Chapter 2: Judicial Precedent

Question 1

What is the doctrine of judicial precedent

Answer 1

A set of basic principles of the common law system where previous decisions are followed in subsequent cases by the judges which are similar

Question 2

What is a binding precedent

Answer 2

Precedent that a later court is obligated to follow

Question 3

What is the rule of vertical and horizontal precedent

Answer 3

Vertical precedent
* All courts bind all lower courts, and some courts, to some extent, also bind themselves

Horizontal precedent
* Not binding, but can use precedents from other courts from their level

Question 4

What is ratio decidendi

Answer 4

Ratio means the reason for the decision (why)

Dicidendi means the outcome of the judgement (decision itself)

Question 5

What are the 2 outcomes of a judgement (decidendi)

Answer 5

• Appeal dismissed
• Appeal allowed

Question 6

What is stare decisis

Answer 6

Meaning, ‘to let the decision stand’ or ‘to stand by the things decided’

Usually followed by ratio decidendi

Question 7

What is obiter dicta

Answer 7

• Whatever that is not in the final decision/judgement (minority judgement) becomes the obiter dicta
• Can be used in cases later on, although not binding, but influential
• ‘Statements made by the way’

Question 8

What is the concept of ratio in ratio dicidendi

Answer 8

• Not explicitly identified in the judgement
• Challenging to find the ratio
• Open to argument

Question 9

What is the ratio dicidendi in Donoghue v Stevenson

Answer 9

Ratio - The bottle was opaque, if it wasn’t then decision would be different

Dicidendi - Manufacturer liable for negligence

Question 10

What is the ratio dicidendi in Grant v Australian Knitting Mills

Answer 10

Ratio - Woollen underpants had sulphites and can’t be seen

Dicidendi - liable for negligence

Question 11

What is the heirarchy of the courts in the UK?

Answer 11

1. Supreme Court
2. Court of Appeal (2 divisions)
3. High court (3 divisions)
4. County Court (for civil cases)
5. Crown Court (for criminal cases)
6. Magistrates’ Court (for minor criminal cases)

1 (being the highest) > 6

Question 12

Is the Supreme Court binding on courts?

Answer 12

The UKSC is binding on all the lower courts and binding on itself - London Sreet Tramways v London County Council (1898)

Question 13

Can UKSC depart from its own decisions? If so, what allows it to do so?

Answer 13

• The Practice Statement 1966 - issued by Lord Gardiner
• Allows Supreme Court to depart from their own decisions ‘when it appears right to do so’

Question 14

What is the purpose for The Practice Statement 1966?

How often is this used? What case provides this?

Answer 14

• It prevents injustice and to ensure proper development of the law
• Although rarely used to ensure stability of law - Jones v SOS for Social Services

Question 15

What are the 2 divisions of the Court of Appeal?

Answer 15

Criminal division
Civil division

Question 16

What is the nature of precedents of the COA?

Answer 16

The COA is bound by the UKSC, but binding to all the lower courts. And also its previous decisions

Question 17

Can the COA depart from its previous decisions? What is the case that establishes this?

Answer 17

COA can only depart from its previous decisions in exceptional circumstances - established in Young v Bristol Aeroplanes

Question 18

What are the 3 conditions that COA are not bound by precedent - Young v Bristol Aeroplanes

Answer 18

1.When there are 2 conflicting COA decisions
2. Conflict between the COA and UKSC decision
3. Per incuriam decisions (made decision without applying principle or all principles).

When decision reached in error, needs to be objectively wrong, i.e. missed out core principles. The COA in DN v SOS [2018] EWCA

Question 19

To what extent is the COA always bound to the UKSC?

Answer 19

The COA is ALWAYS bound to precedents of the UKSC

Although there being attempts to overcome principles by Lord Denning

Question 20

What are 4 attempts made by Lord Denning to depart from precedents of the UKSC, and what are the arguments brought up?

