1 english legal system judicial precedent. 2 judicial precedent n judicial precedent : n is a...

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English Legal SystemEnglish Legal SystemJudicial PrecedentJudicial Precedent

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Judicial PrecedentJudicial Precedent

Judicial Precedent :Judicial Precedent :

Is a process whereby Judges Is a process whereby Judges follow follow previously decided casespreviously decided cases where the where the facts are of facts are of sufficient sufficient similaritysimilarity..

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Judicial PrecedentJudicial Precedent

Doctrine of Judicial Precedent Doctrine of Judicial Precedent involves involves

the application of the the application of the principle of principle of stare stare

decisis.decisis.

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Ratio / ObiterRatio / Obiter The judgement or decision by the The judgement or decision by the

Judge can Judge can fall into two parts.fall into two parts.

Ratio Decidendi :Ratio Decidendi : Reason for the Reason for the decision decision

Obiter dictum :Obiter dictum : Said by the Said by the wayway

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Ratio DecidendiRatio Decidendi

Ratio Decidendi :Ratio Decidendi :

Is the Is the reason or the principlereason or the principle on which on which the the decision on the case is based.decision on the case is based.

Note : The word ratio decidendi is never Note : The word ratio decidendi is never used used in the decision and judgment in the decision and judgment written by the written by the court.court.

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Obiter dictumObiter dictum

Obiter dictum :Obiter dictum :

Is the Judges views on how his decision Is the Judges views on how his decision could could have been different, which he have been different, which he states by the states by the wayway, and explains that a , and explains that a different decision different decision could apply if the facts could apply if the facts were different.were different.

Please note :Please note :The Obiter is not strictly binding, but is The Obiter is not strictly binding, but is

of of persuasive authority in later cases.persuasive authority in later cases.

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Court HierarchyCourt Hierarchy S3(1) European Communities Act 1972 :S3(1) European Communities Act 1972 :

Decisions of the European Court of Justice Decisions of the European Court of Justice (ECJ), are binding, in matters of community (ECJ), are binding, in matters of community

law, law, on all English local courts. (Including the HL)on all English local courts. (Including the HL)

All lower courts are bound by the decision of All lower courts are bound by the decision of the the House of Lords.House of Lords.

The House of Lords is not bound by its own The House of Lords is not bound by its own decision.decision.The Practice statement (1966)The Practice statement (1966)as per Lord Gardineras per Lord Gardiner

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Court HierarchyCourt Hierarchy Court of Appeal (Civil/Criminal)Court of Appeal (Civil/Criminal)

Young v Bristol Aeroplane Co Ltd [1944]Young v Bristol Aeroplane Co Ltd [1944]

Court of Appeal is bound by its own previous Court of Appeal is bound by its own previous decision unless :decision unless :

1) If Its previous decisions conflict, it must decide 1) If Its previous decisions conflict, it must decide which to followwhich to follow

2) CA decision that goes against HL, must not be 2) CA decision that goes against HL, must not be followed.followed.

3) Need not follow previous decision if it was3) Need not follow previous decision if it was

given given “per incuriam”“per incuriam”

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Court HierarchyCourt Hierarchy Question of stare decisis, and is it the Question of stare decisis, and is it the

same in same in both the civil and criminal courts?both the civil and criminal courts?R v Taylor [1950]R v Taylor [1950]CA held that in “questions involving the CA held that in “questions involving the

liberty of liberty of the subject” if a full court considered the subject” if a full court considered that the law that the law has either been has either been misapplied or misapplied or misunderstood’misunderstood’ then then it must reconsider the it must reconsider the earlier decision.earlier decision.

R v Gould [1968]R v Gould [1968]R v Newsome [1970]R v Newsome [1970]

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Court HierarchyCourt Hierarchy

The High Court :The High Court :Is bound by the HL and CA, but not by its Is bound by the HL and CA, but not by its

own own previous decisions.previous decisions.

The Crown Court :The Crown Court :Crown court is bound by the higher courts Crown court is bound by the higher courts

decisions, but not of its own.decisions, but not of its own.

The County Courts and Magistrates The County Courts and Magistrates Courts Courts decisions decisions are not binding on are not binding on any courts.any courts.

