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    Describe The Fundamentals of The Doctrine of Binding Precedent

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    Saadat Bin Siddique
    The doctrine of binding precedent establishes that courts must follow decisions made by higher courts in the legal hierarchy. This provides consistency and certainty in the legal system. It includes both vertical precedent, which binds lower courts to follow higher court rulings, and horizontal precedent, where later courts must respect the decisions of earlier courts. While courts are generally bound by precedent, some flexibility exists, such as for the UK Supreme Court and Court of Appeal to depart from earlier rulings in exceptional circumstances. International courts like the CJEU and ECtHR can also issue binding precedent for UK courts due to its membership in the EU and ECHR. Following precedent promotes fairness, consistency and the rule of law.

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    Describe The Fundamentals of The Doctrine of Binding Precedent

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    Saadat Bin Siddique
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    The doctrine of binding precedent establishes that courts must follow decisions made by higher courts in the legal hierarchy. This provides consistency and certainty in the legal system. It includes both vertical precedent, which binds lower courts to follow higher court rulings, and horizontal precedent, where later courts must respect the decisions of earlier courts. While courts are generally bound by precedent, some flexibility exists, such as for the UK Supreme Court and Court of Appeal to depart from earlier rulings in exceptional circumstances. International courts like the CJEU and ECtHR can also issue binding precedent for UK courts due to its membership in the EU and ECHR. Following precedent promotes fairness, consistency and the rule of law.

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    Describe the fundamentals of the Doctrine of Binding Precedent

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    The doctrine of binding precedent establishes that courts must follow decisions made by higher courts in the legal hierarchy. This provides consistency and certainty in the legal system. It includes both vertical precedent, which binds lower courts to follow higher court rulings, and horizontal precedent, where later courts must respect the decisions of earlier courts. While courts are generally bound by precedent, some flexibility exists, such as for the UK Supreme Court and Court of Appeal to depart from earlier rulings in exceptional circumstances. International courts like the CJEU and ECtHR can also issue binding precedent for UK courts due to its membership in the EU and ECHR. Following precedent promotes fairness, consistency and the rule of law.

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    64 views3 pages

    Describe The Fundamentals of The Doctrine of Binding Precedent

    Uploaded by

    Saadat Bin Siddique
    The doctrine of binding precedent establishes that courts must follow decisions made by higher courts in the legal hierarchy. This provides consistency and certainty in the legal system. It includes both vertical precedent, which binds lower courts to follow higher court rulings, and horizontal precedent, where later courts must respect the decisions of earlier courts. While courts are generally bound by precedent, some flexibility exists, such as for the UK Supreme Court and Court of Appeal to depart from earlier rulings in exceptional circumstances. International courts like the CJEU and ECtHR can also issue binding precedent for UK courts due to its membership in the EU and ECHR. Following precedent promotes fairness, consistency and the rule of law.

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     Describe the fundamentals of the Doctrine of Binding Precedent.

    A precedent is a judicial decision which contains in itself a principle. English Law is


    based on a doctrine called binding precedent. As R. Cross and J. Harris quoted,
    “Every court is bound to follow any case decided by a court above it in the
    hierarchy, and appellate courts (other than the House of Lords) are bound by
    their previous decisions.” Also J. Blom Cooper and G. Drewry quoted, “ ... a
    doctrine which compels judges to synthesize present decisions (or at least
    articulate the reasons for such decisions) out of the accumulated wisdom (or
    folly) of their judicial forebears.” The fundamental principle on which the doctrine
    of binding precedent is based is known as state decisis- means let the decision stand.
    Any previous decision of a higher court is binding on the judges of lower court,
    unless they have any reasonable ground to change the decision.

    The doctrine of binding precedent has two effects- vertical and horizontal. The
    vertical effect of binding precedent means the decisions of higher courts in hierarchy
    will be binding to the lower courts in hierarchy. Lower courts are bound to follow the
    decisions of higher court. On the other hand, the horizontal effect of binding
    precedent explains later courts need to follow the decisions given by the earlier
    courts. There has another term called persuasive precedent in which the court has the
    flexibility to choose which decisions of previous court can be chosen for any
    judgment. Under the practice of persuasive precedent there is no under obligation to
    follow a precedent but the court may have to give an explanation for not following it.

    The highest domestic court in UK court structure is UKSC- UK Supreme Court,


    previously known as the House of Lords. After the UKSC, the Court of Appeal is in
    the position in hierarchy. After that it divides into two divisions, civil and criminal.
    After CoA, the civil division has high court and then county court in hierarchy; and in
    criminal division it has crown court and then magistrate court in hierarchy. There
    arises a question whether the higher courts are bound by their own previous decisions,
    which actually differs from different courts.

