on exceptional cases. It is bound by the decisions of the European Court of Justice.

Court of Appeal (civil division)

The Court of Appeal is bound by its own decisions and decisions of the Supreme Court subject to certain exceptions. In Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court of Appeal held that it was bound by its own previous decisions and the decisions of what was the House of Lords, and which is now the Supreme Court subject to the following three exceptions:

-          Where two of its own previous decisions conflict, the Court of Appeal must decide which to follow and which to reject.

-          The Court of Appeal must refuse to follow its previous decision which is in conflict with a subsequent decision of the Supreme Court.

-          The Court of Appeal need not follow a decision of its own if satisfied that it was given per incuriam (literally, by carelessness or mistake).

Decisions of the Court of Appeal itself are binding on the High Court and the county courts.

Court of Appeal (Criminal Division)

In principle there is no difference in the application of stare decisis (doctrine of Judicial precedent) in the civil and criminal divisions of the Court of Appeal. In practice, however, in addition to the Young exceptions, because a person's liberty may be at stake, precedent is not followed as rigidly in the criminal division.

In R v Taylor [1950] 2 KB 368 the Court of Appeal held that in 'questions involving the liberty of the subject' if a full court considered that 'the law has either been misapplied or misunderstood' then it must reconsider the earlier decision.

The High Court

The High Court is bound by the Court of Appeal and the House of Lords but is not bound by other High Court decisions. However, they are of strong persuasive authority in the High Court and are usually followed.

Decisions of individual High Court judges are binding on the county courts.

A Divisional Court is bound by the House of Lords and the Court of Appeal and normally follows a previous decision of another Divisional Court but may depart from it if it believes that the previous decision was wrong: R v Greater Manchester Coroner, ex parte Tal [1985] QB 67.

Crown Courts

Decisions made on points of law by judges sitting at the Crown Court are not binding, though they are of persuasive authority. Therefore, there is no obligation on other Crown Court judges to follow them.

County Courts and Magistrates' Courts

The decisions of these courts are not binding. They are rarely important in law and are not usually reported in the law reports.

  Classification of precedent

Precedents can either be binding or persuasive. A persuasive precedent is one which is not absolutely binding on a court but which may be applied. The following are some examples:

-          Decisions of English courts lower in the hierarchy. For example, the House of Lords may follow a Court of Appeal decision, and the Court of appeal may follow a High Court decision, although not strictly bound to do so.

-          Decisions of the Judicial Committee of the Privy Council.

-           Decisions of the courts in Scotland, Ireland, the Commonwealth (especially Australia, Canada and New Zealand), and the USA. These are usually cited where there is a shortage or total lack of English authority on a point.

-           Obiter dicta of English judges.

Avoidance of a binding precedent

A court may decline to follow a binding precedent of the following grounds;

-          It may be able to distinguish the facts.

-          It may declare the ratio decidendi obscure.

-          It may declare the previous decision made per incurium i.e. a decision given in ignorance of a statutory provision or of some authority binding on the court concerned. A decision reached per incurium is one reached by carelessness or mistake .i.e. without taking into account some essential points of law

-          It may declare it to in conflict with a fundamental principle of the law.

-          It may declare an earlier precedent to be too wide e.g. the duty of care to third parties created in Donoghue v Stevenson has since been considerably refined.

Advantages and disadvantages of precedent

Advantages

-         - There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision will be and plan accordingly.

-         - There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public.

-      - Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations.

-          - Judicial precedent is practical in nature. It is based on real facts, unlike legislation.

-          - Judicial precedent is detailed. There is a wealth of cases to which to refer.

Disadvantages

-      - Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.

-          - There may be a considerable wait for a case to come to court for a point to be decided.

-          - Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.

-         -  There is far too much case law and it is too complex.

Sources of English Law

There are three major sources of English law namely;

-          Case law

-          Legislation

-          European Union Law

1.  Case law

Case law or Judge made law refers to the decisions and interpretations made by judges while deciding legal matters/issues brought before them. These decisions/cases become precedents. A precedent is a previous court decision which another court is bound to follow by deciding a subsequent case in the same way. See notes on the Doctrine of Judicial Precedent.

2. Legislation

Legislation may take the form of primary or delegated legislation under an Act of parliament.

Primary legislation includes Acts of Parliament or statutes. They are enacted by parliament. Statutes lay out Parliament’s general intention in a particular field.

Delegated legislation refers to rules of law and regulations made by people acting under the authority of parliament under powers conferred by statutes.

2.1.                     Parliamentary sovereignty

This is a principle of the UK constitution. It makes parliament the supreme legal authority in the UK which can;

-          Repeal earlier statute

-          Amend an existing statute

-          Overrule or modify case law developed in courts

-          Make new law

Parliament usually follows certain conventions which limits its freedom:

-          No parliament can legislate so as to prevent a future parliament from changing the law.

