Judicial precedent refers to the source of law where past decisions of the judges

create law for future judges to follow – also known as case law. This is a major
source of law, both historically and today.

The doctrine of judicial precedent, by definition, means to follow previously

decided cases whereby judges expand the existing principle to the current
problem and in effect interpret the one and evolve the other.

The underlying rationale of the doctrine is to:

● Serve as a guidance to judges in the future

● Encourage a certain degree of consistency, certainty, and also the
predictability in the law
● Diplomatic reasons – maintain traditional respect for previous
decisions in order to not offend the previous judges
● Practicality
The English system of precedent – the doctrine of precedent – is based on the
Latin maxim stare decisis. This supports the idea of fairness and provides
certainty in the law. The full version of the maxim is ‘stare deciciset non quieta
movere’, which means ‘stand by the decision and do not disturb that which is
settled’.
This informally requires judges to follow past decisions on the same questions of
law and fact. A previous case or legal decision must be followed in subsequent
similar cases.

‘Stare decicis’ encouraged both uniformity and flexibility in the law as

judges followed precedent, or carved out distinctions from those precedents,
when issuing rulings.
When it comes to judicial precedent, the main debate here is: Certainty of
Law vs. Development of Law. Professor Julius Stone in ‘The Ratio of the
Ratio Decidendi’ stated that: “… A balance must be struck betneen the need
on one side for legal certainty resulting from the binding effect of previous
decisions and on the other side, the avoidance of undue restriction on the
proper development of law.”

BINDING PRECEDENT
This is a precedent from an earlier case, which must be followed even if the judge
in the later case does not agree with the legal principle. A binding precedent is
only created when the facts to the second case are sufficiently similar to the
original case and a court made the decision, which is senior to (or in some cases
the same level as) the court hearing the later case. In other words, “like cases be
treated alike”.

Ratio Decidendi
Precedent can only operate if the legal reasons for past decisions are known,
therefore at the end of a case there will be a judgement – a speech made by the
judge giving the decision and, more importantly, explaining the reasons for that
decision.

In a judgement the judge is likely to give a summary of the facts of the case,
review the arguments put to him by the advocates in the case, and then explain
the principles of law he is using the come to the decision. These principles are the
important part of the judgement and are known as the ratio decidendi, which
means the reason for deciding.

This is what creates a precedent for judges to follow in future cases. Sir Rupert
Cross defined the ratio decidendi as ‘any rule expressly or impliedly treated by
the judge as a necessary step in reaching his conclusion’.

PERSUASIVE PRECEDENT
This is a precedent that is not binding on the court, but the judge may consider it
and decide that it is a correct principle, so he is persuaded that he should follow
it.

Persuasive precedent comes from a number of sources:

1. Courts lower in the hierarchy

Such as example can be seen in R v R (1991).

R v R (1991)
The House of Lords agreed with and followed the same reasoning as the Court of
Appeal in deciding that a man could be guilty of raping his wife.

2. Decisions of the Judicial Committee of the Privy

Council
Her Majesty’s Most Honourable Privy Council, usually known simply as the Privy
Council, is a formal body of advisers to the Sovereign of the United Kingdom. Its
membership mainly comprises senior politicians, who are present or former
members of either the House of Commons or the House of Lords.

This court is not part of the court hierarchy in England and Wales and so its
decisions are not binding, but, since many of its judges are also members of the
Supreme Court, their judgments are treated with respect and may often be
followed.

Wagon Mound (No 1)

An example of this can be seen in the law on remoteness of damages in the law
of tort and the decision made by the Privy Council in this case. In later cases
courts in England and Wales followed the decision in this case.
This also happened in A-G for Jersey v Holley.

A-G for Jersey v Holley

The majority of the Privy Council (6 out of 9 judges) ruled that in defence of
provocation, a defendant is to be judged by the standard of a person having
ordinary powers of self-control. This was a conflicting decision against the House
of Lords. Although a decision by the Privy Council is not binding on English courts,
the Court of Appeal (5 members) followed Holley for three other cases, and
confirmed that the decision should be followed by courts in England and Wales.3.

3. Obiter dicta statements

The remainder of the judgement that is not the ratio decidendi is called obiter
dicta (‘other things said’) and judges in future cases do not have to follow
it. Sometimes a judge will speculate on what his decision would have been if the
facts of the case had been different. This hypothetical situation is part of the
obiter dicta and the legal reasoning put forward may be considered in future
cases, although, as with all obiter statements, it is not binding precedent.