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Avoiding precedentsAvoiding precedents DistinguishingDistinguishing

Over rulingOver ruling

ReversingReversing

Per Incuriam Per Incuriam ““through want of care”through want of care” (a mistaken decision by the court)(a mistaken decision by the court)

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DistinguishingDistinguishing Jones v Secretary of State for Social Jones v Secretary of State for Social

services [1972)services [1972)as as per Lord Reidper Lord Reid : :““It is notorious that where an existing It is notorious that where an existing decision is disapproved but cannot be decision is disapproved but cannot be overruled courts tend to distinguish it on overruled courts tend to distinguish it on inadequate grounds. inadequate grounds. I don’t think that they I don’t think that they act act wrongly in so doing, they are adopting wrongly in so doing, they are adopting the less the less bad of the only alternatives open to bad of the only alternatives open to them…but them…but this is bound to lead to this is bound to lead to uncertainty..”uncertainty..”

In short Lord Reid says its OK to distinguishIn short Lord Reid says its OK to distinguish

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DistinguishingDistinguishing But, LJ Buckley thinks otherwise:But, LJ Buckley thinks otherwise:

Olympia Oil v Produce Brokers [1914]Olympia Oil v Produce Brokers [1914]

as per Buckley LJas per Buckley LJ“ “ I am unable to adduce any reason to I am unable to adduce any reason to show why that decision which I am about show why that decision which I am about to pronounce is right..but I am bound by to pronounce is right..but I am bound by

authority which, of course it is my duty to authority which, of course it is my duty to follow..”follow..”

In short stare decisis must be applied In short stare decisis must be applied strictly, according to LJ Buckleystrictly, according to LJ Buckley

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OverrulingOverruling A higher court can overrule a decision A higher court can overrule a decision made in a made in a

earlier case by a lower court.earlier case by a lower court.1) If lower court did not apply the law 1) If lower court did not apply the law correctly.correctly.Anderton v Ryan [1985] overruled by HL inAnderton v Ryan [1985] overruled by HL inR v Shivpuri [1986] HLR v Shivpuri [1986] HL

2) The rule of law contained in the previous 2) The rule of law contained in the previous ratio ratio decidendi is no longer desirabledecidendi is no longer desirable

Miliangos v George Frank Ltd [1975] Miliangos v George Frank Ltd [1975] overuled overuled previous rulings, that damages in previous rulings, that damages in the English courts the English courts have to be awarded in have to be awarded in sterling pounds.sterling pounds.

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ReversingReversing

Reversing is the overturning by a Reversing is the overturning by a higher higher

court, of the decision of the lower court, of the decision of the lower court.court.

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Per IncuriamPer Incuriam A decision reached Per Incuriam is one A decision reached Per Incuriam is one

reached by carelessness or mistake, and reached by carelessness or mistake, and can be can be avoided.avoided.

Morelle v Wakeling [1955]Morelle v Wakeling [1955] as per Lord as per Lord Evershed MREvershed MR

““the only case in which decisions should be the only case in which decisions should be held to have been given per incuriam are held to have been given per incuriam are those those of decisions given in of decisions given in ignorance or ignorance or forgetfulnessforgetfulness of some of some inconsistent statutory inconsistent statutory provision or some provision or some authority binding on the authority binding on the court”court”

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Per IncuriamPer Incuriam Secretary of State for Trade and Secretary of State for Trade and

Industry v Industry v Desai (1991)Desai (1991)as per Scott LJas per Scott LJ“…“…decision involved some decision involved some manifest slip manifest slip

oror errorerror but also that to leave the decision but also that to leave the decision standing would be likely, inter alia, standing would be likely, inter alia,

to to produce produce serious serious inconvenience inconvenience in the in the administration of justice or administration of justice or significant significant injustice to citizens.”injustice to citizens.”

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Can the CA avoid HL Can the CA avoid HL decisions?decisions?

The “per incuriam” rule does not permit the The “per incuriam” rule does not permit the CA CA to ignore decisions by the House of to ignore decisions by the House of Lords.Lords.

In In Cassell V Broome [1972] CACassell V Broome [1972] CA Lord Lord Denning MR, held the case of Denning MR, held the case of Rookes v Rookes v BarnardBarnard [1964] CA to be per incuriam, [1964] CA to be per incuriam, because it did not because it did not follow the previous follow the previous house of lords house of lords decisions.decisions.

He was rebuked by the HL, and they said He was rebuked by the HL, and they said that the CA in fact had stated their opinion that the CA in fact had stated their opinion only, only, and “only meant that they did not and “only meant that they did not agree” with agree” with the HL decision.the HL decision.