Answer 20

1. Broome v Cassell [1971] - Argued previous was made per incuriam
2. Schorsch Meier GmbH v Hennin [1975] - Argued the ‘laspse rule’, and stated ‘with the reason for this rule ceasing, the law itself no longer exists’
3. Re United Railways of Havana and Regla Warehouses(1961) - L.D. and Foster J agreed that decision of the HOL has ran its course. that the rule seems to have existed for over 300 years
4. Miliangos v George Frank (Textiles) Ltd [1977]

Question 21

What occured and what is the takeaway in Miliangos v George Frank (Textiles) Ltd [1977]

Answer 21

• This is the only case that the HOL had the opportunity to comment on the issues, but still disapproved due to notion of stare decisis
• However, the HOL did overrule thier previous decision on the same grounds proposed by L.D
• This comes to show that only the HOL can overrule or depart from precedent, not for the COA

Question 22

To what extent is the COA bound to its own previous decisions?

Answer 22

By stare decisis, it is that COA is bound to their own decisions.

Although note Lord Denning’s view to depart from COA’s previous decisions due to inflexibility

Question 23

2 cases by Lord Denning’s view to COA departing from their decisions

L.D view on whether COA is binding on its own previous decisions

Answer 23

Gallie v Lee
Davies v Johnson [1978]

Question 24

Davies v Johnson

Answer 24

Facts:

• 2 people not married but had a baby together, but cohabited
• Johnson was violent and Davis ran away with her child to a refuge for battered wives

Held:

• 1976 Act did not protect a female cohabitee where the parties were joint tenants or joint owners but only where she was the sole tenant or sole owner of the property

COA considered the same question on two cases only few months earlier - B v B [1978] and Cantliff v Jenkins

Takeaway:

• There was no conflicting decisions, and both the cases used applied the same Act/principle. Thus, the precedent was binding
• They were binding either way, although may be different material facts and controversial
  (Horizontal precedent)

Question 25

What did Lord Diplock say about L.D in **Davies v Johnson**

Answer 25

The rule laid down in the Bristol Aeroplane case strictly says that there can only be departure if it fits in those 3 categories/scenarios. If it does not, then so be it

Question 26

What are arguments to agreeing with Lord Denning on allowing COA to depart from its own deicison/or UKSC decision?

Answer 26

1. The exceptions under **Young v Bristol Aeroplanes** is too limited to do justice at the COA. (i.e. 'per incumriam') 2. Proper room for **development** of law. HOL usually reluctant to change law and PS 1966 is rarely used. 3. Achieve justice at an **earlier stage**. Candler v Crane, Christmas (1951) remedied only in Hedley Byrne v Heller (1963). 4. **COA hears more cases** than the HOL.HOL may never get the opportunity to correct that error (R v Smith (Morgan) (2000)) 5. **Litigans lack financial means** to appeal to the UKSC/HOL (Costly)

Question 27

What are the arguments disagreeing with Lord Denning on arguing that COA should be allowed to depart from their own decision

Answer 27

1. **Uncertainty in the law** - Risk of setting aside long established principles in order to do what is right in the individual case (inconsistencies) 2. **Unity of decisions** - HOL loses its distinction if COA given same flexibility 3. Respecting the hierarchy 4. **Declaratory theory** - COA should merely declare/apply precedent as laid down by previous judges 5. **Other departure mechanisms available** that is sufficient enough to do justice - **distinguishing material facts** 6. **Exceptional circumstances** - R v James & karimi (2006)

Question 28

What was the exceptional circumstance that COA followed Privy Council instead of HOL - **R v James & karimi (2006)** | Keep in mind Privy Council is persuasive precedent

Answer 28

1. At that time, the only binding precedent was from HOL - **R v Smith (Morgan)(2000)**. * The decision should be a subjective test for provocation defence to murder 2. Then UKPC (as the HOL and PC **members are the same**) decided to correct their error in Smith. * **AG for Jersey v Holley (2005)**. Should the objective test not the subjective test * Normally, Supreme Court is binding on all other courts, although in this case, **Privy Council has expressly directed that this case would prevail**

Question 29

What are the 3 other general departure mechanisms?

