Judicial Precedent

Judicial Precedent Read Elliot and Quinn page 5 to 23.

1) Doctrine of Stare Decisis

The English system of precedent is based on the Latin maxim: “Stare Decisis et Non
Queita Movere”, stand by what has been decided and do not unsettle the established. The
idea is that by following precedents, which are the previous decisions of judges, fairness
and certainty will be provided.
Precedents can only operate if the legal reasons for past decisions are known. Therefore,
at the end of a case (civil) there will be a judgement in which the judge will give not only
the decision but also the legal reasoning which lies behind it.
2) Ratio Decidendi
This is the legal reason or principal which lays behind the decision and it is this ratio
which will provide the precedent for judges to follow in future cases. The remainder of
the judgement is known as the:
3) Obiter Dicta
“Other things said by the way.”
These comments do not form part of the ration (reasoning) and are therefore not part of
the precedent. For instance, sometimes a judge will speculate on what his decision would
have been if the material facts had been different.
Sometimes, part of the Obiter Dicta may be put forward in future cases and although it
will not form a binding precedent it may help to ‘persuade’ a later judge towards a
particular view in the law.
N.B. It is sometimes difficult to distinguish between ratio and any headings as the
judgement is usually in continuous form without any headings specifying what is ratio
and what is not.
There may also be a number of speeches at the end of a case, depending on the number
of judges sitting and how they have individually arrived at their judgement. This can
mean that there is more than one ratio.
Different Types Of Precedent.
Original Precedent
If a point of law has never been decided before, then whatever the judge decides will
form a new precedent for later cases to follow. Donaghue v Stephenson (1932) snail in a
bottle case – negligence. As there are no past cases for the judge to base his decision on,
he is likely to look at cases that are closest in principal and he may decide to use similar
reasoning. This way of arriving at a judgement is known as ‘reasoning by analogy’ see
handout 61.
Binding Precedent.
This is a precedent from an earlier case, which must be followed even if the judge in the
later case does not agree with the legal reasoning. A binding precedent is only created
when the facts of the second case are sufficiently similar to the original case and the
decisions was made by a court which is senior too, or in some cases the same level as,
the court hearing the later case.
Persuasive Precedent.
These are not binding on the court, however a judge may consider such a precedent and
decide that it is the correct principal to follow. On other words, he is persuaded that he
should follow it. They can come from 1) Courts lower in the hierarchy e.g. R v R (1991)
In this case the law lords followed the same reasoning as the Court of Appeal in deciding
that a man could be guilty of raping his wife.
2) Privy Council decisions.
4) Obiter Dicta statements. This is particularly true of Obiter in the House of Lords e.g.
R v Howe (1987) the Lords ruled that duress could not be a defence for a charge of
murder. So the Lords also followed Obiter that duress would not be available as an
offence for someone charged with attempted murder.
But in 1992 R v Gotts , the Court of Appeal used this Obiter statement as a persuasive
precedent to rule out a defence of duress in a charge of attempted murder.
A dissenting judgement is a judgement that disagreed with a majority view may be used
to over rule the decision of the majority.
Decisions of court in other countries …especially where the same idea of common law
are used, commonwealth countries e.g. Australia McLoughin v O’Brian (1983)
Nervous Shock in Negligence.

Civil Cases. Criminal Cases

European Court of Justice European Court Of Justice
House of Lords House Of Lords
Court of Appeal Court Of Appeal
Divisional Courts Queen’s Bench Divisional Court
High Courts Crown Court
County Court Magistrates Courts.
Magistrates’ Court

