Judicial Precedent Essay Research Paper ESSAY a

Judicial Precedent Essay, Research Paper

ESSAY: a) Explain and illustrate the operation of the doctrine of judicial precedent.

b) How far is it true to say judges are bound by decisions in earlier cases?


Judicial precedent is where the past decisions of the judges create law for future judges to follow. English precedent is based on the Latin, stare decisis, meaning stand by what has been said in the past. This allows the rules system to be consistent: like cases treated alike, and it is just, as people can decide on a course of conduct knowing what the legal consequences will be.

Judicial Precedent can only operate if the legal reasons for past decisions are known, therefore, at the end of the case there will be a judgement. This will contain the precise words of the judge and follow a Law Report, which consists of full accounts of cases that are considered important. It will give an account of the facts of the case and a summary of the decision. The principles of law that the judge used to make his decision are the important part of the judgement, and are known as ratio decidendi, or ‘the reason for deciding’. This is what creates a precedent for judges to follow in future cases. This is identified not by the judge that makes the decision, but by lawyers looking at it afterwards, they may therefore have different views on it. The remainder of the judgement is called obiter dicta and in future cases, judges do not have to follow it. These are other things the judge said, such as the reasoning and explanation of why he made the decision. It may also contain a hypothetical situation, what his decision would have been if the facts of the case had been different, and the legal reasoning may be considered in future cases. If a new event that hasn’t been decided before comes to the court (original precedent), it is likely that the judge will look at cases which are close in principle and decide to use similar rules. This idea of creating new law by analogy can be seen in Hunter v Canary Wharf (1995). The interference with the reception on Hunter’s television because of Canary Wharf Tower having been built, was likened to the case of Bland v Molselely (1661), in respect to the loss of a view. The two things were said to be a matter of “delight” and not “necessity” so could not come before the courts.

In England and Wales, the courts have a very rigid doctrine of judicial precedent, which has the effect that every court is bound to follow any decision made by a higher court and that appellate courts are bound by their own decisions. Decisions made in the European Court of Justice bind all other courts since 1973 and can overrule its own decisions. Decisions made in the House of Lords bind all lower courts, especially Court of Appeal, and, since 1966 when it issued a practise statement, can overrule past decisions. This is clearly seen in DPP. NI v Lynch when the House of Lords said that duress could be a defence to a charge of murder, and in R v Howe they said it could not. The Court of Appeal has two divisions, which are both bound by the higher courts but not each other. Each single division is bound by its own previous decisions. Both have the Young v Bristol Aeroplane Exceptions however. Divisional Courts are bound by higher courts and bind lower courts. They are generally binding on themselves, but with the Young v Bristol Aeroplane Exceptions. The High Court is bound by higher courts, but not themselves, and all courts bind Inferior Courts.


If one line of authority is clearly binding on the court, then the judges have no choice but to follow it, even if they do not agree with the legal principle. A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court senior to the court hearing the later case. Persuasive precedent however is not binding, but the judge may consider it and decide that it is a correct precedent. Persuasive precedent can come from courts lower in the hierarchy, as seen in R v R (1991), where the House of Lords agreed and followed the same reasoning as the Court of Appeal. Decisions of the Judicial Committee of the Privy Council, and statements made obiter dicta. Where a case has been decided by a majority of judges, there may be some that don’t agree on what the law is, this is known as a dissenting judgement. In Candler v Crane, Christmas and Co., Lord Denning gave a dissenting judgement on the case, but the other judges didn’t agree with him. In 1964 however, The House of Lords decided he had been right, in the case of Hedley Byrne v Heller and Partners. The dissenting judgement persuaded them to follow it. Decisions from foreign courts may also have persuasive precedents.

There are also other methods used by judges to prevent them from following precedents: Distinguishing is when a judge finds the material facts of the case he is deciding are sufficiently different for him to draw a distinction between the present case and previous precedent. Two cases demonstrating this process are Balfour v Balfour (1919) and Merritt v Merritt (1971). The first case was successful but the second was not, as although both involved a wife making a claim against her husband for breach of contract, there was enough different facts to distinguish them. Overruling is where a court in a later case states that the legal rule decided in an earlier case is wrong. It is used to prevent an injustice if the judges feel the first decision was wrong. This is illustrated in Pepper v Hart (1993) when the House of Lords ruled that Hansard could be consulted in statutory interpretation. This overrules the earlier decision in Davis v Johnson (1979). The last method is Reversing, and is when a higher court overturns the decision in a lower Court of Appeal, in the same case. This is again illustrated in Davis v Johnson (1979).

Because of distinguishing, overruling, reversing and persuasive precedents, it is true to say that although judges are bound rigidly to follow decisions made in earlier cases, they do have ways of avoiding it if certain facts comply.


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