Describe the most important features of the doctrine of judicial precedent.

a. Describe the most important features of the doctrine of judicial precedent. (10)

Judicial precedent is following a standard or particular benchmark that the highest court in the land, the House of Lords has set. This means that the law stays consistent and fair, and applies to all people equally.

The first fundamental principle for judicial precedent to work is to have a clear hierarchy of the courts. This means that it is clear that the House of lords, at the top of the Hierarchy lays down the precedent for all inferior courts to follow. There are two forms of law, these being Criminal law and Civil law. The highest court for Criminal cases is the House of Lords and the highest in civil cases is the European Court of Justice. This means that the precedent these courts set must be followed by lower courts.

The second fundamental principle is to maintain an ethos of consistency and fairness. In this way the whole population governed by the law, know the law and can have confidence that the law is used appropriately.

These two principles go together to structure the doctrine of Stare Decisis. This is translated literally as, “standing by your decisions”. This in effect implies that courts are bound in two manners. Firstly Higher Courts Bind lower Courts, and like cases are decided alike. This ensures that the highest court of the hierarchy has the authority to set precedent for other courts to follow, and that these courts decide their cases on others, in order to ensure accuracy and fairness.

The general practice on judging cases on similar predecessors is as follows. The lawyers on each side of the argument try to find similar cases that have come before courts in the past. They then try to persuade the court to choose between the relevant lines of authority in order to gain their client a victory. The judge then has to decide which case presented is the more closely similar.

This is indeed in the lines of Stare decisis, but then there is the matter of the Ratio Decidendi, the reason for the decision. So for example the case of Donoghue v Stevenson, the rule that was to bind judges in future similar cases was that manufacturers owed a duty of care to the final consumer of the goods. That was in essence the Ratio Decidendi, or the reason for that decision. But peculiarly the Ratio is not stated by the judge himself, but it is identified by the lawyers who examine the case later. This means there is the possibility that different lawyers may interpret the Ratio Decidendi in different ways. This is where the Obiter Dicta is needed, translated literally as “words by the way”, this is known as persuasive precedent as opposed to binding precedent. These are all the other statements and comments made during the case that may help towards clearer understanding of the Ratio or indeed for interpreting other avenues the law can take. These will include the judges reasoning, explanations and why he came to his final outcome.

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But another important feature of judicial precedent is that Lawyer and Judges have some reference to past cases to help them implement precedent. This is in the form of Law reports. Law Reports contain full accounts of Court cases which are considered important. A law report contains an account of the court proceedings and the fact put forward and a summary of the decision. This is followed by the judgements, recorded exactly as they were spoken, this is because the exact wording contributes greatly to the decision drawn. Misinterpretation of what was said may result in the meaning of the outcome being totally different. For the doctrine to be effective in evolution and expanding there must be a precise system of reports. In 1865 the Council of Law reporting was established in order to compile reports for cases heard in superior courts. In addition a publication called the All England Law reports are made, and The Times, a Broadsheet newspaper is also regarded as a Law reporting publication.

b. With reference to any examples, consider to what extent judges are bound to follow precedent. (20)

Indeed, judges are, to a large extent bound to follow previous precedent. This is to ensure consistency and fairness in the system, and follows with one of the basic principles that contribute to successful precedent setting. This is that there is a Hierarchy of courts and the House of Lords has the superiority to set the precedent. This implies that the highest courts decisions bind all lower courts. This ensures that only the most accomplished in the profession can amend the law. (as explained in more detail in part a)

The way in which judges are bound is in Following. This is when a decision based on the outcome of another case which is binding. This generally applies to lower courts having to follow higher courts precedent.

A case showing to the extent to which lower courts, such as the Court of Appeal must follow the House of Lords is seen in Broome v Cassel. The court of appeal did not follow a previous decision of the House of Lords concerning aspects of payments of damages. The Court Claimed the previous decision was per incuriam (a decision which a subsequent court finds to be a mistake, and therefore not of binding precedent.) When the Case went to the House of Lords for further appeal the Court of Appeal was reprimanded. It was stated to them that the Court of appeal must follow decisions set by the House of Lord. Although this case went on to other stages in the Courts appeal for a change, this part illustrates the binding nature of the House of Lords.

