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.