Another part of the doctrine of precedent is obiter dicta, this means that it is a comment made by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be said in legal argument, it does not have the full force of a precedent since the comment was not part of the legal basis for judgment; it is just simply trying to persuade the law to make a decision.
The other part of the doctrine of precedent is ratio decidendi. This is the part of the judgment that is the most important for the doctrine of precedent. The ratio decidendi means the reason for deciding. Ratio is the main facts of how the judgement is decided. Once the decision has been made, it is binding for all the lower courts to follow the same decisions that were made in a previous case. For example a good case to use for this would be Donoghne vs. Stevenson, in this situation two women had bought a bottle of ginger ale, they had found a decomposed snail in the bottom of the bottle, they then started to feel ill, they then went on to sue the manufacturer. This set up a decision for all cases of this type to follow. The case was in 1932. A case that has followed the decision that was made in the Donoghne vs. Stevenson case is Daniels vs. White. In this case a man bought a bottle of lemonade; after drinking it they experienced a burning sensation in their throat, and they found that there was a corrosive liquid present in the lemonade, again they went on to sue the manufacturer. This case was in 1938, the judge had followed the judgment that was made previously. In other words this case followed the precedent that was set by the case of Donoghne vs. Stevenson.
Another source of law that you could use when studying the doctrine of precedent is the practise statement that was set in 1966. It made the practise statement so that there would be a degree of certainty in the law. The HOL decided that it must be bound to follow its own decisions in the case of London Street Tramways s. London County Council. In this case, a young child had been injured on a train line when it ran out onto the line which should have been repaired. After deciding the outcome of this case, the HOL decided that it should be bound by its past decisions on cases like this. The practise statement was first used in the case between Conway vs. Rimmer in 1968. The first major case that the practise statement was used on was the Harrington vs. British Railways case in 1972. The use of the practise statement changed during the 1980’s and 1990’s because of an increasing willingness to use the practise statement.
B) There are a great deal of advantages and disadvantages to the doctrine of precedent. For the advantages, there is now certainty thanks to the practise statement, this stated that when there is a decision made about a case, and then a similar case should follow the same decision that was made in the previous case. There is also now consistency and fairness thanks to the doctrine of precedent because there is the fact that the results of the case or the outcome of the case should be the same for everybody. This was shown in the cases Donoghne vs. Stevenson and Daniels vs. White. The decision that was made in the Donoghne vs. Stevenson case was again followed and made in the Daniels vs. White case, it was fair to make the decision based on this case because they are too similar cases and the outcome should be the same and that is when the decision is consistent, no matter what the case is, just so long as the details are similar.
There is now a flexibility that is seen throughout the court system, for example the practise statement now shows that the decisions that were made in past decisions can be slightly altered to suit the case that is being decided at the present time, for example, you could take into account the basic points that must be followed in making a decision about the case, then you can alter these points to suite the case that you are studying. There is also the fact that a judge can now try to overrule a previous decision that has been made in a previous case, this can occur if they believe that the two cases are different in some way and that to follow the decision that had been made previously in a similar case would not be the right decision to make in this case.
The new system is also time saving, this is due to the fact that if there are two cases that are similar then the decision that was made previously can be again made here and it does not waste any time and you can therefore get through more cases which is better for all people involved. And it also makes the decision making a whole lot easier because you can just look at the past decision that was made and if both cases are similar then the same decision will be made. The final advantage of the doctrine of precedent is that there is now a reduction in litigation.
Although there are these advantages to the cases, there still remains a great deal of disadvantages to the doctrine of precedent. The doctrine is seen to be rigid in some cases because you always have to use the decision that was previously made and you do not really get to take into account the different points of the case. The lower courts must always follow the higher courts, this again means that if there is a slightly different case then you cannot take this case into account because you are binded to make the same decision that was made previously. And there is no way that you can make a different decision or attempt to challenge the higher courts decision on this type of case. There are therefore fewer cases going to the HOL because there is no chance of appealing against the decision and this therefore means that the HOL does not get as much use as the other courts do.
The cases also do sometimes have a sense of complexity to them. For example not all cases are the same; this means that you must look at the past decision very carefully just to ensure that the correct decision is being made and that you have not interpreted the case in correctly. There is also a great deal of cases; this means that not the same decision can be made to all the cases. The judgment of the case is also a very long process and sometimes it can take up great periods of time that could be used for getting other cases out of the way.
There are also illogical distinctions between each and every case that is being studied; there are distinguishing facts to the case that can not surely be applied to every case that is being studied. The fact that the cases also are very slow and waste great deals of time are a great problem and that there is a slowness of growth in the cases. There is also a disadvantage of clarity and reform, could the decisions be changed from a previous date because the law may have changed and to use the same decision for a case nowadays that was used around 50 years ago would be wrong because obviously the laws have changed since back then.
The question that has arisen time and time again is; should the COA be bound by its past decisions or should it be able to change its decisions to suite the particular case that is going on? The answer that should come from this is that the COA should be bound like all other courts and stick to past decisions that have been made, but once again the problem with this is that not every case is the same and can not all follow the same structure as there are different points to consider in ever case that comes forward to a court.
Finally the other disadvantage that has arisen is that is the decision that is being made in the best interests of the public, as there could be a judgment that upsets the public and one that they could be strongly opposed to, does the fact that there could be trouble from a decision that has been made make it acceptable to change the judgment of a court or should all courts follow the decisions that it is bound by, no matter what the public opinion may be.