But in saying this there are also many ways in which judges can be free from these binding elements, in order to exercise a belief that not all cases are the same. During the twentieth century, law and society have changed quickly, so the Courts needed some degree of flexibility in its decisions in order to evolve effectively with changing attitudes and views in society. And in order for the House of Lords to do this, it made a Practice Statement in 1966. This was a Statement drafted by the House of Lords which gave it the authority to depart from previous precedent and amend the law. It also stated that the Court could overrule a decision where it felt appropriate to do so.

The first instance where the Practice Statement was significantly used was in 1972. This case was the British Railways Board v Herrington. It entailed the misfortunes of a young child who was badly injured after going on an electric railway line via a gap in a broken fence. The railway was near some open ground and a play area, and the station master was aware of the fault in the fence. A previous case, Addie v Dumbreck 1929, had involved a similar situation, but that had concluded in the child being killed when trespassing on a privately owned colliery. The verdict was that there was no liability towards the child, and thus this decision reflected attitudes of the time. But by 1972, society’s attitudes towards health and safety were changing. So, people had come to expect some degree of responsibility on the part of authorities, including British rail, to provide a safe service and surrounding environment. And this resulted in the House of Lords decision to overrule the previous precedent set by Addie v Dumbreck, using its authority as contained in the practice statement. This made British Rail liable for compensation, as the court had decided British rail were aware of the surroundings of the site and knew of the potential risks it imposed on the public.

But, the this power of the practice statement to change the law is used cautiously because of the need for consistency in legal rules, and also to deter people from making appeal on the belief that they could have the House of Lords change the law in their favour.

Another manner in which the courts can escape binding precedent is to “Distinguish” between the material fact of two cases which makes them different, and therefore not directly applicable to the precedent previously set. But sometimes a judge will engage in fairly sophisticated distinguishing to avoid a precedent that the judge believes may result in an unjust result or a case may be determined on such a finely drawn difference. But generally this feature of precedent is used to treat slightly different cases as individuals and may result in just a slight tangent from the precedent or the creation of new law altogether.

Another manner in which precedent can be avoided is by a higher court reversing a decision made by a lower court, in the same case. This means that the higher court in question is finding new reasons for awarding the victory to the opposite side, and thus avoiding the precedent used originally.

Such an example of this is Bromley v GLC. This was a case in which Bromley council believed that its population should be exempt from paying extra taxes to fund transport in particular the tube, which does no go through Bromley. It is enclosed within other areas. To begin with the case started off in the divisional court, where the case was awarded in favour of Bromley. Then The GLC appealed to the Court of Appeal and the decision was reversed, and then once more by the House of Lords.

The Courts can also use Obiter Dicta to depart from previous precedent. This involves reinterpretation of the Ratio Decidendi or Obiter Dictum in order to find a solution. This can is known as using persuasive precedent as opposed to binding precedent. For example in the court of appeal Lord Denning gave a dissenting judgement in the case of Candler v Crane, Christmas & Co 1951. He considered that a person who negligently makes a statement should be responsible for the consequences if another person is relying on those statements. The other judges in the Courts of Appeal did not agree with him. Subsequently, in another case, Hedley Byrne v Heller & Partners Ltd 1964, the House of Lords decided that Lord Dennings Views had been correct. His Obiter Dictum in Candler became the basis of the Ratio decidendi in Hedley and hence the law. This is important in avoiding precedent because cases later can use Obiter Dictum to evade from the current precedent. In this case it was used to transcend current precedent and create new precedent.

Another benchmark in avoiding previous precedent was in the court of appeal. The Court of Appeal generally is bound by its own decisions and those made by the House of Lords. But in 1944, following the Young v Bristol Aeroplane case, the court of appeal laid down grounds on which it would not be bound by its own precedent. These circumstances were if two previous decisions of the Court of Appeal conflicted then the Court could chose which avenue to follow, and hence overrule the other. The next was if a House of Lords decision conflicted with one from the Appeal, then the House of Lords Decision would be followed. The last was if a Court of appeal decision had been made per incuriam, that is, without taking into account a relevant case or statute, then the decision made in error can be overruled.

In conclusion it is clear to see that there are many devices which Courts can used in order to free themselves from binding precedent. These include the Practice Statement, Reinterpretation of the Ratio Decidendi and Obiter Dicta, as well as other devices such as overruling and distinguishing. But it is when we remember that the system has to remain consistent and fair we realise the extent of importance that the binding of courts has. So to a very small extent Courts can avoid Precedent, but a majority of cases must stay within the doctrine of judicial precedent. So, Courts and judges are bound by a large extent to follow precedent.

AS Law -