JUDICIAL PRECEDENT

KEY FACT CHARTS

CONCEPT DEFINITION COMMENT

Stare decisis Stand by what has been Follow the law decided in
decided previous cases for certainty
and fairness
Ratio Decidendi Reasons for deciding The part of the judgment
which creates the law
Obiter Dicta Other things said The other parts of the
judgment- these do not create
law
Binding precedent A previous decision Decisions of higher courts
which has to be bind lower courts
followed
Persuasive A previous decision The court may be „persuaded‟
precedent which does not have to that the same legal decision
be followed should be made
Original precedent A decision in the case This leads to judge „making‟
where there is no law. Eg. Donoghue v.
previous legal decision Stevenson;
or law for the judge to Hunter and others v. Canary
use Wharf Ltd
Distinguishing A method of avoiding a Eg. Balfour v. Balfour not
previous decision followed in Merritt v. Merritt
because the facts in the
present case are
different
Overruling A decision which states Eg. in Pepper v. Hart the
that a legal rule in an House of Lords overruled
earlier case is wrong Davis v. Johnson on the use
of hansard
Reversing Where a higher court in This can only happen when
the same case overturns there is an appeal in the case.
the decision of the
lower court
COURTS COURTS BOUND BY IT COURTS IT MUST
FOLLOW
European Court All courts None
Supreme Court All other courts in the English European Court
legal system.
Court of Appeal Itself (with some exceptions) European Court
High Court Supreme Court
All other lower courts
Divisional Courts Itself (with some exceptions) European Court
High Court Supreme Court
All other lower courts Court of Appeal
High Court County Court European Court
Magistrate‟s Court Supreme Court
Court of Appeal
Divisional Courts
Crown Court Possibly Magistrate‟s Court All higher Courts
County Court and Magistrate‟s Court do not create precedent and are bound by all higher courts
Figure 2: Courts and Precedent

OPERATION OF JUDICIAL PRECEDENT IN THE SUPREME COURT ( HOUSE

OF LORDS)
1898 House of Lords decides in the case of London Street Tramways that it is
bound to follow its own previous decisions
1966 Issue of the Practice Statement
House of Lords will depart from previous decisions when „it is right to do
so‟
1968 First use of Practice Statement in Conway v. Rimmer
Only involves technical law on discovery of documents
1972 First major use of Practice Statement in Herrington v. British Railways
Board on the duty of care owed to child tresspassers
1980’s & House of Lords show an increasing willingness to use Practice Statement to
1990’s overrule previous decisions eg. R v. Shivpuri (criminal attempts) Pepper v.
Hart (use of Hansard in statutory interpretation)
2003 Practice Statement used to overrule the decision in Caldwell on recklessness
in the criminal law
Figure 3: Operation of Judicial Precedent in the House of Lords
THE PRACTICE STATEMENT 1966
“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 well as a basis for orderly
development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in
a particular case and also unduly restrict the proper development of the law. They propose therefore,
to modify their present practice and, while treating formal 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.”
figure 4: Lord Gardiner’s statement in the HOL, July 26,1966

GENERAL RULE FOR COMMENT

COURT OF APPEAL
Bound by European Court Since 1972 all courts in England and Wales are bound by the
of Justice European Court of Justice.
Bound by Supreme Court This is because the Supreme Court (House of Lords) is above
the Court of Appeal in hierarchy. Also necessary for certainty in
the law. Court of Appeal tried to challenge this rule in Broome
v. Cassell (1971) and also in Miliangos (1976). The House of
Lords rejected this challenge. The Court of Appeal must follow
the decisions of the House of Lords.
Bound by its own past Decided by the Court of Appeal in Young’s case (1944), though
decisions there are minor exceptions. In Davis v. Johnson (1979) the
Court of Appeal tried to challenge this rule but the House of
Lords confirmed that the Court of Appeal has to follow its own
previous decisions.
EXCEPTIONS COMMENT
Exceptions in Young‟s Court of Appeal need not follow its own previous decisions
case where:
 there are conflicting past decisions
 there is a Supreme Court (HOL) decision which
effectively overrules the Court of Appeal decision
 the decision was made per incuriam ( in error)
Limitation of per incuriam Only used in „ rare and exceptional cases‟ – Rickards v.
Rickards (1989)
Special exception for the If the law has been „misapplied or misunderstood‟ – R v. Gould
Criminal Division (1968)
Figure 5: Court of Appeal and the doctrine of Precedent
ADVANTAGES DISADVANTAGES
Certainty Rigidity
Consistency and fairness in law Complexity
Precision Illogical distinctions
Flexibility Slowness of growth
Time-saving
Figure 6: Advantages and disadvantages of Judicial Precedent
„The problem with a system of precedent is that it makes the law stand still; it cannot move with the
times.‟
How far would you agree with this criticism? [25]

GENERAL OUTLINE:
1. Definition of Judicial Precedent

2. Operation of the doctrine

a. Explain the Latin maxim of Stare decisis

b. Distinction between Ratio Decidendi and Obiter Dicta
c. Binding vs Persuasive Precedent
d. Original Precedent – HUNTER v CANARY WHARF

3. The Hierarchy of the Courts

a. European Court of Justice

b. Supreme Court
i. Original view
ii. Change in view during the 19th Century- LONDON STREET TRAMWAYS
iii. Practice Statement 1966
iv. Use of Practice statement- CONWAY v RIMMER, HERRINGTON v BRB,
MILANGOS v GEORGE FRANK , MURPHY v BRENTWOOD, PEPPER v
HART
v. Practice Statement in Criminal Law-R v SHIVPURI, R v R & G
c. Court of Appeal
i. Decisions of court above it and attempts in the past that COA should not be
bound- BROOME v CASSELL, MILIANGOS v GEORGE FRANK
ii. Human Rights cases – s.2 (1)(a) HRA 1998 DIRECTOR GENERAL OF
FAIR TRADING refused to follow R v GOUGH
iii. COA and its own decisions – YOUNG v. BRISTOL AEROPLANE
 Two conflicting COA decisions
 Decision of HOL effectively overrules COA decision
 Per incurium – WILLIAMS v FAWCETT, RICKARDS v
RICKARDS
iv. Attempts to change the rule in Young – GALLIE v LEE, DAVIS v
JOHNSON
v. Court of Appeal- Criminal Division- R v TAYLOR, R v GOULD , R v
SPENCER
4. Tools for departure
a. Distinguishing – BALFOUR v BALFOUR, MERRITT v MERRITT
b. Overruling- PEPPER v HART, MURPHY v BRENTWOOD, MILIANGOS
c. Reversing

5. Advantages
a. Certainty
b. Consistency and fairness in law
c. Precision
d. Flexibility
e. Time-saving

6. Disadvantages
a. Rigidity
b. Complexity
c. Illogical distinctions
d. Slowness of Growth

7. Conclusion