-          Judges have to interpret statute and they may find a meaning in it which those who promoted the statute did not intend.

The validity of act of parliament cannot be questioned. However, judges may declare an Act to incompatible with the European Convention on Human Rights.

In Cheney v Conn, the claimant objected to his tax assessment under the Finance Act 1964 because some of the tax collected was used to fund the manufacture of nuclear weapons. He alleged that it was contrary to the Geneva Conventions Act 1957 and in conflict with international law. It was held that the act gave clear authority to collect the taxes.

Additionally, parliament may make the law clearer by passing a codifying statute putting case law on a statutory basis e. Sale of Goods Act 1979.

It may also pass consolidating statutes that incorporate an original statute and its successive amendments into a single piece of legislation e.g. Companies Act 2006.

2.2.                     Parliamentary procedure

A proposal for legislation can be presented to the parliament by government, a back bench M.P or a peer. A government bill may be aired in public in a Government Green or White Paper. A bill may be introduced into either the House of Commons or the House of Lords. A bill is a proposal for new legislation, or a proposal to change an existing law presented for debate before parliament.

A Bill may be introduced into either the House of Commons or the House of Lords. When it has passed through one House it must then go through the same stages in the other house.

Before becoming an Act of Parliament, a Bill must go through the following stages in both houses.

-          Stage 1:  1^st reading – publication and introduction of the Bill in the house. No debate.

-          Stage 2:   2^nd reading- debates on the general merits of the Bill. No amendments are made to the Bill.

-          Stage 3:   Committee stage – the bill is examined by a standing committee of about 20 members representing the main parties and including some members at least two who specialize in the relevant subject.

-          Stage 4:     Report stage – the Bill as amended by the committee is reported back to the full house.

-          Stage 5:    Third reading – the bill is read for the final time and approved or rejected by the members.

When it has passed through both houses it is submitted for Royal assent which is given on the Queen’s behalf by a committee of the Lord Chancellor and two other peers. It then becomes an Act of Parliament but does not come into operation until a commencement date is notified by statutory instrument.

Advantages of primary legislation

-          Statute law can in theory deal with any problem

-          Statutes are carefully constructed codes of law

-          A new problem in the society can be dealt with by passing an act of parliament

-          The House of Commons is elected at intervals of not more that five years. Hence the law making process is theoretically responsive to public opinion.

Disadvantages

-          Statutes are bulky

-          Parliament often lacks time to consider draft legislation in sufficient detail.

-          A substantial statute can take up a lot of parliamentary time.

-          Statutes law is a statement of general rules. Those who draft it cannot anticipate every individual case which may arise.

2.3.                     Delegated legislation

These are rules of law, often of a delegated nature made by subordinate bodies to whom the power to do so has been given by statute.

The following are some forms of delegated legislation:

              a)      Statutory instruments – detailed orders, rules or regulations mad by the minister

              b)     By-laws made by local authorities

              c)      Rules of court made by the judiciary to control court procedure 

              d)     Professional regulations concerning certain occupations

              e)      Orders in council issued by the government through the privy council.

2.3.1.      Control over delegated legislation

Parliament exercises some control over delegated legislation by keeping the production of new legislation under review.

For instance,

-           - Some statutory instruments must be laid before parliament before they take effect.

-           - Some statutory instruments do not take effect until approved by affirmative resolution of parliament.

Additionally, there are standing Scrutiny Committees of both houses whose duty is to examine statutory instruments from a technical point of view and may raise objections if necessary.

Further, courts are permitted to strike out delegated legislation which is contrary to the Human Rights Act.

Advantages of delegated legislation

Legislation can be passed quickly in an emergency

Laws can be passed with input from those who have technical expertise, which MPs may not have

Responds to local knowledge of specific problem

It is easier t amend or revoke than acts of Parliament.

Disadvantages  

Takes power from democratically elected MPs

Its volume and lack of publicity means that it can be difficult to keep up with the changes introduced.

Structure and Operation of the Courts in the UK

Courts have to be organized to facilitate the working of the legal system.

Courts in the United Kingdom serve two main functions:

-          They are a mechanism that people can use to resolve disputes.

-          They interpret the law

There are four main functional aspects of the court system which underlie its structure. These functional aspects are as follows;

-          Civil and criminal law differ so much in substance and procedure that they are best administered in separate courts.

-          Local courts allow the vast bulk of small legal proceedings to be decentralized.

-          There is some specialization both within the High Court and in other courts with separate functions.

-          There is a system of review by appeals to higher courts.

