There are two types of obiter dictum, a statement of law based upon facts which were either not found to exist or, were not found to be material, also a statement of law which although based on facts does not form the basis of the decision.
Precedence operates when a case is similar to the one in question. A good example of binding precedent was Donoghue V Stevenson (1932) and Daniels V Whites (1938).
In the case of Donoghue V Stevenson, the claiment visited a café with a friend who purchased a bottle of ginger beer. Some of the beer was poured into a glass then drunk. When the remainder of the beer was poured into the glass along came the remains of a decomposing dead snail. The claimant was unwell as a result and sued the manufacturer of the ginger beer, claiming the illness was their fault. In the case Daniels V Whites, a bottle of lemonade was purchased, but upon drinking it the plaintiff felt a burning sensation. The lemonade was found to contain a chemical and compensation was awarded based upon Donoghue V Stevenson. This widened the precedent beyond ginger beer, applying Lord Atkins neighbour principle to any person selling a consumable item.
No legal system can be perceived as fair unless everyone receives equal treatment. Predictability allows lawyers to advise their clients with some degree of certainty. Certainty is an important advantage from the existence of precedent. However some may feel that treating two cases alike doesn’t allow for much freedom and rigidity is formed, inhibiting the development of the law and therefore giving the impression that the law of precedent is strict and inflexible.
There are various ways in which a judge may avoid following a previous decision. A judge may be able to distinguish an earlier case from the present case on its facts and thus avoid following it. No two cases will ever be identical in every way so it is important to distinguish material differences in the cases. A material difference is that such as if the decomposing remains of a snail were found in a clear bottle rather than opaque, so the claimant would have been able to see the snail through the glass. If a worm had been found in an opaque bottle instead of a snail, this would not have been a material difference. This would indicate that separate precedents would need to be used.
A judge could avoid using precedent because he found the ratio too obscure or the previous decision was ‘per incuriam’ (by mistake and without facts).
Reversing occurs when a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case. The decision of a court of appeal ruling that the judgement of a lower court was incorrect and is therefore reversed. The result is that the lower court which tried the case is instructed to dismiss the original action, retry the case or change its judgement. Examples include; a court, which denied a petition for writ of mandate is ordered to issue the writ. A lower court, which gave judgement with no evidence of damages is ordered to dismiss.
So, a judge can overrule a decision made lower in court hierarchy and also overrule past decisions made in their own court. The House of Lords abolished the law that a husband could have sex with his wife at any time she always gave consent even if she didn’t want to. They could abolish this rule because of the 1966 practise direction (Lord Chancellor) which said that the House of Lords was no longer bound by its previous decisions.
This proves that the law of precedent has scope and isn’t fixed. The law of precedent does have its advantages and disadvantages and is both strict and inflexible. Yet there are ways in which a judge can avoid using precedent if he need to. Flexibility is gained via a number of different ways, including distinguishing, per incuriam, overruling, conflicting decisions and through the House of Lords practice statement 1966. In the case Rondel V Worsley (1967) the precedent which was previously set was you could not sue your barrister if you lose your case in court. In the year 2000 the precedent was qualified and now in certain situations it is now possible to sue your barrister. This shows that it is possible to review precedents and change them if there is need to do so.
