Doctrine (rules) Doctrine (rules) ofof

PrecedentPrecedent

Overview, Binding and Persuasive predent

PRECEDENT – a definitionPRECEDENT – a definition

Precedent is a major source of law –

…precedent is all the decisions I have made in the past that other judges now follow.

Precedent is also known as CASE LAWCASE LAW

PRECEDENT – andPRECEDENT – and Stare DecisisStare Decisis

It means – let the previous decision stand.let the previous decision stand.

It’s important because -Points of law decided in previous similar cases must be followed.followed.Earlier decisionsEarlier decisions influence later cases that are similar.Higher courts assume prioritypriority over lower courts.Higher courts therefore BINDBIND lower courts.The system is predictable, fair and consistent.Binding precedent is the most important part of Stare decisis - it provides consistency in law

A Level Law - Hierarchy of courts Civil Courts

High CourtBinds itself

And lower courts

Only court that canOverrule it’s own

decisions

County CourtMagistrates CourtDoesn’t bind any court

Divisional courtsBinds itself And lower courts

Court of Appeal Civil DivisionBinds itself And lower courts

Supreme CourtBinds itself And lower courts

European Court of JusticeBinds all

Courts but onlyOn European law

A Level Law - Hierarchy of courts Criminal Courts

Only court that canOverrule it’s own

decisions

Queens Bench Divisional courtBinds itself And lower courts

Court of Appeal Criminal DivisionBinds itself And lower courts

Supreme CourtBinds itself And lower courts

Magistrates CourtDoesn’t bind any court

Crown CourtDoesn’t bind any court

Stare DecisisStare Decisis – where’s it all written down?where’s it all written down?

For stare decisisstare decisis to work – judges need access to details of past cases.Earliest cases – 13th century.1865 – Council of Law ReportingCouncil of Law Reporting established.Most widely used modern record – All England Law All England Law Reports.Reports.LEXISLEXIS – electronic law reporting system.Huge increase in electronic systems and data-bases on-line through the internet.Web portal to cases and blogs on law - See Matrix Churchill blog.Case notes of A level law. LRC E law student.

PRECEDENT and thePRECEDENT and the ratio decidendiratio decidendi

It means the reason for decidingthe reason for deciding

If the obiter dictaobiter dicta explains how I got to my decision . . .

the ratio decidendiratio decidendiis the heart of the actual

decision itself The ratio decidendi is what later judges must follow - the essence of Stare decisis

The ratio decidendi is the KEY to the decision that has been made.

The ratio decidendi BINDSBINDS later judges hearing similar cases.

This especially the case in lower courts and the same court.

PRECEDENT andPRECEDENT and Obiter DictaObiter Dicta

It means other things said.other things said.

As I make my judgement, I may give supporting arguments and

points that explain how I arrived at my decision in order to make my

judgement clearer.

Obiter dicta may include…

my thought processes why I arrived at this

decision, and not another…

how the decision might affect future

situations

PRECEDENT –PRECEDENT – THE KEY TERMSTHE KEY TERMS

Precedent – all the decisions made in the

past that other judges now

follow

STARE DECISIS

OBITER DICTA RATIO DECIDENDI

Stand by what has been

decided – do not unsettle the established.

‘Other things said’ – judges in future cases do

not have to follow it.

The reason for the decision. Judges in the same or lower courts must follow where

facts are similar.

PROBLEMS

•Cases often end with more than one speech. Upto 9 in the Supreme Court.

•No sub-headings in judgments to help separate ratio decidendi from obiter dicta.