        Summary of the Civil Court Structure

The civil court structure comprises the following;

Magistrates’ Court – mostly deal with small domestic matters.

County courts – hear claims in contract and tort, equitable matters and land and probate disputes among others.

The Crown Court – hear appeals from magistrate courts

The High Court – It is divided into three specialist divisions; Queen’s Bench, Family Division and Chancery.

The Court of Appeal – hears appeals from the County Court, the High Court, the restrictive Practices Court, and the Employment Appeal Tribunal.

The Supreme Court of the United Kingdom – hears appeals from the Court of Appeal and the Supreme Court.

     Summary of the Criminal Court Structure

 The criminal court structure comprises the following;

 Magistrates’ Court - hear summary offences and committal proceedings for indictable offences.

The Crown Court- tries serious criminal offences and hears appeals from Magistrate Courts.

Divisional Court of QBD – Hears appeals by way of case stated from Magistrates’ Courts and Crown Court.

The Court of Appeal –hears appeals from the Crown Court.

The Supreme Court for the United Kingdom - hears appeals from the Court of Appeal or a Divisional Court of QBD.

i)                  Magistrates’ Court

Criminal jurisdiction

-          The lowest ranked criminal court

-          The court tries all summary offences. These are minor offences triable summarily i.e. without a jury

-          They conduct preliminary investigation of the prosecution case (committal proceedings) when the offence is triable only by indictment (by Crown Court)

Civil jurisdiction

Magistrates’ courts have civil jurisdiction which include the following:

-          Family proceeding – Financial provision for parties to a marriage and children, the custody and supervision of children and guardianship and adoption orders

-          Enforcement of local authority charges and rates.

Appeals

-          With regard to criminal matters, appeals from the Magistrates’ Court are made to the crown court. The appeal should be based on the ground that the Magistrate has wrongly interpreted the law.

-           Appeals on family matters are made to the Crown Court with a further appeal on a point of law to Family division of the High Court.

Personnel

Magistrates hear cases in the Magistrates’ Courts. The Magistrates fall into the following two categories;

-          Magistrates – Lay persons selected by the Lord Chancellor.

-          District Judges – professional paid magistrates.

ii)               The County Court

They have civil jurisdiction only and this jurisdiction extends to the following matters;

-          Claims in contract and tort (except defamation)

-          Equitable matters concerning trust, mortgages and partnership dissolution.

-          Disputes concerning land.

-          Undefended matrimonial cases.

-          Probate matters

-          Bankruptcy.

Appeals from the County Courts go to the civil division of the Court of Appeal in some cases. In most other cases, an appeal goes to the relevant division of the high court.

County Courts are presided over by Circuit Judges assisted by District Judges.

Civil Procedure Rules

The Civil Procedure Rules (CPR) were introduced in 1998 to govern the procedure followed within the English civil court system. The aim of these rules is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. Therefore, the rules require courts to;

-          Ensure that party are on an equal footing

-          Ensure that a case is dealt with expeditiously and fairly

-          Deal with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.

The rules also encourage parties to consider alternative methods of dispute resolution.

There are two principal areas which are relevant:

a)      Tracking

b)     Case management

       I.            Tracking

A case can be allocated any one of the following three tracks;

i)                   Small claims track – for claims of no more than £ 5,000. These are cases that that are to be dealt with quickly and informally, often without the need for legal representation or for a full hearing.

ii)                 Fast track– for claims of between £ 5,000 and £ 25,000 where the trial is to last no longer than one day. These are subject to simplified court procedure and a fixed timetable designed to enable the clam to be determined within 30 weeks.

iii)              Mult-track – claims of over £ 25,000.

Generally, small claims and fast track claims are heard by the County Court, the more complex Multi-track cases are heard the High Court.

    II.            Case management

All case are actively managed by the court to ensure that they proceed properly. The courts will consider whether the likely benefits of taking a particular step will justify the cost.

Case management also allows the court to try to encourage the parties to settle their disputes without the need for trial, through alternative dispute resolution procedures (ADR) such as mediation.

iii)            The Crown Court

It deals with indictable offences (serious criminal cases) e.g. murder, rape, robbery.

It also deals with;

-          Appeals against decisions of Magistrates’ Courts.

-          Cases sent for trial by Magistrates’ Courts because the offences are ‘indictable only’ e.g. very serious offences.

-          Cases of defendants convicted in magistrates’ courts, but sent to the Crown Court for sentencing due to the seriousness of the offence

NB; All cases start in the Magistrates’ Court. With regard to ‘indictable only’ offences, defendants are sent to the Crown Court for trial.

This court also deals with a few types of civil cases, for example appeals from the Magistrates’ Court on matters of affiliation, betting, gaming and licensing.

