The Problems Created by the Doctrine of Judicial Precedent 

Works Cited Not Included 

Introduction 

This submission will discuss the problems created by the Doctrine of 

Judicial Precedent and will attempt to find solutions to them. 

Whereas, English Law has formed over some 900 years it was not until 

the middle of the 19th Century that the modern Doctrine was 

‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). 

Law is open to interpretation, all decisions made since the birth of 

the English Legal System, have had some form of impact whether it is 

beneficial or not 

The term ‘Judicial Precedent’ has at least two meanings, one of which 

is the process where Judges will follow the decisions of previously 

decided cases, the other is what is known as an ‘Original Precedent’ 

that is a case that creates and applies a new rule. 

Precedents are to be found in Law Reports and are divided up into ‘Binding’ 

and ‘Persuasive’. “A Binding Precedent is a decided case which a 

court must follow even though it is considered to have been wrongly 

decided…” (Terence Ingman, 2002, Page 420). “A Persuasive Precedent 

is one which is not absolutely binding on a court but which may be 

applied” (Terence Ingman, 2002, Page 420) Bromley London Borough 

Council V Greater London Council (1982), Searose Ltd V Seatrain (UK) 

Ltd (1981). 

There are certain elements that Judicial Precedent is dependant upon, 

they are that the material facts of the case must be the same, the 

principle must be a proposition of law, it must form part of the Ratio 

(see below) and that there has to be sufficient and accurate reports 

of earlier decisions. There are six main elements to the Doctrine of 

Judicial Precedent which are as follows:- 

Ratio Decidendi (Ratio): The reason for deciding, this is known as the 

legal reason for a Judges decision, the Ratio of a case although it 

can sometimes be somewhat difficult to interpret it is a fundamental 

part of the Doctrine itself Hedley Byrne and Co. Ltd V Heller and 

Partners Ltd (1964), Rondel V Worsley (1969). There can be multiple 

Ratios (Rationes Decidendi) in a case bearing in mind that only the 

reasons necessary for the decision of the case can be Ratio and it is 

the Judge who must decide which of the Ratios is relevant to that 

particular case. 

Obiter Dictum (plural Dicta): A saying by the way only has an 

occasional bearing on the case in question, it is not necessary for 

the judgement of a case as it is just a view expressed by a Judge on a 

point of law which is not directly connected to the case. It is a 

Persuasive Authority (see below) and therefore not a binding one in 

future cases Hetherington (deceased) (1989), R (The Crown) V Secretary 

of State for the Home Department (ex parte Ku) (1995). 

Persuasive Authority: The most obvious form of Persuasive Authority is 

Obiter Dicta, there are however several forms of Persuasive Authority, 

such as the following, decisions made by Courts lower down the English 

Court System i.e. The House of Lords (HL) may follow a Court of Appeal 

(CA) decision on a particular case although as that decision is not a 

binding one the Judge is not obliged to do so, in spite of this there 

was a case in 1991 where the HL did chose to follow the decision 

previously set by the CA that was R V R (1991) which was a marital 

rape case the HL agreed with the CA and held the husband accountable. 

Another form of Persuasive Authority is decisions made by courts 

outside English Courts system for instance in Scottish, Irish, 

Commonwealth (Australia, Canada, New Zealand) and foreign courts this 

is when there may be no cases on a particular point of law in the 

English Legal System but there may on the other hand be a similar case 

where the decision has already been given which therefore means they 

can state this as a point of reference if it helps to determine the 

outcome of that case and “Recommendations of the Privy Council-these 

are particularly influential, since the Judicial Committee is usually 

made up of Law Lords.” (Michael Doherty, 2003 Page48). 

Distinguishing: Cases are distinguished by their facts and as the 

facts of anyone case are never identical it can be seen as easy to 

‘distinguish’ if the differences between the cases appear to be great 

enough, this therefore means that the Court may be able to escape 

following it as a precedent England V Cowley (1873), Oakley V Lyster 

(1931). 

Overruling and Reversing: Overruling is when “A Court of competent 

jurisdiction within the hierarchy of the courts may declare that the 

decision in a previous case is no longer good law…” (Michael Doherty, 

2003, Page 48) this may be because the previous court did not depict 

the law properly. Horsler V Zorro (1975) by the House of Lords in 

Johnson V Agnew (1979). The HL may ‘overrule’ its own decisions and 

that of any court lower in the legal system; the CA however cannot 

‘overrule’ a decision made by the HL or one made by the CA itself. 

Reversing occurs when a court higher in the court system ‘overturns’ a 

decision in a case from a lower court on appeal the appeal court will 

then use instead its own decision. Reversing can only be done by a 

court with adequate authority for example the HL or CA; the appeal 

court will then replace it with its own decision. 

Per Incuriam Statements: through want of care is a well founded 

technical rule if Per Incuriam has been stated then the decision made 

by that particular court cannot be binding. This could be as the 

court neglected to consider all possible information such as suitable 

statutes and case authorities before making their decision. The Per 

Incuriam statement has to be great enough to cause a significant 

change to the outcome of that particular case; because of this courts 

are reluctant to state Per Incuriam as a fear of causing disrespect to 

the Judge who came to the original decision. 