R v Hone
The Lords commented, as an obiter statement, that duress would not be
available as a defence to someone charged with attempted murder. Duress is
usually a defence against criminal charges. If a thief was forced to steal, they can
use ‘duress’ as a reason to defend themselves – that they were forced to steal, so
they are not that guilty as charged. But the Lords, as mentioned above, ruled
that even if a murderer, or attempted murderer, was forced to kill someone, the
murderer is still guilty – where ‘duress’ will not be available as defence. Later
in R v Gotts, a defendant charged with attempted murder could not use the
defence of duress, due to the obiter statement from Howe, which was followed as
persuasive precedent by the Court of Appeal.

A major problem when looking at a past judgment is to divide the ratio

decidendi from the obiter dicta, as the judgement is usually in a continuous
form, without any headings specifying what is meant to be part of the ratio
decidendi and what is not.

4. A dissenting judgment
Where a case has been decided by a majority of judges, the judge who disagreed
will have explained his reasons. If that case, or a similar case, goes on appeal to
the Supreme Court, it is possible that the Supreme Court may prefer the
dissenting judgment and decide the case in the same way.

The dissenting judgment has persuaded them to follow it.

5. Decisions of courts in other countries

This is especially so where the other country uses the same ideas of common law
as in our system. This applies to Commonwealth countries such as Canada,
Australia and New Zealand. The weight to be attached to any individual
persuasive precedent will depend on several factors:

● Rank of the court in the hierarchy Prestige of the judges involved

Date of the case
● Whether the judgment was reserved or given ex tempore. When a
decision is being delivered ‘ex tempore’ is when a judge hands down
a decision in a case soon or straight after hearing it. If the judgment
was reserved, it means that a judge does not give his decision and
he will deliver it later in written form.
● Whether there was any dissenting opinion

● Whether the case was contested

● Whether the point in question was argued or merely conceded by
counsel

JUDICIAL TOOLS
These are the ways a judge may use to avoid following precedent.
1. Reversing
This is where a court higher up in the hierarchy overturns the decision of a lower
court on appeal in the same case. E.g. the Court of Appeal may disagree with the
legal ruling of the High Court and come to a different view of the law; in this
situation it reverses the decision made by the High Court. Its possible to reverse
and overrule in the same case – R v Kingston.

2. Distinguishing
Distinguishing is a method, which can be used by a judge to avoid following a
past decision that he would otherwise had to follow. This means that the judge
finds that the material facts of the case he is deciding are sufficiently different for
him to draw a distinction between the present case and the previous precedent.
He is not then bound by the previous case.

Balfour v Balfour and Merritt v Merritt

Both cases involved a wife making a claim against her husband for breach of
contract. In Balfour it was decided that the claim could not succeed because
there was no intention to create legal relations; there was merely a domestic
arrangement between a husband and wife and so there was no legally binding
contract. The second case was successful because the court held that the facts of
the two cases were sufficiently different in that, although the parties were
husband and wife, the agreement was made after they had separated. This
distinguished the case from Balfour; the agreement in Merritt was not just a
domestic arrangement but meant as a legally enforceable contract.

Distinguishing is sometimes used by judges as a tool to depart from a

decision he/she does not favour, or so Michael Zander said: “… Sometimes
the court distinguishes the undistinguishable as the only nay to escape from
the clutches of an unnelcome precedent nhich nould othernise be binding.
This process nill bring the lan into uncertainty for it abuses the integrity of
the process and cheapens the intellectual tools of the trade.” One of the
cases that supported Michael Zander’s claim was Hillyer v. The Governor
of St. Bartholomen’s Hospital.

Hillyer v. The Governor of St. Bartholomen’s Hospital

The court is saying that the head management of the hospital is not responsible
for negligence in a patient’s (surgical) treatment. Even though the surgeon
selected by the governor, whose job is to select their medical staff with skills, had
caused grievous bodily harm to the defendant. This prevented the defendant
from using his hands in his medical profession. But the governors are not liable.
3. Overruling
This is where a court in a later case states that the legal rule decided in an
earlier case is wrong. Overruling may occur when a higher court overrules a
decision made in an earlier case by a lower court. E.g.:

● The Supreme Court overruling a decision of the Court of Appeal.

● The European Court of Justice overrules a past decision it has made.
● The House of Lords used its power under the Practice Statement to
overrule a past decision of its own.

Overruling is sometimes seen as one important method by which the

doctrine of precedent is kept flexible. When a decision is overruled, the
authority is no longer binding either on subsequent courts of the court itself,
which is overruling.