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Persuasive PrecedentsPersuasive Precedents Privy Council Judicial committeePrivy Council Judicial committee

Lower courts decisions (ratio)Lower courts decisions (ratio)

Scottish, Irish and Commonwealth Scottish, Irish and Commonwealth courts ratio decidendiscourts ratio decidendis

Obiter dicta of English courtsObiter dicta of English courts

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Advantages/Disadvantages of Advantages/Disadvantages of precedentsprecedents

Advantages :Advantages :1)1) Certainty in the lawCertainty in the law2) 2) Uniformity in the lawUniformity in the law3)3) Its flexible,.distinguishing, overruling etcIts flexible,.distinguishing, overruling etc4)4) Practical in naturePractical in nature5)5) Detailed and a wealth of informationDetailed and a wealth of information

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Advantages/Disadvantages of Advantages/Disadvantages of precedentsprecedents

Disdvantages :Disdvantages :1)1) Difficulties in deciding what is the ratio Difficulties in deciding what is the ratio

decidendidecidendi2)2) If its important case of point of law, it If its important case of point of law, it

would take considerable time for the case would take considerable time for the case to to conclude. R v R (1991)conclude. R v R (1991)

3)3) Cases can easily be distinguishedCases can easily be distinguished4)4) Far too much case law and thus complexFar too much case law and thus complex

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Doctrine of PrecedentDoctrine of PrecedentLaw making potentialLaw making potential

Do the Judges make laws?Do the Judges make laws?Willis v Baddeley[1892]Willis v Baddeley[1892]as per Lord Elsheras per Lord Elsher““There is no such thing as judge made law,for the judges There is no such thing as judge made law,for the judges

do not make the law, though they frequently have to do not make the law, though they frequently have to apply existing law to circumstances as to which it has apply existing law to circumstances as to which it has been previously been authoritatively laid down that been previously been authoritatively laid down that such law is applicable”such law is applicable”

Thus the old view was that they do not make laws.Thus the old view was that they do not make laws.

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The modern view is that judges do make laws:The modern view is that judges do make laws:as per Lord Radcliffe :as per Lord Radcliffe :““..there was never a more sterile controversy than ..there was never a more sterile controversy than

that upon the question whether a judge makes that upon the question whether a judge makes law. law. Of course he does. How can heOf course he does. How can he help ithelp it?”?”

Thus the reality is that judges are continually Thus the reality is that judges are continually applying the existing rules to new fact situations applying the existing rules to new fact situations and and thus creating new laws.thus creating new laws.

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In the mid-ninteenth century the HL In the mid-ninteenth century the HL developed the practice that it would be developed the practice that it would be bound by its own decision.bound by its own decision.London Tramways Co v London County London Tramways Co v London County Council [1898]Council [1898]The HL felt that the decisions of the The HL felt that the decisions of the highest appeal court should be final in the highest appeal court should be final in the public interest so that there would be public interest so that there would be certainty.certainty.

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In 1966 the practice statement by Lord In 1966 the practice statement by Lord Gardiner, changed the rule that the HL were Gardiner, changed the rule that the HL were bound by their own decisions.bound by their own decisions.Reasons for the change :Reasons for the change :1) enables the HL to adapt to the changing 1) enables the HL to adapt to the changing needs.needs.2) enable them to pay more attention to 2) enable them to pay more attention to decisions of superior courts in the decisions of superior courts in the commonwealth.commonwealth.3) change in line with superior courts in other 3) change in line with superior courts in other countries.countries.

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In 1966 the practice statement by Lord In 1966 the practice statement by Lord Gardiner, changed the rule that the HL were Gardiner, changed the rule that the HL were bound by their own decisions.bound by their own decisions.Reasons for the change :Reasons for the change :1) enables the HL to adapt to the changing 1) enables the HL to adapt to the changing needs.needs.2) enable them to pay more attention to 2) enable them to pay more attention to decisions of superior courts in the decisions of superior courts in the commonwealth.commonwealth.3) change in line with superior courts in other 3) change in line with superior courts in other countries.countries.

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Paterson’s Survey (1982) of Nineteen Law Paterson’s Survey (1982) of Nineteen Law

Lords,found that at least twelve thought that Lords,found that at least twelve thought that

law lords had a duty to law lords had a duty to develop the commondevelop the common

law in response to changing social conditionslaw in response to changing social conditions..

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Doctrine of PrecedentDoctrine of PrecedentJudges making lawsJudges making laws

Herrington v British Railways Board[1972]Herrington v British Railways Board[1972]

the judges overruledthe judges overruled Addie v Dumbreck[1929] Addie v Dumbreck[1929]

in a case involving a child trespasser injured in a case involving a child trespasser injured by by

the occupier, “negligently”.the occupier, “negligently”.

1 english legal system judicial precedent. 2 judicial precedent n judicial precedent : n is a...

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