Judicial precedent

Question 1

What does judicial precedent refer to?

Answer 1

Judicial precedent refers to the source of law where past decisions of the judges create law for future judges to follow. ( Also known as case law)

It means that courts must follow decisions of the courts above. Also appeal courts will usually follow their own previous decisions.

Question 2

What is one element of Judicial precedent?

Answer 2

Stare decisis- Stand by what has been decided. ( Once an issue has been decided by a court, other courts should not change it)

Where the point of law in the previous case and the present case are the same, the court hearing the present case should follow the decision in the previous case. This concept of treating similar cases in the same way promotes fairness and provides certainty in the law.

Question 3

What do ‘‘like cases are decided alike.” mean? Give a case example.

Answer 3

It means when a judge decides a case that is similar to the facts of the previous case, he should follow the decision taken by the judge in that previous case.

Case example:
Donoghue v Stevenson- Lord Atkin decided that the manufacturer of ginger beer owed a duty of care in negligence to a consumer who drank the product and found the remains of a decomposed snail in his bottle and was ill as a result of it.

Few years later

In Grant v Australian Knitting Mills- The purchaser of a pair of underpants ended up with severe dermatitis from sulphur compounds.

As the material facts in the two cases were similar, the Privy council followed the principle established in Donoghue v Stevenson and held that the manufacturers of the underpants owed a duty of care to the consumer.

Question 4

What is the judgement?

Answer 4

When a judge makes a decision in case, he or she sets out their reasoning in a judgement. Judgements usually contain an outline of the facts of the case, the reason for the decision, other things said and the decision itself.

The legal reason for the decision is the part that can set a precedent that other courts must follow. This part of the judgement is known as the ratio decidendi.

Obiter dicta- Persuasive precedent
Ratio decidendi- Binding precedent

Question 5

What is ratio decidendi?

Answer 5

Means the reason for deciding.
For example the ratio decidendi in Donoghue v Stevenson was that a person owes a duty of care to those that it is reasonably foreseeable could be affected by his act or omission.

The ratio decidendi of a case is the part that forms binding precedent which must be followed.

Question 6

What is a original precedent?

Answer 6

If a point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow. It is an original precedent. As there are no past cases for the judge to base his decision on he is likely to look at cases which are the closest in principle and he may decide to use
similar rules. This way of arriving at a judgement is called reasoning by analogy.

Question 7

What are the different types of persuasive precedent?

Answer 7

• Decisions of lower courts
• Privy council decisions
• Commonwealth courts
• Obiter dicta
• Dissenting judgements

Question 8

What does is mean by decisions of lower courts?

Answer 8

A court may be persuaded by the decision of a lower court.

E.g. In R v R (1991), the House of Lords followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife.

Question 9

What does it mean by Privy council decisions?

Answer 9

This court is not part of the court hierarchy in England and
Wales therefore its decisions are not binding. However, as many of its judges are also part of the Supreme Court, its judgments are often followed.

E.g. the decision made by the Privy Council in the case of Re Wagon Mound (1961) in relation to remoteness of damage in tort law has since been followed by the courts in England

Question 10

What does it mean by commonwealth courts?

Answer 10

Particularly so where the other country uses the same ideas of common law as in our system. This applies to Commonwealth countries such as New Zealand, Canada and Australia. Courts often refer to precedent from these jurisdictions.

Question 11

What does it mean by obiter dicta?

Answer 11

“Other things said” in the judgment of the court that are not binding but can be persuasive.

E.g. In the case of R v Gotts (1992) the court relied on statements made obiter in the earlier case of R v Howe (1987) in relation to whether or not the defence of duress was available to a defendant charged with attempted murder.

Question 12

What does it mean by dissenting judgement?

Answer 12

A judgment given by a judge who disagrees with the reasoning of the majority of judges in the case.

Question 13

What are the options when deciding a case?

Answer 13

• Follow
• Overrule
• Reverse
• Distinguish

Question 14

What happens if the judge follows?
Provide case example

Answer 14

If the facts are similar enough to the previous case, the law will be applied in the same way to reach a decision

Case- In Robison v chief constable of Yorkshire police the court followed the decision in Hill v Chief Constable of West Yorkshire Police.

Question 15

What happens if a judge overrules?
Provide case example

Answer 15

Overruling means that the previous case was wrong, but it does not alter the decision. It involves changing the leading case in that area of law. It can only be done by a court with the authority to overrule. It is a way of correcting the mistakes of the lower courts.

