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Judicial Precedent Read Elliot and Quinn page
5 to 23.
Doctrine of Stare Decisis
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
in which the judge will give not only the decision but also the
legal reasoning which lies behind it.
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:
“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
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.
Types Of Precedent.
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 judgment is known as
‘reasoning by analogy’ see handout 61.
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.
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)
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
Privy Council decisions.
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.
dissenting judgment is a judgment that disagreed with a majority
view may be used to over rule the decision of the majority.
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.
European Court of
Justice European Court Of
House of Lords
Court Of Appeal
Bench Divisional Court
Courts And Precedent
Courts Bound By It
Courts It must Follow
All Courts None
House Of Lords
All Courts In English System
Court Of Appeal
Itself, Divisional Courts European Court
other lower courts. House Of Lords
Itself, High Court and
all European Court
lower courts. House Of Lords
County Court EC
Magistrates’ Court H of L
Court of Appeal
Possibly Magistrates Court All other Courts
Operation of the Doctrine of Precedent
Every court is bound by a court above it in the
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
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.
over ruling, reversing.
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
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
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.
Stephenson wide ratio and a
rapid, extensive subsequent development of the law of
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
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.
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
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
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
Court of Appeal and the Doctrine Of
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:
Where previous decisions of the court of appeal conflict.
Where a decision which has not been expressly over-ruled
cannot stand with a subsequent decision of the Lords.
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
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.
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
He laid down general
rules as to when a duty would arise in future cases.
“ You must take reasonable care to avoid acts or
omissions which you would reasonably foresee would be likely to
injure your neighbours.”
“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’.
McLoughlin v O’Brian (1983) it was applied to ‘Nervous
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.
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.
premiums might go through the roof.
Would the amount of
litigation flood the courts?
stop offering risky services?
Industries v Dickman (1990) the Lords laid down the
criteria for deciding whether a claim should be allowed in
Was the damage reasonably foreseeable?
Was the relationship between the defendant and the
plaintiff significantly proximate?
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:
There is a relevant precedent based on the ‘neighbours’
No issues of public policy make the liability
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.
R v Woolin July
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
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
Prior to Nedrick the
law on intention had developed significantly.
R v Hyam (1975)
intention can be equated with
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
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.
Provides certainty in law.
Judges have clear cases to follow.
Lower courts follow higher courts.
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.
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
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.
Saves time – avoids unnecessary litigation.
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.
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.
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.
It is difficult to
distinguish between ratio and obiter e.g. Donoghue v
Too much distinguishing or use of Practice Statement