Answer 29

1. Reversing - A case is reversed when the **loser appeals** and the **appeal courts agrees** with them 2. Distinguishing - The judge will find a difference between the **material facts** or the **legal reasoning** in the present case the earlier case that would otherwise be a binding precedent 3. Overruling - When a higher court, dealing with **indistinguishable material facts**, either expressly overrules the earlier case or produces a ratio which is **inconsistent with that of the earlier case **

Question 30

What is the case that 'distinguishing' an old case

Answer 30

**Hillyer v St Bartholomew hospital (1909)** distinguished in **Cassidy v Ministry of Health (1951)** * Hillyer: Consultant surgeon - no control by the hospital * Cassidy: Resident surgeon - employer hospital had control

Question 31

What is the case that 'overruled' the old case

Answer 31

British Railways Board v Herrington [1972] AC 887 * Involved the **duty of care owed** by an occupier of land to people trespassing on the land * Overruled the case of **Addie v Dumbreck [1929] AC 358** * HOL in Herrington held that **social attitudes had changed** in the intervening 50 years, and that occupiers of land, as matter of common humanity, **should take reasonable steps to deter people from trespassing where they are likely to be injured**

Question 32

What are the 2 types of overruling

Answer 32

**Expressed overruling** and **Implied overruling** * parliament can expressly overrule any case if they choose to do so

Question 33

Can an **obiter** by the UKSC be binding over a binding COA precedent?

Answer 33

In one instance, **R v Barton [2020] EWCA Crim 575** the Court of had to consider whether remarks made obiter dictum in the **Supreme Court in the case of Ivey v Genting Casinos [2017]** * COA found out that it was **bound by the obiter of the Supreme Court in Ivey** and that it could **disregard the judgement in Ghosh** * The COA accepted that the Supreme Court in Ivey had to a **‘limited extent’ modified the rules of precedent** (Rare and modified exceptional circumstance)

Question 34

What are the 2 requirements for *obiter dicta* gaining binding status?

Answer 34

1. There needs to be an **instruction from the Supreme Court** to lower courts to **disregard otherwise binding precedent** and to apply a new approach 2. There needs to be **unanimous agreement** in the Supreme Court as to the effect of the obiter

Question 35

What are the advantages to binding an obiter?

Answer 35

1. allows for **conflicting approaches** to the law to be resolved **without needing to wait** for a case that allows the Supreme Court to tackle the issue in a ratio 2. Achieves **legal certainty and justice** 3. Allows common law to be **adaptable** 4. **More pragmatic** approach (sensible/reaslistic)

Question 36

What are critisms/cons of binding an obiter?

Answer 36

1. **Blurred the distinction** between the **effect of a ratio and obiter** 2. It may mean that principles of law could become binding **without the Supreme Court having heard and considered and tested** full argument on the issue 3. **Weakens the horizontal binding** effect

Question 37

What are advantages of judicial precedent?

Answer 37

1. Fairness 2. Certainty 3. Flexibility 4. Predictability 5. Efficiency 6. Consistency 7. Respect among judiciary

Question 38

What are disadvantages of judicial precedent?

Answer 38

1. Rigidity 2. Uncertain at times 3. Slow development of the law

Question 39

What is the relationship between the **Doctrine of Judicial Precedent** and the **Human Rights Act 1998**?

Answer 39

* **Section 2(1) of the HRA 1998** requires that domestic courts, including the Supreme Court, **must ‘take into account’** relevant Strasbourg jurisprudence * Although the obligation to “take into account” **does not translate into an absolute obligation to mirror** all Strasbourg cases. (**Supreme Court** particularlly has a level of discretion whether to follow Strasbourg authority)

Question 40

In what case has the obligation to follow Strasbourg authority been exceptionalised by UKSC discretion?

Answer 40

clarified in **R (Hallam) v Secretary of State for Justice [2019] UKSC 2**

Question 41

What are the 6 possible routes which might allow a judge to avoid Strasbourg authority?

Answer 41

1. **Inapplicability on the facts** - to avoid treating it as precedent in the first place 2. **Weak authority** - that the authority does not, in fact, reflect Strasbourg’s true position, or that the case law forms an **inconsistent, or incomplete picture** 3. **Horncastle doctrine** - decisions of the European Court can be departed from on those occasions where it **misunderstood, misapplied or outright failed** to consider some fundamental facet of UK law 4. **Irrelevant to outcome** - put forward by Lady Hale. Although she agrees with the minority in that the European position is clear, constant and authoritative, and that it differs from the domestic position, she nonetheless **refuses to modify that domestic position** because she feels that the **same eventual outcome** – no success for the applicant – would result 5. **Poor reasoning** - Lord Mance criticises the European Court for being incoherent and vague 6. **Strasbourg is wrong** - A final reason for departing from Strasbourg – and perhaps the most controversial one – might be that **its position is simply incorrect**