Explain and Illustrate, the Operation of the Doctrine of Judicial Precedent and Discuss how far Judges are Bound by Decisions in Previous Cases.

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Rebecca Allott                (AS) Level Law Assignment

Explain and Illustrate, the Operation of the Doctrine of Judicial Precedent and Discuss how far Judges are Bound by Decisions in Previous Cases

One of the fundamental characteristics of the British Legal System is that of Judicial Precedent.  The rules dictate that in certain circumstances a decision be followed whether the second court approves of the precedent or not.  In more simple terms, this means when a judge must follow any decision a higher court has made about a case with similar facts.  

The judgement of a court can be divided into two.  Each part as a Latin name; the ratio decidendi and the obiter dicta (which is explained later).  Ratio decidendi translates as “the reason for the decision”.  A definition of the ratio decidendi is one by Professor Cross, which is: “Any rule of law treated by the judge as a necessary step in reaching his conclusion”.  So, the ratio of a case is the rule of law, which dictated the outcome of the case.  In Donoghue v. Stevenson, the claimant suffered through finding the remnants of a decomposed snail in her ginger beer.  She sued the manufacturer.  It was held that he owed his consumers a duty to take care.  The claimant won on this point of law.

The basics of Judicial Precedent are best illustrated in the case of Re Schweppes Ltd’s Agreement (1965).  Here the court of Appeal, with Willmer L.J. dissenting, ordered discovery of documents in a case involving restrictive trade practices.  On the same day the same three judges gave judgement in a second case involving the same point-Re Automatic Telephone and Electric Co Ltd’s Agreement (1965). Judgement in the second case was delivered by Lord Justice Willmer who said: “If the matter was res integra, I should have been disposed to discuss the appeal in this case for the same reasons as those which I gave in my judgement in the previous case.  This means that the appeal in the present case should be allowed”.  The second decision was therefore unanimous.  To summarise this even further, the doctrine of binding precedent is called “Stare decesis et non quieta movere”, which means stand by what as been decided and do not unsettle the established.  This means a decision made in one case is binding on all following cases of similar fact in lower courts.

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All parts of the judgement, which do not form part of the ratio decidendi of the case, are called obiter dicta this is Latin for “things said by the way”.  None of the obiter dicta form part of the case law though judges in later cases maybe influenced by it, and this is said to be persuasive precedent.  However, the essential ingredient of Judicial Precedent is that of the hierarchy of courts and rules, which indicate the inter-relationship between the different courts.   

The Europeon Court of Justice is a relatively new court within our judicial system.  Its main ...

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