Courts And Precedent Courts Bound By It Courts It must Follow

European All Courts None

House Of Lords All Courts In English System European Court

Court Of Appeal Itself, Divisional Courts European Court

And other lower courts. House Of Lords

Divisional Itself, High Court and all European Court

Other lower courts. House Of Lords
Court Of Appeal

High Court County Court EC

Magistrates’ Court H of L
Court of Appeal
Divisional Courts

Crown Court Possibly Magistrates Court All other Courts

Above it.
 Operation of the Doctrine of Precedent
1. Every court is bound by a court above it in the hierarchy.
2. In general, appellate (appeal) courts are bound by their own private decisions. (But
there are exceptions to this rule, especially for the House of Lords since the 1966
Practice Statement.)
These basic rules are essential if the doctrine of precedent is to operate at all. The other
thing, which is essential, is that lower courts know all the legal reasoning behind
decisions of the higher courts. They can only do this if those reasons are properly
reported. All decisions from the High Court upwards are properly reported through the
system of Law Reporting.
Distinguishing; over ruling, reversing.
Distinguishing.
If a judge decides that the material facts of the case in front of him are sufficiently
different from the material facts of the case containing the precedent then he is not bound
by the precedent e.g. Balfour v Balfour (1919) and Merritt v Merritt (1990)
Both the cases involved a wife making a claim against her husband for breach of
contract. In Balfour it was decided that the claim could not succeed because there was
no intention to create legal relations, there was merely a domestic arrangement between
husband and wife so there was no contract. In Merritt the court distinguished the case
from Balfour because although the parties were husband and wife, the agreement was
made parties were husband and wife, the agreement was made after they had separated.
Further more, it was in writing, so it was a legally enforceable contract.
Sometimes ratios are wide – applicable to many further cases.
Some ratios are narrow – maybe not applicable to any.
Wide ratios have less material facts to consider than narrow ratios. Wide ratios are more
difficult to distinguish.
Donoghue v Stephenson wide ratio and a rapid, extensive subsequent development of
the law of negligence.
Over-ruling.
This is where a court in a later case states that the legal rule decided in an earlier case
has been strongly decided. This would normally happen when a court higher in the
hierarchy over-rules a decision made by a lower court in a previous case.
However both the ECJ and the House Of Lords can over-rule their own decisions made
in previous cases.
Reversing.
This is where a court higher up the hierarchy over turns the decision of a lower court in
the same case. E.g. the Court of Appeal reverses a decision of the High Court.
Following.
Where a higher court agrees with the decision of the later court.
House of Lords and Judicial Precedent.
Until 1898 the House Of Lords had the power to overrule it’s own previous decisions.
However in 1898 London Street Tramways v London County Council.
The lords held that certainty in the law was more important than the possibility of
individual hardship being caused by having to follow a past decision. Thus from 1898 the
Lords regarded itself as bound by it’s own previous decisions unless they were made ‘per
incuriam’, in error, which is where the Lords have ignored a statute.
However this decision became increasingly unsatisfactory as the law could not alter to
meet changing social conditions, nor could it alter to change wrong decisions expect per
incuriam ones, except by passing a new act of Parliament DPP v Smith (1961). The
Lords had ruled that intention could be judged objectively. This was out of line with
previous common law and held to be wrong however it took a statute to change this
ruling:1967 Criminal Justice Act.
Because of the problems being caused by the House Of Lords voluntary abdication of it’s
power to change it’s own decisions and particularly because of criticism caused by
Smith. In 1966 Lord Gardener the Lord Chancellor issued a Practice Statement.
Initially the Lords were reluctant to use this new power, but since the 1970’s it has been
much more willing to apply it in both criminal and civil law.
Economic loss in the law of Negligence.
This was an important decision because Anns’s had led to considerable complexity and
uncertainty in the law. In the criminal law where the liberty and reputation of the subject
is at stake the Lords has also been willing to over-rule itself. In one case only a year
after the previous decision. – Shivpuri (1986) over-ruled Anderton v Ryan (1985)

Court of Appeal and the Doctrine Of Precedent.

Civil Division.
The Court of Appeal is bound to follow it’s own previous decisions. There are only three
exceptions to this rule and these exceptions were identified in Young v Bristol Aeroplane
Company (1944)
The case involved the workman’s appeal against a High Court decision, barring him
from claiming damages after he had already accepted compensation under the 1925
Workman’s Act. The appeal judges in deciding that they could not hold up the appeal
emphasized the only circumstances under which the appeal court could overturn one of
it’s own previous decisions. These are:
a) Where previous decisions of the court of appeal conflict.
b) Where a decision which has not been expressly over-ruled cannot stand with a
subsequent decision of the Lords.
c) Where a decision has been made ‘per incuriam’.
However following the 1966 Practice Statement some appeal court judges and in
particular Lord Denning felt that they too should have made scope to over-rule their own
decisions.
The Court of Appeal and the Young Guidelines.