From the Crown Court, there is a right of appeal on criminal matters to the Criminal Division of the Court of Appeal. An appeal on a point of law may also be made to a Divisional Court of the Queen’s Bench Division of the High Court.

Cases in the Crown Court are heard by;

-          High Court Judges (for serious offences)

-          Circuit judges.

iv)              The High Court

It is organized into three divisions which hear different types of cases:

-          Queen’s Bench Division

-          Chancery Division

-          Family Division

All the three divisions hear cases in the first instance. They also have an appellate jurisdiction i.e. they hear appeals from other court.

a)      Queen’s Bench Division

This Division has both criminal and civil jurisdiction and it is headed by the President of the Queen’s Bench Division. Cases are heard by the President, and 73 High Court Judges. Judges who hear civil case in QBD deal with common law business e.g. actions relating to contract, except those specifically allocated to the Chancery Division. They also hear civil wrongs, known as tort.

 The division also has appellate jurisdiction in respect of;

-          Some appeal from County Courts

-          Appeals on a point of law from Magistrates’ Courts.

-          Some appeals from the Crown Court.

The QBD includes a separate admiralty court to deal with matters arising from the high seas and the UK territorial waters, and a commercial court which specializes in commercial cases.

QBD judges also preside over specialist matters, such as applications for judicial review. Such applications seek to establish if a decision of the government or a public body has been made in the right way. Accordingly, it may issue a mandatory order (mandamus), prohibitory order (prohibition) or a quashing order (certiorari). It may also issue a writ of habeas corpus, which is an order for the release of a person wrongfully detained.

Furthermore, it has as supervisory role over inferior courts.

b)     Chancery Division

This division is headed by the Lord Chancellor. Cases are heard by 18 High Court Judges. The principle business of the chancery Division is;

-          Business, trade  and industry disputes

-          Intellectual property matters, copyright and patent

-          Corporate and personal insolvency disputes

-          Contentious probate actions

-          Disputes relating to trust property

The Chancery Division also has the Patents Court (which deals with Patents and registered designs) and the Companies Court (which deals mainly with compulsory liquidation of companies)

c)      Family Division

This division deals with;

-           Matrimonial cases.

-          Family property cases.

-           Proceedings relating to children.

-          Appeals from Magistrates’ Courts on family matters.

-          Appeals from County Court on family matters.

Civil appeals from the High court may be made to the Civil Division of the Court of Appeal or to the Supreme Court under the Leap frog procedure.

Criminal appeals are made directly to the Supreme Court where the case has reached the High Court on appeal from Magistrates’ Court or from the Crown Court.

v)                 The Court of Appeal

An appeal court is a court to which an appeal is made against a judgment, ruling or sentence. In the UK, the Court of Appeal is organized into a civil division and criminal division.

The Civil Division hears appeals concerning civil law from the High Court, County Courts and Tribunals such as; Employment Appeal Tribunal, the Immigration Appeal Tribunal, and the Land Tribunal. This division has the power to uphold or reverse an earlier decision or order a retrial.  Cases are generally heard by three judges.

The Criminal Division hears appeals from the Crown Court. It may also be invited to review a criminal case by the government or to consider a point of law at the request of the Attorney General.

Cases in the Court of Appeal are heard by the Lord Justices of Appeal. Each division has a Chief Judge (President) and they are known as follows.

-          Civil division – Master of rolls

-          Criminal Division – Lord Chief Justice

vi)              The Supreme Court (formerly the House of Lords)

The Supreme Court replaced the House of Lords as the highest court in England, Wales and Northern Ireland.  It was established by the Constitutional Reform Act 2005 and was opened in October 2009. It is constituted by 12 Judges known as Justices of the Supreme Court and includes a president and a Deputy President.

The Supreme Court hears appeals from the Court of Appeal and the High Court (only in exceptional circumstances). Appeals are heard by panels of 5, 7 or 9 Justices who give their verdicts collectively rather than as individual decisions. Further, it may sometimes be called to interpret European Union Law and the European Convention on Human Rights, as they relate to UK law.

The European Court of Human Rights

This is the supreme court of the European states which have signed up to the European Convention on Human Rights. Any individual who alleges that their human rights have been violated can bring an action against those responsible. The UK incorporated the European Convention on Human Rights into UK law through the Human Rights act 1998.

The European Court of Justice

This court has the role of interpreting European treaty Law. It should be noted that European treaty laws are enacted in the UK.

Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council is the court of final appeal for Commonwealth countries that have retained to either Her Majesty in Council or to the Judicial Committee. The decisions of the Privy Council are also important to case heard in the United Kingdom as they have persuasive influence over hearing concerning points of law applicable under UK’s jurisdiction.