    The House of Lords was bound by their own previous decisions before 1966 in order
    to maintain certainty and finality to the litigation. This old practice was established in
    1898 from the famous case of London Tramsway Company Ltd. v. London
    County Council. By this, the HoL held that it will continue to follow its own earlier
    decision. However in 1966 the Lord Chancellor of Apex court set out a practice
    direction which is known as practice statement 1966, in which the HoL was no longer
    bound to follow its own previous decision. Their Lordship recognized that rigid
    adherence to precedence may lead to injustice an also restrict the development of law.
    It might depart from previous decisions where the earlier decisions were influenced
    by a condition which no longer existed. In 1968, the HoL for the first time use their
    power granted under the PS 1966 in the case of Conway v. Rimmer, overruling
    Duncan v. Cammell, Larid and Co.
    The Court of Appeal was bound by its own previous decisions like the HoL. In
    Young v. Bristol Aeroplanes Co, Ltd the CoA set out the rule that it is bound by its
    own previous decisions except in the following circumstances:
     Earlier cases in which the CoA conflicted, it can choose whether to follow
     An earlier case has been overruled by the HoL
     An earlier decision which was reached in error because binding precedent or
    statutory provision was overlooked
    In general these rules apply to both the civil and criminal Court of Appeal. These
    rules give the liberty to the judge and he gets a greater measure of flexibility in order
    to ensure that injustice is not done in individual cases.

    Trial courts are not bound by their own decisions, so the magistrates’ courts, county
    courts and Higher court. These courts are generally free to depart from its previous
    ruling. But the divisional court of the Higher court, being a court of review, is
    generally bound to follow its own previous decisions.

    There are some international courts such as European court of justice- CJEU, the
    European court of human rights- ECtHR; the decisions of these international courts
    are binding to the domestic courts of UK because the UK joined the European
    Community on 1 January 1973 under the terms of the EU Treaty of Accession 1972.
    The European Communities Act 1972 incorporated the EU Treaty into UK law.
    Section 3 (1) of the European Communities Act 1972 bind all UK courts to interpret
    matters of Community law in accordance with the rulings of CJEU and requires the
    courts to take judicial notice of Community legislation and the opinions of the CJEU.
    This litigation began by the case of R v Secretary of State for Transport, ex parte
    Factortame (No. 2). Again the European Court of Human Rights, frequently referred
    to as the Strasbourg Court, is supranational or international court established by the
    European Convention on Human Rights. Aside from judgments, the court can also
    issue advisory opinions. Until 1998, the only way UK citizens could bring a legal
    challenge relying on their rights under the ECHR was to go the European Court of
    Human Rights, and this process could be lengthy and expensive. The Human Rights
    Act 1998 allows the rights guaranteed by the ECHR to be enforced in UK courts –
    increasing everyone’s access to justice in this country. In R (on the application of
    Alconbury Developments Ltd) v Secretary of State for the Environment,
    Transport and the Regions, the House of Lords held that in the absence of some
    special circumstances ‘the court should follow any clear and constant jurisprudence
    of the European Court of Human Rights’. This decision was followed in Ullah [2004]
    UKHL 26 in which Lord Bingham said that the duty of national courts is ‘to keep
    pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly
    no less’.

    In Knauer v Ministry of Justice, the court noted the importance of the doctrine of
    judicial precedent: It is important not to undermine the role of precedent in the
    common law, it is important that litigants and their advisers know, as surely as
    possible, what the law is. Particularly at a time when the cost of litigating can be very
    substantial, certainty and consistency are very precious commodities in the law. If it
    is too easy for lower courts to depart from the reasoning of more senior courts, then
    certainty of outcome and consistency of treatment will be diminished, which would
    be detrimental to the rule of law. In demerits, in "Precedent in English and
    Continental Law" [1934], A. Goodhart stated, ‘By requiring the judges to follow
    precedent we live under a government of laws and not of men. Where impartiality is
    desired, it may paradoxically enable a judge to conceal conscious or unconscious
    partiality under the screen of precedent.’

    The doctrine of binding precedent is a formal system by which judges follow the
    decisions of earlier courts in certain circumstances. Cases are decided in hundred of
    courts everyday but it is only cases decided in the higher courts, that is the Higher
    court and above which are binding on the lower courts. This system is a simple
    hierarchy which is maintaining certainty, finality, consistency, promoting fairness and
    therefore upholding rule of law for years.

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