Padberry v Peak had been wrongly decided ‘per incuriam’ because of ignorance of a
relevant statute. The Court of Appeal explained that they needed to do this because 1) the
case was unlikely to be appealed to the House Of Lords for cost reasons so it couldn’t be
over-ruled there and 2) because it involved the common problem of divorce settlements it
would be likely to affect lots of other couples in the future.
The Criminal Division of the Court of Appeal.
This has more latitude to deviate from it’s own pervious decisions because life and
liberty are at stake.
Donoghue v Stephenson – Civil Law
Until 1932 a previous precedent had to be found to establish a duty of care in a
particular case. However, in Donoghue, Lord Atkin said:
“There must be and is some general conception of relations giving rise to a duty of care
of which particular cases found in the books are instances.”
He laid down general rules as to when a duty would arise in future cases.
1) “ You must take reasonable care to avoid acts or omissions which you would
reasonably foresee would be likely to injure your neighbours.”
2) “Who is my neighbour?” persons who are so closely and directly affected by my act
that I ought to have them in my contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question.
This decision based on principle as it was derives from a wide ratio and was in theory,
applicable therefore in a whole range of new situations.
1932 – 1978: little attempt was made by the courts to extend the scope of negligence.
Courts were careful to find precedents.
Then in 1978 came the decision in Anns v Merton Borough Council. This made local
authorities liable for damages arising from negligent use (or non-use) of their statutory
powers. This like Donoghue was another decision based on principle and, like
Donoghue, left the gates wide open to further developments in the laws.
In Junior Books v Veitch Co Ltd (1983) the principle in Ann’s was applied for the first
time to purely ‘economic loss’.
And in McLoughlin v O’Brian (1983) it was applied to ‘Nervous Shock’.
This ‘swelling of the Ann’s principle led to increasing concern on the part of the law
lords and a lot of ‘distinguishing’ to avoid applying the principle in Ann’s.
Finally in Murphy 1990 the Lords decided to over-rule Ann’s (invoking the 1966
Practice Statement.) in this case the Lords decided that plaintiffs would not be able to
claim for loss which is purely ‘economic’. The problem was that if people could claim for
economic loss, all kinds of businesses and government agencies would be open to claims
that might bankrupt them.
Also, insurance premiums might go through the roof.
Would the amount of litigation flood the courts?
Would professionals stop offering risky services?
In Caparo Industries v Dickman (1990) the Lords laid down the criteria for deciding
whether a claim should be allowed in negligence,
1) Was the damage reasonably foreseeable?
2) Was the relationship between the defendant and the plaintiff significantly proximate?
3) Is it just and reasonable to impose a duty of care?
In practice, it seems to mean that in personal injury and damage to property cases, a
duty of care will arise where:
1) There is a relevant precedent based on the ‘neighbours’ principle.
2) No issues of public policy make the liability undesirable.
So, the development of the law negligence looks like:
Pepper v Hart was upheld in the Three Rivers v Bank of England . This case involved
interpretation of legislation passed to implement EU. Directive Act was not ambiguous,
Hansard could throw light on whether certain duties were intended to be imposed on
council, this not being apparent from the Act. Held, therefore Hansard could be
consulted even where there was no ambiguity in order to discover general legislative
purpose i.e. give affect to EU law.
Precedent and the development of the criminal law. The meaning of intention.
Intention of murder,
R v Woolin July 1998.
The House of Lords over-ruled the Court of Appeal who had decided that intention could
amount to a state of mind less than ‘foresight of a virtual certainty.’
If there was evidence apart from the accused actions. The Lords reaffirmed that the
Court of Appeal’s own decision in R v Nedrick (1986) represented the law and the Court
of Appeal shouldn’t have extended it.
Prior to Nedrick the law on intention had developed significantly.
R v Hyam (1975) intention can be equated with foresight.
Over-ruled in 1985 in Moloney by Lords.
Intention can only be found where there is evidence that the accused foresaw the result
as a natural consequence.
This developed in Hancock 1986 - the natural consequence – must be judged against
probability.
Developed in Nedrick – “the natural consequence must amount to a virtual certainty.
(Which the defendant foresaw as a virtual certainty) for the jury to consider it as
evidence of intention.
1n 1997 the Court of Appeal in Woolin had allowed a trial judges direction as the
meaning of intention to include the phrase “substantial risk.”
The Lords reversed the Court of Appeal’s ruling, referring back to Moloney, Hancock
and the model direction in Nedrick – the Court of Appeal, in using the phrase substantial
risk had blurred the dividing line between murder and manslaughter by blurring the
distinction between intention and recklessness.
Precedent advantages and disadvantages.
1) Provides certainty in law.
2) Judges have clear cases to follow.
3) Lower courts follow higher courts.
4) It also leads to an orderly development of the law. Only the Lords can overrule it’s
previous decisions and the hierarchy of the courts ensures that lower courts follow
higher courts.
5) Case law of real situations – viable statute law and therefore rule and principles are
derived from everyday life. This means that it should work effectively and be
intelligible. Where unwelcome developments take place e.g. Negligence over Ann’s –
the Lords can correct the position using the 1966 Practice Statement.
6) The law can develop. There is flexibility especially since 1966. Look at the law on
intention has changed since 1970, but also when Lords feel that change is leading to
uncertainty again, as in Woolin: 1998 it can use it’s power to reinforce the rule –
Nedrick 1986.
7) Saves time – avoids unnecessary litigation.
 Disadvantages.
1) There are so many cases that it is hard for judges to find relevant cases and the
reasoning may not be clear.
2) Case law can only change if a real case is brought. This requires someone to have the
money (or the access to legal aid) to bring such a case. To take a case to the Lords is
highly expensive.
3) Bad decisions are perpetuated since lower courts must follow higher courts (e.g.
Anns)
Very few cases get to the Lords which is the only court which can overrule one of it’s
own previous decisions. Not until 1991 (n R v R) was rape in marriage accepted as a
crime.
4) Restricts the development of the law. It leads to distinguishing and hair splitting
decisions which rules the law unnecessarily complex e.g. the law on automatism and
voluntary intoxication which has led to some diabetics having to use the defence of
insanity to escape a conviction if their trance like state was caused by lack of insulin,
whilst if their state was caused by failure to eat after taking insulin they can use the
defence of automatism. The law on insanity is still based on the McLoughlin rules
1843.
5) It is difficult to distinguish between ratio and obiter e.g. Donoghue v Stephenson.
6) Too much distinguishing or use of Practice Statement damages certainty.