Judicial Precedent A Practice Of The Courts Law Essay

Judicial precedent: Where past decisions of judges are followed in future cases when the facts of the cases are similar. Once a judge decides a legal principle, it is required that is used in future legal cases with similar issues or facts. This is also known as case law or common law which has developed by broadening down from precedent to precedent.

Therefore the legal definition of Judicial precedent can be stated as a courts judgment quoted as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle established in its judgement. It refers to the way in which the law is made and amended through the decisions of judges. Thus, judicial precedent is based on the judges judgement, hierarchy of courts and a good system of law reporting judges.

The judicial precedent’s doctrine is based on the stare decisis principle – to stand upon decisions and by which precedents are authoritative and binding and must be followed. In practice, this means that lower courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides balance and certainty in the law.

A precedent is always based upon the two factors – the ratio decidendi which means a reason for the decision and obiter dictum which means something said by the way and also the decisions made in the previous relevant cases.

The ratio decidendi of a case is the important part of establishing precedents that binds inferior courts in the hierarchy. When a judge makes his judgement in a case, he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and reaches at a decision, for which he gives the reason (ratio decidendi). Whereas obiter dictum is a decision given by a judge that has only incidental bearing on the case in question and is therefore not binding in later cases. The decision of the judge may vary according to the facts of the case and is not strictly relevant to the matter in the issue in the original case.

The ratio decidendi is the binding part of a judicial decision whereas an obiter dictum isn’t. Though, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.

Even if any difficulty arises, the judge will give reasons for his decision, however he will not always tell what the ratio decidendi of case is, and it is then up to a later judge to figure out (elicit) the ratio of the case. However, there may be disagreement over what the ratio is and there may be more than one ratio. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision however; when judicial precedent is used, the judge follows or takes the reference of a decision made in a similar past cases that has already been judged upon and he is ruling the same way using the other case as a guideline. Whereas whilst setting judicial precedent the judge renders a decision in a case of a type that had never been tried, or ruled upon in the past, which is completely new, and that his verdict would set the ‘precedent’ by which all future cases might be judged. Judges, by the way, are not always required to follow precedent in making rulings.

Therefore law reporting, hierarchy of courts and a method of distinguishing between obiter dicta & ratio decidendi are considered to be the key features of judicial precedent.

The general rule of the precedent is that all courts are bound to follow decisions made by their superior courts and appellate courts are usually bound by their own previous decisions.

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Any decision made by a superior court is utterly binding on subsequent inferior courts. However, certain of the superior courts consider themselves as bound by their own decisions whilst others don’t.

Until 1966 The House of Lords was bound by its own previous decisions when Lord Gardiner LC announced a change of practice. The Practice Statement [1966] 1 WLR 1234 stated that even though the House of Lords would treat its decisions as normally binding, it would move off from these when it appeared right to do so. This power has been used carefully.

A decision of the House of Lords binds all lower courts but does not regard itself as strictly bound by its previous decisions, for example, in Murphy v Brentwood District Council (1990) the House overruled its earlier decision in Anns v London Borough of Merton (1978) on the issue of a local authority’s liability in negligence to prospect purchasers of property.

The Court of Appeal is bound by decisions of the House of Lords although it considers them to be wrong. However in Young v Bristol Aeroplane Co Ltd [1944] KB 718, the Court of Appeal held that it was bound by its own previous decisions subject to the following three exceptions: i. If there is conflict between own previous decisions, the Court of Appeal must decide which is to be followed and which is to be rejected.

ii. The Court of Appeal must not follow its own decision which cannot stand with a decision of the House of Lords even if its decision hasn’t been expressly overruled by the House of Lords.

iii. The Court of Appeal need not to follow its own decision if satisfied that it was given per incuriam (literally, by carelessness or mistake).

The High Court and the county courts are bound by the decisions of the court of appeal.

Principally there is no difference in the application of stare decisis in the civil and criminal divisions of the Court of Appeal. In practice, in addition to the Young exceptions, because a person’s liberty may be at stake, precedent is not followed as strictly in the criminal division however judges tend to follow the decisions of the high court for the sake of certainty. For example R v Taylor [1950] 2 KB 368.

The High Court is bound by the decisions of Court of Appeal and the House of Lords however it is not bound by other High Court decisions. The county courts are bound by the decisions of individual high courts. House of Lords and the Court of Appeal binds Divisional Court and normally follows a previous decision of another Divisional Court but if they believe that the previous decision was wrong, they may depart. For eg. R v Greater Manchester Coroner, ex parte Tal [1985] QB 67.

The Crown Court judgements are not binding, though they are of persuasive authority. Therefore, Crown Court judges are not obliged to follow them. The decisions made by the judges of county courts and magistrates courts are not binding. They are not usually reported in the law reports as they are rarely important.

Judicial precedent is one of the most important source of English law. An original precedent created and applied a new rule whereas the later decisions, of the higher courts, can have a number of effects upon precedents. Particularly they may be:

Reversed: where on appeal in the same case the decision is reversed and the appeal court substitute its own decision.

