Judicial precedent

Magistrate court is the lower court in the hierarchy of he court as this is also called court of
first instance. Then county court and crown court are available county courts are used for
civil litigation and crown courts are used for criminal cases. The cases which prevail in crown
courts came from magistrate court or they are also those fresh cases for the first hearing
they are called indictable offences. High court have three division of chancellor division
family division and queen bench division , there can be both cases for the first hearing and
from the magistrate courts and they hear the cases on the basis of law. Court of appeal in
not considered as first instance court as they don’t hear the case at the first instance nor the
case come directly from magistrate court. They hear appeals , they have two division such as
civil and criminial division of court of appeal. Supreme court is later and higher on all the
other courts discussed yet and this was called early with the name of house of lord, they
changed their name after the practise statement.

The doctrine of judicial precedent comes from the precedent of “stare decisis” which means
to follow the same law already made for the same case. The doctrine of precedent
specifically want to keep the law stable and to have the faith of community on the
application of law.

There are two types of precedent (binding precedent , persuasive precedent) the ratio of
the case creates the decision of case binding and the later judges have to follow the same
law even if they don’t agree to follow. The binding precedent is followed in a circumstance
where the facts of the later case are almost similar to previous case and the decision is
made by the higher court in the hierarchy or in the same level. Such as the decision in the
Donoghue v Stevenson 1932 states a binding precedent that a person will owe the duty of
care to all those who are closely connected to him and normally affected by his act. This law
was created in 1932 by the house of lords and is still used on all cases of duty of care in tort
law.
The obiter is the reasoning of the case, persuasive precedents are in which the courts have
freedom to follow the precedent or not. The case can lose its binding in many ways such as
if it is overruled by the act of parliament, it can be overruled expressly or impliedly. A case
can be expressly overruled when a new act of parliament is implemented according to the
facts of the case. However, the case is impliedly overruled when it becomes contradictory
with the act of parliament.
The case can also be set aside because of the higher courts in the hierarchy such as if the
appellate court reject the appeal and alter the decision of lower courts in this way the case
loses its binding and this will not be compulsory to be used in later cases but can be used as
a reference for the next similar cases.
There are some other prominent ways to avoid the binding precedent or to avoid precedent
used by the courts.
1)overruling
2) reversing
3)distinguishing

Overruling :
 in this part the higher courts in hierarchy might departs the decision made in lower courts.
The previous decisions are no longer binding. Higher court can reaple the decision made
earlier in lower court such as court if appeal can overrule the decision made earlier high
court decision. Overruling can work in a way if the later court thinks that the previous
decision was not correctly decided of may be the law was not correctly used or the later
court might think that the previous law Is no wiser to be used. A famous case R V R 1991 is
very huge example overruling the previous case lower court in this case the defended was
charged with the rape offence with his wife and then lower court choose that there can be
no rape in a marital affair. However, the house of lords overturned the matrimonial
acceptation to rape )

Reversing;
it is where a higher court can lose its responsibility from the decision made in lower court
on appeal the courts can do so when the decision is made as per incuriam that is of similar
nature. In addition the case or it may took so long to find the precedent if it its buried in a a
lot of cases and as well the precedent may become outdate so that’s why the courts can
overrule the case and can form a new obiter and new precedent which will be then followed
by later judges in lower and same level of hierarchy of courts. Such as a R V R 1911 . finally,
the overruling of a lower court decision, by the power given by the precedent to the
hierarchy of courts can weaken and scorn the lower courts.
Distinguishing;
It is where the judge declare the facts of the case currently in hand sufficiently different
from the case in precedent and they says that they are distinguished from each other as in
Belfour v Belfour this was distinguished from merit v merit

(Conclusion)
Overall the doctrine of precedent bring both pros and cons same to the English legal system,
doctrine can be said that it is the thing which is only In the mind of lawyers as this give the
opportunity for avoiding the strictness of judicial precedent that the doctrine do some
flexibility for a decision made in lower courts.

The house of lord enjoys the most superior position in the hierarchy or courts and its
decision bind all other court lower in the hierarchy of courts. By considering the horizontal
application of the doctrine, it may be stated that the House of lord was bound by its own
previous decision until 1966. Lord chancellor issued as practise statement; its main aim was
to set them free from following their own earlier decision. Although house of lord has this
authority but still, they feel uncomfortable to use this power.
Here are some cases where they used the practise statement
Addie v Dumbreck 1929
The defendant owned a park which was located in a field adjoining to a road. There was a
fence around a perimeter of the field although there was large space in the fence. The field
was regularly used as a short cut to a railway station and children used it as play area. A
child visited the land and got killed when he climbed onto a piece of haulage apparatus. It
was held in this case that the duty of care was owned to the trespassers to ensure that they
were safe when coming onto the land.
It was over ruled in British Railways Board v Herrington 1972 a six year old boy got a
electric current and had a serious burn while he visited from the playground onto the
railway line. The railway line was surrounded by a fence however, the part of a fence broke
down and used as a shortcut to the park mostly. The defendant was aware of the break
down of the gap as well continuously used as a route to park. But defendant had failed to do
any repairment to this several months. Under existing authority of Addie v Dumbreck no
duty of care was owed to the trespassers.
However, the house of lords lamented from their earlier decision using the practise
statement and held that the defendant did owe a duty of common humanity to trespassers.
Davis v Johnson 1978 this case conclude the interpretation of the domestic violence and
matrimonial proceedings act 1976. At the court of appeal lord denning referred to Hansard
and restated the rule that Hansard must not be referred to.
Pepper v Hart 1992
The house of lords departed from Davis v Johnson and took a purposive approach to
interpretation holding that Hansard may be referred to and the teacher was no required to
pay tax on the perk he received.