This is where a higher court, hearing a different and later case, overturns a principle that has been laid down by a lower court in an earlier case. The House of Lords can also overrule its own previous decisions, and the Court of Appeal can overrule a decision if there are conflicting cases.

Case example - The House of Lords overruled Anderton v Ryan in R v Shivpuri because they had made a mistake interpreting the Criminal Attempts Act

Question 16

What does it mean when a judge reverses?
Provide case example

Answer 16

This is where a higher court overturns the decision of a lower court in the same case (i.e. when it is on appeal). This can only be carried out by a court with enough authority.

Case- In R v Kingston, the House of Lords reversed a Court of Appeal (Criminal Division) decision that said a person could claim involuntary intoxication as a defence even if they had formed the mens rea of the crime (i.e. D argued that the intoxicant removed his inhibitions/control over resisting the urges).

Question 17

What does it mean when a judge distinguishes?
Provide a case example

Answer 17

A legal case will only be binding to a later case if the facts are sufficiently similar. Distinguishing occurs when a Judges wants to avoid applying the previous case and demonstrates that the facts of the two cases are different in some important aspect. If he can do this, there is no obligation to apply the precedent. Although, sometimes the distinguishing of a case is uncontroversial, distinguishing is rather artificial. Judges overuse it because they are trying to avoid a precedent that is seen as problematic. Any judge can distinguish a case on minute details and the differences are often seen as illogical (and in no practical terms a difference at all).

In R v Smith (1959), they distinguished the case of R v Jordan (1956). In Jordan, the victim was stabbed and received “palpably wrong” medical treatment (given an injection to which he was allergic, causing side effects that led to pneumonia). The perpetrator of the wound was not liable for the death because he received bad medical treatment and this was the direct and immediate cause of death. In Smith, the victim was also stabbed, and on his way to the army hospital he was dropped twice and then given “thoroughly bad treatment” (his wound went unnoticed until it was too late). The case was distinguished on the grounds that in Smith, the original wound was still an operating and substantial cause of death, whereas in Jordan, it had healed.

Question 18

What is the hierarchy of the civil courts?

Answer 18

Supreme court - House of Lords
Court of appeal- civil division
Divisional courts- KBD, family, chancery
High court
County court

Question 19

What is the hierarchy of the criminal court?

Answer 19

Supreme court
Court of appeal- criminal division
Kings bench divisional court
Crown court
Magistrates

Question 20

Who is the Supreme court bound by and who does it have to follow?

Answer 20

Courts bound by it- all other courts in the English legal system.

-Most senior national court. It replaced the
House of Lords in 2009.

Must follow
-European Court.
-Not bound by its own past decisions nor decisions of House of Lords but will generally follow them.

Question 21

Who is the Court of appeal bound by and who does it have to follow?

Answer 21

Courts bound by it- itself (with some exceptions); Divisional Courts; all
other lower courts.

-Must follow
European Court & Supreme Court.

Young v Bristol Aeroplane Co Ltd (1944) - The Court of Appeal (Civil Division) held that it was bound by its own previous decisions subject to the following three exceptions:

Where there are conflicting decisions in past CoA cases, the Court can choose which one it will follow and which one it will reject.

Where there is a decision of the Supreme Court/House of Lords which effectively overrules a CoA decision, the CoA must follow the decision of the Supreme Court/House of Lords

Where the decision was made per incuriam, i.e. carelessly or by mistake because a relevant Act of Parliament or other regulation was not considered by the Court

Question 22

Who is the Divisional court bound by and who does it have to follow?

Answer 22

Courts bound by it- itself (with some exceptions); High Court; all other
lower courts.

-Must follow
European Court, Supreme Court & Court
of Appeal.

Question 23

Who is the High court bound by and who does it have to follow?

Answer 23

Courts bound by it- County Court, Magistrates Court

-Must follow
European Court, Supreme Court, Court of Appeal, Divisional Courts.

-High Court judges don’t have to follow each other’s decisions but usually do

Question 24

Who is the Crown court bound by and who does it have to follow

Answer 24

Courts bound by it- possibly the Magistrates’ Court – ruling on a point of law by Crown Court judge technically binds the Magistrates’ Court however such rulings are rarely recorded in law reports and are therefore of little practical effect.

-Must follow
All higher courts

Question 25

Who is the County Court & Magistrates Court bound by and who does it have to follow?

Answer 25

Courts bound by it- Do not create precedent therefore do not bind any other courts

• Must follow
  All higher courts

Question 26

What was the Supreme courts decisions?

Answer 26

In London Street Tramways it was decided that decisions of the House of Lords (now supreme court) were binding on itself.