Overruled: Overruling can occur if the previous court fail to apply law correctly, or because the later court considers that the rule of law contained in the previous ratio decidendi is no longer desirable. then a higher court can overrule a decision made in an earlier case by a lower court. For example, the Court of Appeal can overrule an earlier High Court decision.

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A refusal to follow: the court may refuse to follow the earlier decision especially when it is not bound by the decision or can not overrule it but does not wish to follow it.

Distinguished: where an earlier case is rejected as authority, either because the different material facts or because the statement of law in the previous case is too narrow to be properly applied to the new set of facts.

Explained: a judge may seek to study or discuss an earlier decision before applying it or distinguishing it, thus the impact of the earlier case is varied in the circumstances of the present case.

A decision which is reached per incuriam is one reached by carelessness or mistake, and can be avoided. In Morelle v Wakeling [1955] 2 QB 379 Lord Evershed MR stated that “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 of some authority binding on the court concerned”.

In Secretary of State for Trade and Industry v Desai (1991) The Times 5 December, Scott LJ said that to come within the category of per incuriam it must be shown that the decision involved some manifest slip or error 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.

However, this rule does not permit the Court of Appeal to ignore decisions of the House of Lords. In Cassell v Broome [1972] AC 1027 Lord Denning MR held the House of Lords’ decision in Rookes v Barnard [1964] AC 1129 to be per incuriam on the basis that it ignored previous House of Lords’ decisions. He was rebuked sternly by the House of Lords who considered that the Court of Appeal ‘really only meant’ that it ‘did not agree’ with the earlier decision:

“Even if this is not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords.” (Lord Hailsham)

There are three types of Precedent, Original, Binding and Persuasive. Precedent can be used instead of statutory law in civil cases. Precedent is also known as a common-law, whereby judges follow the outcome.

Original Precedent: If the point of law is absolutely new and has never been decided before, the decision then judge comes to will form a new precedent for subsequent cases. These cases are persuasive but not binding on the court.

Original Precedent is whereby the case is new and has never been in trial, for eg. the cases heard regarding the 7th July 2005 London bombings were Original Precedent as the cases were never heard before a UK judge and hence this rulings would be Original Precedents.

Binding Precedent:

When a case involves a point of law, the lawyers for both sides will research past cases to try and find decisions that will help their clients win the case. A past decision is only binding if the decision is at the right level in the hierarchy and the facts of the second case are sufficiently similar and also Only the ratio decidendi of the earlier case is binding

If a court previously decides on a case the same as the one in front, precedent would be used. For eg, if a person commits murder and there are circumstances whereby the judge ruled that this person is not guilty, then a case in equal standing or the case having the same circumstances, in a later ruling can use the precedent to find the person not guilty.

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Persuasive Precedent:

A persuasive precedent is not completely binding on a court but may be applied. The examples can be given as:

a. Decisions of English courts lower in the hierarchy. For eg, the House of Lords may follow a Court of Appeal decision, and the Court of appeal may follow a High Court decision, even though not strictly bound to do so.

b. Decisions made by the Judicial Committee of the Privy Council.

c. Decisions made in the courts in Scotland, Ireland, the Commonwealth (especially Australia, Canada and New Zealand), and the USA. These decisions are usually cited specially where there is a shortage or absolute lack of English authority on a point.

d. Obiter dicta of English judges.

Judges use a tool called Distinguishing to avoid following a previous decision which they would otherwise be bound to follow. Distinguishing helps to keep judicial precedent and the law flexible.

Where a judge founds that the material facts of the present case to be considerably different from the earlier case, then he may distinguish both d cases and refuse to follow earlier decision. For eg. Merritt v Merritt (1971) and Balfour v Balfour (1919)

Judicial Law Making

Decisions of judges are used to develop many areas of the law, for eg. Tort of negligence.

The speed at which the law develops mostly depends on whether the judge is an active or passive law maker.

in the case of R v R (1991) an active law making can be seen, where the House of Lords ruled that rape within marriage was a criminal offence. Also in the case of C v DPP (1995) An example of passive law making can be seen where the House of Lords refused to change the presumption about criminal responsibility of children under the age of 14, thinking that it was the job of Parliament to make such major changes to our law.

Like every coin has two sides, there are also advantages and disadvantages of Judicial Precedent


* There is certainty in the law. Only by looking at existing precedents it is possible to forecast a decision and plan accordingly.

* There is uniformity in the law. Similar cases will be treated in the same way. This helps to give the system a sense of justice and to make the system acceptable to the public.

* Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations.

* Judicial precedent is practical in nature. It is based on real facts, unlike legislation.

* Judicial precedent is detailed. There is a wealth of cases to which to refer.


* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.

* Rigidity – The system is too rigid and does not allow the law to develop enough.

* Injustice – The strict rules of judicial precedent can create injustice in individual cases

* Slow Development – The law is slow to develop under the system of judicial precedent. The law cannot be changed until a case on a particular point of law comes before one of the higher appellate courts.

* Confusion – Hundreds of cases are reported each year, making it hard to find the relevant precedent which should be followed.

* Complexity – The law is too complex with thousands of fine distinctions.

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