HIERARCHY OF COURTS
The hierarchy of courts is essential for the effective operation of the system of
precedent. All courts are bound by decisions of a higher court.
THE SUPREME COURT
Decisions of the Supreme Court (formerly known as the House of Lords) are
binding on all lower courts. The then House of Lords regarded it self bound by
their own previous decisions – London Tramways v London County
Council.
Reasons for this:

● As highest appeals court their decisions should be final

● Its in the public interest to ensure certainty and an end to litigation
It was realised that the final court of appeal should have more flexibility, and
in 1966, the Lord Chancellor issued a Practice Statement announcing a
change to the rule in London Street Tramnays v London County Council.
The Practice Statement by L. Gardiner LC said: ‘Their Lordships regard the use of
precedent as an indispensable foundation upon which to decide what is the law
and its application to individual cases. It provides at least some degree of
certainty upon which individuals can rely in the conduct of their affairs, as nell as
a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that the rigid adherence to precedent may
lead to injustice in the particular case and also unduly restrict the proper
development of the law. They propose, therefore, to modify their present practice
and while treating former decisions of this House as normally binding, to depart
from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively
the basis on which contracts, settlement of property and fiscal arrangements
have been entered into and also the especial need for certainty as to the criminal
law. This announcement is not intended to affect the use of precedent elsewhere
than in this House.”

Use of the Practice Statement 1966

From 1966, this Practice Statement allowed the House of Lords to change the
law when it believed that an earlier case was wrongly decided.

It had the flexibility to refuse to follow an earlier case when ‘it

appeared right to do so’. This phrase is, of course, very vague and gave little
guidance as to when the House of Lords might overrule a previous decision.
In fact, the House of Lords was reluctant to use this power, especially in the first
few years after 1966.

From the mid-1970s onward the House of Lords showed a little more willingness
to make use of the Practice Statement.

Jones v Sec State for Social Services

The House of Lords even with its new freedom has used it sparingly especially in
the construction of statutes and documents.

Food Corp of India v Anticlizo Shipping

Nor will the House reconsider its own previous decision merely because that
decision has caused grave concern unless they are satisfied that a departure from
the earlier decision helps resolve the dispute in the case.
The Practice Statement stressed that criminal law needs to be certain, so it was
not surprising that the House of Lords did not rush to overrule any judgments in
criminal cases.
Where the Practice Statement is used to overrule a previous decision, that past
case is then effectively ignored. The law is now that which is set out in the new
case.

With the change over from the House of Lords to the Supreme Court in October
2009, the Practice Statement does not strictly apply to the Supreme Court, so it is
not clear whether this court will use the Practice Statement. However, the
Practice Rules of the Supreme Court state that ‘If an application for permission to
appeal asks the Supreme Court to depart from one of its own decisions or from
one of the House of Lords’ this should be stated clearly in the application and full
details must be given. This suggests that the Supreme Court will operate a
similar system to that under the Practice Statement.

Connay v Rimmer
Court unanimously overruled its previous decision in Duncan v Cammel Laird
1942 on discovery of documents and held that a Minister’s affidavit was not
binding on the courts. It is the court who will decide whether such documents
were to be disclosed or should public interest immunity be upheld.

Herrington v British Railway Board

House of Lords overruled Addie & Sons v Dumbreck. Occupier of premises was
only liable to an injured trespassing child if it was intentional or reckless
compared to the “common humanity” test applied in ADDIE which required an
investigation into whether the occupier has done all that a humane person could
do.

Vesty v Commissioners of Inland Revenue

House of Lords overruled Congrieve v Commissioners of Inland Revenue. House of
Lords would work on the premise that to not only was the decisions wrong but
also that it would produce “startling and unacceptable consequences … when
applied to circumstances never contemplated when it was decided”.

R v R (1991)
The defendant was charged with the attempted rape of his wife. At the time of
the offence the couple had separated although no formal legal separation
existed and neither party had partitioned for a divorce. House of Lords abolished
a 250 rule (Hale’s theory) on marital rape.

Some say this amounts to usurping Parliament’s function.

 R v Clegg
House of Lords was averse to judicial law making when asked to do so to create
a new qualified defence which will have the effect to reduce murder to
manslaughter.
One of the key examples of cases influenced by the Practice Statement 1966 was
C v Director of Public Prosecutions.