However in 1966 the House of Lords issued that the Practice statement, which provided that it can depart from its previous decisions when it is ‘‘right to do so’’

Question 27

What is the Practice statement 1966 and what is it used for

Answer 27

The introduction of the Practice Statement ensured that flexibility was restored in the development of the law.

House of Lords would treat former decisions of the House as normally binding but that it would depart from a previous decision when it appeared

Question 28

What is the London Street Tramways v London County Council case about?

Answer 28

The House of lords decided that they should be bound by their past decision. This is because certainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision.

They will depart from us where the past decision had been made per incuriam, i.e. “in error”. This error only referred to a decision that was made without considering the effect of a relevant statute.

Question 29

What was the first use of the practice statement?

Answer 29

The first use came in Conway v Rimmer in which the House of Lords overruled its previous in Duncan v Cammal, Laid and Co on disclosure of documents.

Question 30

When was the Practice Statement used in criminal law?

Answer 30

The first use of the Practice Statement in criminal law did not arrive until 1986 when the House of Lords in R v Shivpuri overruled their decision in Anderton v Ryan on criminal attempts.

Question 31

Explain the link between the Court of Appeal and judicial precedent?

Answer 31

-Decisions of courts above the Court of Appeal binding on both divisions of the CoA.

-CoA and its own decisions - the decisions by one division of the Court of Appeal do not bind the other division. Within each division, decisions are normally binding, especially for the Civil Division.

Question 32

How does the case Young v Bristol Aeroplane Co ltd link in with the Court of Appeal?

Answer 32

Young v Bristol Aeroplane Co Ltd (1944) - The Court of Appeal (Civil Division) held that it
was bound by its own previous decisions subject to the following three exceptions:

1) Where there are conflicting decisions in past CoA cases, the Court can choose which one it will follow and which one it will reject.

2) Where there is a decision of the Supreme Court/House of Lords which effectively
overrules a CoA decision, the CoA must follow the decision of the Supreme Court/House of Lords

3) Where the decision was made per incuriam, i.e. carelessly or by mistake because a
relevant Act of Parliament or other regulation was not considered by the Court

Question 33

Why is certainty an advantage of judicial precedent?

Answer 33

One advantage of judicial precedent is that it creates certainty in the law because like cases are decided alike. This is important because it allows lawyers to advise their clients on likely outcomes of cases. Furthermore the importance of certainty is empathised by the 1966 Practice Statement. The agrees with the rule of law which states that the law should be ascertainable.

Question 34

Why is judicial precedent allowing flexibility an advantage?

Answer 34

One strength of judicial precedent also allows flexibility, which means the law can keep up to date with social change. For a sample the 1966 Practice Statement allows the Supreme court to change its mind when its right to do so such as when the House of Lords overruled Caldwell recklessness in R v R and G to make the law fairer. Courts can also distinguish a case on its particular facts to avoid following a precedent giving them some freedom to develop the law and avoid injustice from too rigid an approach.

Question 35

Why is just and fair an advantage of judicial precedent?

Answer 35

One advantage of judicial precedent is that it is just and fair that like cases are decided alike, as this means that everyone should be treated in the same way. This reduces the amount of cases which reach court as if the likely outcome is known, the parties can reach a settlement freeing up the courts to deal with genuine disputes of fact of law. This accords with the rule of law and creates public confidence in the legal system

Question 36

Why is complex an disadvantage of judicial precedent ?

Answer 36

The system of precedent is hugely complex. With over half a million reported cases, it can be hard to find out what the law is and judgments are not always clear. For a example in Central Asbestos Co v Dodd the court of appeal could not identify the ratio decidendi in a House of Lords decision. This runs contrary to the rule of law’s requirement that the law should be ascertainable.

Question 37

Why is undemocratic a disadvantage of judicial precedent?

Answer 37

One disadvantage of judicial precedent is that the system allows for judges to make law. This is undemocratic as judges are not elected. For example judges created new law on whether it was possible to claim for loss of TV signal in Hunter v Canary Wharf. This is contrary to the Separation of Powers which states that the role of judges is to interpret the law not to make it.

Question 38

Why is rigidity a disadvantage of judicial precedent?

Answer 38

One disadvantage of judicial precedent is that it can lead to rigidity because the lower courts must follow decisions of the higher courts and the court of appeal and supreme court must usually follow their own past decisions. This a problem because it means the law may not keep up with social change and that poor decisions may not be altered quickly. This can be particularly problematic as very few cases reach the supreme court which can overrule lower courts due to the expenses involved so the law may not develop properly.