Judicial precedent
Where the decisions of other judges create law for future judges to follow. It is based on the Latin phrase stare decisis, which translated means: ‘stand by what has been decided’.
There are two Latin phrases that are included in the judgment at the end of the case
Law reporting - there must be an accurate record of what the decisions were, in order for judges to follow past decisions. Written reports of judges' decisions have existed since the thirteenth century.
Types of precedent
Ratio decidendi - 'the reason for the decision' - are the legal reasons for the decision reached when a judgement is presented. Includes a summary of the facts of the case, review of arguments that were brought forward in the case, and an explanation of the principles of law that were used to come to the decision. This is what creates a precedent for judges to follow in future cases.
Obiter dicta - ‘other things said’ - is the remainder of the judgement, and it does not have to be followed in future cases. Sometimes judges will speculate on what the decision would have been if the facts of the case had been different. This is part of the obiter dicta.
Binding - the precedent from a previous case that has to be followed by the court if it was made by a court higher up in the hierarchy than them
Original - basically a new precedent - created when a point of law in a case has never been decided on before and the judges have to make a decision which forms a new precedent that futures cases follow. Previous cases that are most similar in principles will be considered to give the judge something to base their decision on.
Persuasive - this is not a binding precedent but may be influential towards the final decision. The judges may consider it and believe that it is a correct principle that they should follow. It can come from sources such as courts lower in the hierarchy, statements made obiter dicta or decisions of courts in other countries
The court hierarchy:
Supreme Court
Court of Appeal
High Court
County Court (only civil)/Crown Court (only criminal)
Magistrates Court (only for criminal cases)
Every court is bound by any decision made by a court above it in the hierarchy. Appellate courts are bound by their own past decisions.
Until October 2009, the senior court was the House of Lords, but that was abolished and replaced by the Supreme Court.
Appellate courts - those that only hear appeals from lower courts. They do not hear any original trials. Often an appeal will be about a point of law, allowing the courts to decide the law. Includes the Supreme Court, Court of Appeal and Divisional Courts (Queen's Bench, Chancery and Family)
Courts of first instance - any court where the original trial of case is held. They rarely create precedent. Includes the High Court and Inferior courts (Crown Court, County Court and Magistrates' Court).
Avoidance techniques
Overruling - where a court states that the precedent decided in an earlier case is wrong. It can occur when a higher court changes a decision made by a lower court in an earlier case, overruling the decision. It can also happen when the Supreme Court uses the Practice Statement to overrule a past decision it made
Reversing - where a court higher up in the hierarchy, in an appeal, overturns the decision made by a lower court on the same case. So for example, the Court of Appeal may disagree with a decision made in the High Court, and can therefore reverse the decision.
Distinguishing - can be used to avoid following a past decision, that would otherwise have to be followed, by the judge finding the facts of the present case to be sufficiently different, allowing a distinguishment to be made between the present case and the previous precedent of the last case.
An example of this are the cases of Balfour v Balfour and Merrit v Merrit, both relating to a wife making a claim against her husband for breach of contract. In the Balfour case, a decision was reached that the wife’s claim could not succeed because there was no legally bind contract; simply just a domestic arrangement between a husband and wife. However, in the Merrit case, the Court of Appeal distinguished from the decision of Balfour which would have been otherwise binding. This was because their agreement has been made in writing and as legally enforceable contract.
Evaluation
Advantages: certainty, consistency and fairness, precision, flexibility (practice statement), time saving, filling gaps.
Disadvantages: rigidity, complexity, illogical distinctions, slowness of growth.
The Practice Statement
It came about in 1966 and allowed the House of Lords to change the law when it believed that an earlier case was wrongly decided. It gave it the flexibility to refuse to follow an earlier case when ‘it appeared right to do so’
The first major use of the Practice Statement was in the British Railways Board v Herrington case, which involved the law on the duty of care owed to a child trespasser. In an earlier case of Addie v Dumbreck, it had been decided that an occupier of land would only owe a duty of care for injuries to a child trespasser if those injured had been caused deliberately or recklessly. However, in BRB v Herrington, it was decided that social and physical conditions had changed since 1929 and the law should also change, allowing the injured child trespassers claim.
There was reluctance in the House of Lords to use it.
It stressed that criminal law needs to be certain and it is not often used in criminal cases. When it is used, there is a recognition that an error may have been made and the most important thing is to put the law right.
From October 2009, the Constitutional Reform Act 2005 transferred the House of Lords' powers to the Supreme Court, including the ability to use the Practice Statement.
The Court of Appeal
There are two divisions - Civil Division and Criminal Division - the rules for departing from precedent are not quite the same in both divisions.
There have been arguments in the past, led by Lord Denning, that the Supreme Court should not bind the decisions of the Court of Appeal.
Some arguments in favour of this is that very few cases reach the Supreme Court because it takes a long time, and high costs are involved with appeals, so it would be cheaper if there was only an appeal to the Court of Appeal without the need of an appeal to the Supreme Court.
Some arguments against it include the system of precedent being broken down and the creation of uncertainty in the law as there would be two conflicting precedents for lower courts to choose from, making it difficult for the lower court judge. The uncertainty would also make it difficult for lawyers to advise clients on the law. Also, there is already a special appeal system, which is the ‘leapfrog’ appeal from the High Court directly to the Supreme court, avoiding going to the Court of Appeal. This saves cost as there only has to be one appeal, however it can only be used where the case involved a point of law of general public importance
What came from the young v Bristol Aeroplane case was that there were only three exceptions that allowed the Court of Appeal to depart from a previous decision. .
Decisions by one division of the Court of Appeal will not bind the other division. However, within each division, previous decisions are normally binding on later decisions, especially for the Civil Division
Where there are conflicting decisions in past Court of Appeal cases, the court can choose which to follow and which to reject.
Where there’s a decision of the Supreme Court that overrules a Court of Appeal decision, the decision of the Supreme Court has to be followed.
Where the decision was made per incuriam (in error), because a relevant Act of Parliament or other regulation has not been considered by the Court, they may depart from their previous decision.