English Legal System Judicial Precedent

1. English Legal SystemJudicial Precedent

2. Judicial Precedent • Judicial Precedent : • Is a process whereby Judges follow previously decided cases where the facts are of sufficient similarity.

3. Judicial Precedent Doctrine of Judicial Precedent involves the application of the principle of stare decisis.

4. Ratio / Obiter The judgement or decision by the Judge can fall into two parts. Ratio Decidendi : Reason for the decision Obiter dictum : Said by the way

5. Ratio Decidendi Ratio Decidendi : Is the reason or the principle on which the decision on the case is based. Note : The word ratio decidendi is never used in the decision and judgment written by the court.

6. Obiter dictum Obiter dictum : Is the Judges views on how his decision could have been different, which he states by the way, and explains that a different decision could apply if the facts were different. Please note : The Obiter is not strictly binding, but is of persuasive authority in later cases.

7. Court Hierarchy S3(1) European Communities Act 1972 : Decisions of the European Court of Justice (ECJ), are binding, in matters of community law, on all English local courts. (Including the HL) All lower courts are bound by the decision of the House of Lords. The House of Lords is not bound by its own decision. The Practice statement (1966) as per Lord Gardiner

8. Court Hierarchy Court of Appeal (Civil/Criminal) Young v Bristol Aeroplane Co Ltd [1944] Court of Appeal is bound by its own previous decision unless : 1) If Its previous decisions conflict, it must decide which to follow 2) CA decision that goes against HL, must not be followed. 3) Need not follow previous decision if it was given “per incuriam”

9. Court Hierarchy Question of stare decisis, and is it the same in both the civil and criminal courts? R v Taylor [1950] CA held that in “questions involving the liberty of the subject” if a full court considered that the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision. R v Gould [1968] R v Newsome [1970]

10. Court Hierarchy The High Court : Is bound by the HL and CA, but not by its own previous decisions. The Crown Court : Crown court is bound by the higher courts decisions, but not of its own. The County Courts and Magistrates Courts decisions are not binding on any courts.

11. Avoiding precedents • Distinguishing • Over ruling • Reversing • Per Incuriam “through want of care” (a mistaken decision by the court)

12. Distinguishing Jones v Secretary of State for Social services [1972) as per Lord Reid : “It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I don’t think that they act wrongly in so doing, they are adopting the less bad of the only alternatives open to them…but this is bound to lead to uncertainty..” In short Lord Reid says its OK to distinguish

13. Distinguishing But, LJ Buckley thinks otherwise: Olympia Oil v Produce Brokers [1914] as per Buckley LJ “ I am unable to adduce any reason to show why that decision which I am about to pronounce is right..but I am bound by authority which, of course it is my duty to follow..” In short stare decisis must be applied strictly, according to LJ Buckley

14. Overruling A higher court can overrule a decision made in a earlier case by a lower court. 1) If lower court did not apply the law correctly. Anderton v Ryan [1985] overruled by HL in R v Shivpuri [1986] HL 2) The rule of law contained in the previous ratio decidendi is no longer desirable Miliangos v George Frank Ltd [1975] overuled previous rulings, that damages in the English courts have to be awarded in sterling pounds.

15. Reversing Reversing is the overturning by a higher court, of the decision of the lower court.

16. Per Incuriam A decision reached Per Incuriam is one reached by carelessness or mistake, and can be avoided. Morelle v Wakeling [1955] as per Lord Evershed MR “the only case in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on the court”

17. Per Incuriam Secretary of State for Trade and Industry v Desai (1991) as per Scott LJ “…decision involved some manifest slip orerror but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens.”

18. Can the CA avoid HL decisions? The “per incuriam” rule does not permit the CA to ignore decisions by the House of Lords. In Cassell V Broome [1972] CA Lord Denning MR, held the case of Rookes v Barnard [1964] CA to be per incuriam, because it did not follow the previous house of lords decisions. He was rebuked by the HL, and they said that the CA in fact had stated their opinion only, and “only meant that they did not agree” with the HL decision.

19. Persuasive Precedents • Privy Council Judicial committee • Lower courts decisions (ratio) • Scottish, Irish and Commonwealth courts ratio decidendis • Obiter dicta of English courts

20. Advantages/Disadvantages of precedents Advantages : 1) Certainty in the law 2) Uniformity in the law 3) Its flexible,.distinguishing, overruling etc 4) Practical in nature 5) Detailed and a wealth of information

21. Advantages/Disadvantages of precedents Disdvantages : 1) Difficulties in deciding what is the ratio decidendi 2) If its important case of point of law, it would take considerable time for the case to conclude. R v R (1991) 3) Cases can easily be distinguished 4) Far too much case law and thus complex

22. Doctrine of PrecedentLaw making potential Do the Judges make laws? Willis v Baddeley[1892] as per Lord Elsher “There is no such thing as judge made law,for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has been previously been authoritatively laid down that such law is applicable” Thus the old view was that they do not make laws.

23. Doctrine of PrecedentLaw making potential The modern view is that judges do make laws: as per Lord Radcliffe : “..there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can hehelp it?” Thus the reality is that judges are continually applying the existing rules to new fact situations and thus creating new laws.

24. Doctrine of PrecedentLaw making potential In the mid-ninteenth century the HL developed the practice that it would be bound by its own decision. London Tramways Co v London County Council [1898] The HL felt that the decisions of the highest appeal court should be final in the public interest so that there would be certainty.

25. Doctrine of PrecedentLaw making potential In 1966 the practice statement by Lord Gardiner, changed the rule that the HL were bound by their own decisions. Reasons for the change : 1) enables the HL to adapt to the changing needs. 2) enable them to pay more attention to decisions of superior courts in the commonwealth. 3) change in line with superior courts in other countries.

26. Doctrine of PrecedentLaw making potential In 1966 the practice statement by Lord Gardiner, changed the rule that the HL were bound by their own decisions. Reasons for the change : 1) enables the HL to adapt to the changing needs. 2) enable them to pay more attention to decisions of superior courts in the commonwealth. 3) change in line with superior courts in other countries.

27. Doctrine of PrecedentLaw making potential Paterson’s Survey (1982) of Nineteen Law Lords,found that at least twelve thought that law lords had a duty to develop the common law in response to changing social conditions.

28. Doctrine of PrecedentJudges making laws Herrington v British Railways Board[1972] the judges overruled Addie v Dumbreck[1929] in a case involving a child trespasser injured by the occupier, “negligently”.