C v Director of Public Prosecutions

A child of 12 is charged by section 9 (1) of the Criminal Attempts Act 1981 –
Interference with Vehicles. The Divisional Court held he was ‘doli incapax’ unless
there is “positive proof adduced by the prosecution that in fact he knew that what
he did was seriously wrong”. House of Lords held: “The presumption was no
longer part of the law of England, (divisional court) had engaged in unjustified
judicial law-making…”

COURT OF APPEAL
The general rule is that the Court of Appeal is bound by its own previous
decisions. The decisions of one division of the Court of Appeal does not bind the
other division.

Davis v Johnson
The Court of Appeal tried to challenge this rule but the House of Lords confirmed
that the Court of Appeal had to follow its own previous decisions.
Exceptions to the general rules – Lord Denning when he wanted to give an
exception in one of the cases: Young v Bristol Aeroplane Co Ltd said: The
Court of Appeal can choose between its previous decisions, which to follow and
which to depart from. However, the Court of Appeal must obey the precedent
from the Supreme Court. Sometimes, the Court of Appeal declares a decision to
be ‘per incuriam’.
Exceptions in Young’s Case
Court of Appeal need not follow its own previous decisions where:

1. THERE ARE CONFLICTING PAST DECISIONS

Tiverton Estates v Wearnell

Court of Appeal refused to follow its decision in Lawv Jones, which was only
decided by a differently constituted Court of Appeal 6 months earlier.
2. THERE IS A SUPREME COURT DECISION WHICH EFFECTIVELY
OVERRULES THE COURT OF APPEAL DECISION

Family Housing Association v Jones

The Court of Appeal refused to follow 3 of its own recent decision although these
recent decisions have not been expressly and which was subsequently overruled
by Westminster City Council v Clarke.
3. THE DECISION WAS MADE PER INCURIAM
‘Per incuriam’ means a wrong decision. It points to previous decisions that have
been reached through carelessness, ignorance, forgetfulness or mistake of a
relevant statutory provision or binding decision of the House of Lords or Court of
Appeal

Duke v Reliance System

Court of Appeal in the earlier case must have reached a different conclusion had
an uncited statute or binding decision in mind.
The ‘per incuriam’ defence is wide in its context and therefore care must be taken
before the defence can be relied upon.

Recent developments have shown that the ‘per incuriam’ defence only applies in
exceptional circumstances where the Court of Appeal’s earlier decision involved a
‘manifest slip or error’.

Williams v Fancett
The exceptional circumstances which must be proved for ‘per incuriam’ are:
● Where the error in the previous cases could be clearly detected

● Where the cases concerned the liberty of the subject

● The cases were of a nature that it was unlikely that they would ever
reach the House of Lords which could rectify the error (Langley v
Northnest Water)

ADVANTAGES OF PRECEDENT

1. Certainty
Because the courts follow past decisions, people know what the law is and how it
is likely to be applied in their case. It allows lawyers to advise clients on the
likely outcome of cases. It also allows people to operate their businesses
knowing that financial and other arrangements they make are recognised by
law. The House of Lords Practice Statement pointed out how important certainty
is.

2. Consistency and fairness in law

It is seen as just and fair that similar cases should be decided in a similar way,
just as in any sport it is seen as fair that the rules of the game apply equally to
each side. The law must be consistent if it is to be credible.

3. Precision
As the principles of law are set out in actual cases, the law becomes
very precise. It is well illustrated and gradually builds up through the different
variations of facts in the cases that come before the courts.

4. Flexibility
There is room for the law to change as the Supreme Court can use the Practice
Statement to overrule cases. The ability to distinguish cases also gives all courts
some freedom to avoid past decisions and develop the law.

5. Time-saving
Precedent can be considered a useful time-saving device. Where a principle has
been established, cases with similar facts are unlikely to go through the lengthy
process of litigation.

DISADVANTAGES OF PRECEDENT

1. Rigidity
The fact that lower courts have to follow decisions of higher courts, with its past
decisions (Court of Appeal), can make the law too inflexible so that bad decisions
made in the past can be perpetuated. There is an added problem that so few
cases go to the Supreme Court. Change in the law will only take place if parties
have the courage, the persistence and the money to appeal their case.

2. Complexity
Since there is nearly half a million reported cases it is not easy to find all the
relevant case law even with computerised databases. Judgements are often very
long with no clear distinction between comments and the reasons for the
decision.

3. Illogical distinctions
The use of distinguishing to avoid past decision can be very complex. The
differences between some cases may be very small and appear illogical.

4. Slowness of growth
Reforms of law are slow since so fewer cases go to the Supreme Court.