Hierarchy of the Courts 

European Court of Justice (ECJ): sits in Luxembourg any decisions made 

by the ECJ are binding on courts but like the HL it is not binding on 

itself even though some previous decisions may determine decisions 

made in the future. It is also binding on all of the English courts 

including the HL although it has no influence within the English Legal 

system. 

European Court of Human Rights (ECHR): sits in Strasbourg and was 

created in 1959 but only put into practice in 1998, since the Human 

Right Act 1998 decisions by the ECHR have been amplified and even 

though the decisions may not strictly be binding they may be seen as 

highly persuasive. ‘Thalidomide case’ Attorney-General V Times 

newspaper Ltd (1972) 

The House of Lords (HL): The President of the HL is The Lord 

Chancellor, the HL is binding on all courts in the English Legal 

system and like the ECJ it is not binding on itself. The HL is a 

superior court and deals with the more significant and complicated 

cases. It is the highest court in the United Kingdom and can only be 

‘overruled’ by either a statute or by the rebuttal of the house to 

follow them in later cases. It is the final appeal court for cases in 

England, Wales, Northern Ireland and Scotland. London Tramways Co. 

Ltd V London County Council (1898) 

The Court of Appeal (CA): There are two divisions in the CA they are, 

the Civil Division and the Criminal Division both of these are bound 

by decisions made by the HL and by decisions of their own. The CA is 

the first appeal court if a further appeal is required the case then 

progresses onto the HL. Family Housing Association V Jones (1990) 

The High Court: consists of the Queens Bench Division (QBD), the 

Chancery Division and the Family Division. Each of the three 

divisions has further divisional courts they are Divisional Court of 

Queens Bench which hears “appeals on points of law on cases stated by 

magistrates and the Crown Court…” (Dennis Keenan, 1998, page 36) 

Divisional Court of the Chancery Division which hears “appeals in 

bankruptcy cases from courts outside London, Bankruptcy Court of the 

Chancery Division hearing bankruptcy appeals from London.” (Dennis 

Keenan, 1998, page 36) and the Divisional Court of the Family Division 

“this court hears appeals from magistrates’ courts in family 

proceedings.” (Dennis Keenan, 1998, page 36). Decisions made by a HC 

Judge are binding on the lower courts but are not binding on courts 

higher in the Court Structure or on other HC Judges this can cause 

conflicting HC decisions an answer to this was stated in Colchester 

Estates V Carlton Industries plc (1984) 

Other Courts: these are Magistrates’ Courts, County Courts and the 

Crown Court These Courts are at the bottom of the court structure and 

are the courts with the least amount of power. 

Some of the Advantages and Disadvantages of the Doctrine of Judicial 

Precedent and the courts are that: it can save time, if the problem 

arising on the case in question has already been resolved in a case 

previously, it is seen as practical rather than theoretical as the 

majority of case law is based around real situations and cases instead 

of in books and paper. 

It is flexible, although a decision made in a previous case may not be 

relevant it can sometimes be somehow manipulated to adapt to current 

case and therefore adjust itself to new circumstances. 

While there are advantages with the Doctrine and the courts there are 

of course disadvantages, it is seen as ‘bulky and complex’ this means 

there may be a substantial amount of cases and law reports to consider 

and therefore it becomes increasingly difficult to research all the 

relevant law. Judges will often try and ‘distinguish’ or ‘overrule’ 

cases in order to escape following it as a precedent, they may also be 

forced to make ‘illogical distinctions’ to avoid an unfair result. 

The Doctrine is perceived as ‘Rigid’ which may in turn limit the 

Judges discretion when deciding the outcome of a case. Some may argue 

that having two appeal courts can be an advantage the question lies in 

whether there is really a need for two appeal courts in the court 

structure when, it is possible for one to carry out the combined work 

of the two, the solution to this is of course to abolish one the 

obvious one to go would be the HL. There is a current debate in 

Parliament as to whether drink drivers previous convictions should be 

made public when the court comes to sentence them the obvious problem 

would be would this make the verdict impartial or not and would this 

be a violation of there ‘defendants’ Human Rights? 

In conclusion although the Doctrine provides a framework for Judges to 

view each case, are the precedents only relevant to the times they 

were set? It could be argued that they are not meeting the present 

day’s society’s needs with regards to the law. In today’s society 

persistent offenders are using the law to their advantage as seen in 

the current use of the Anti-Social Behaviour Orders (A.S.B.O), however 

if the law was changed to allow the disclosure of previous offences 

and convictions it would bring into account impartiality and a 

possible Human Rights violation. 

Taking into account both the advantages and the disadvantages of the 

Doctrine it would appear that there are many more advantages to the 

Doctrine than disadvantages, overall it is seen as the fairest system 

in deciding the outcomes of each individual case and in the English 

Legal System everyone is afforded the principle of Innocent until 

proven Guilty.