The ratio decidendi is the legal principle used to reach the decision in a case. It forms the binding part of the judgment i.e. the part which has to be followed through the doctrine of binding precedent. This in turn leads to another crucial distinction. Not every statement of law in a judgment is binding. Judges are able to distinguish between cases if the facts are significantly dissimilar; a judge is not then bound by the previous case. Two cases demonstrating this process are Balfour v Balfour (1919) and Merritt v Merritt (1971). Both cases involved a wife making a claim against her husband for breach of contract. In the second case the wife succeeded as the agreement was not just a domestic arrangement but meant as a legally enforceable contract. The facts were dissimilar as the agreement in Merritt v Merritt was made after husband and wife had separated. In certain cases a decision can be overruled if a judge in a future case changes the ratio decidendi in a past case. A judge could do this if he or she found the ratio decidendi too obscure or that the previous decision was made per incuriam i.e. carelessly or by mistake. Another way of avoiding precedent is reversing; if a case is appealed to a higher court then the ratio decidendi can be changed / reversed.
Any other statement of law is, strictly, surplus and is described as obiter dictum (other things said). A statement of law is regarded as obiter dictum if it is based on facts which either were not found to exist, or, if found, were not found to be material. The obiter dicta and the legal reasoning put forward may be considered in future cases, although, as with all obiter statements, it is not binding precedent.
In order to follow past decisions there must be an accurate record of what those decisions were. In 1865 the Incorporated Council of Law Reporting was set up – this was controlled by the courts. Reports became accurate, with the judgment usually noted down word for word. This accuracy of reports was one of the factors in the development of the strict doctrine of precedent. Law Reporting helps Judges to distinguish facts in cases and also helps to determine the similarities between certain ratio decidendi.
As explained earlier there are advantages and disadvantages to this strict doctrine of binding precedent. Certain advantages are problematic, not to say contradictory. For example, there is a certain degree of flexibility within the law, but considered to be within the House of Lords only. So many cases reach the House of Lords that the legal system of court hierarchy is too rigid; the fact that lower courts have to follow decisions of higher courts. There will always be advantages and disadvantages with the strict doctrine of binding precedent throughout the court hierarchy.
2. (b)
Judges can avoid rigidly applying precedent through many ways. One way is distinguishing; if the material facts are different the judge can distinguish his case from the previous one and not follow the precedent. It should only happen if it is the material - i.e. important to the decision - facts are different but can happen on trivial facts to avoid following a precedent where the rule may seem inappropriate in the current case. This can lead to uncertainty and illogical reasoning. Examples of distinguishing can be shown through the cases of Balfour v Balfour (1919) and Merritt v Merritt (1971). The facts of the cases have been explained in the above question.
Overruling, this is where a Judge in a higher court can overrule the ratio decidendi made in a lower one. The House of Lords can overrule itself through the use of the Practice Statement 1966. An example of this is in the case of Pepper v Hart (1993) in which the decision made by the House of Lords allowed the use of Hansard (a record of parliamentary debates) in court to interpret statutes. The Court of Appeal has exceptions on following itself, these are:
- Conflicts with another decision made by the Court of Appeal – the court is entitled to decide which of the two conflicting decisions of its own it will follow.
- Conflicts with a decision made by the House of Lords – the Court of Appeal must follow the House of Lords.
- If a decision is made per incuriam i.e. carelessly or by mistake, then the Court of Appeal is not bound by that decision.
These rules were established in Young v Bristol Aeroplane (1944). Once overruled, the new decision becomes a precedent. This can happen in a new case or an appeal. If on appeal then the decision is reversed and the precedent overruled.
Reversing, only on appeal, a higher court can reverse an earlier decision in the case. In the case of R v Formosa, Formosa appealed on the ground that he had not designed or adapted the bottle, his conviction was overturned. Thus his appeal was allowed.
A court may also disapprove a decision e.g. if it thinks the law is wrong but it can't be overruled because a higher court made the earlier decision. The court will disapprove the decision and then next time a similar case goes to the House of Lords they may take notice of that and overrule it.
Another way of avoiding precedent is when a judge interprets a precedent broadly or narrowly. In Donoghue the neighbour principle was very wide (in fact it was seen as obiter by many judges), the narrow interpretation would be merely that a manufacturer owes a duty to a consumer. The court may argue that the precedent has no clear ratio decidendi. As the only part of a decision that creates a binding precedent is the ratio, the legal principle on which the decision is based, then if this is vague judges may declare a point to be obiter and consequently not binding on them.
In the case of Elliott v C (1983) it would have been difficult for Lord Justice Goff to avoid applying precedent as Divisional Courts are bound by themselves. However, he could have been able to disapprove of the decision made by Lord Diplock in the House of Lords in Caldwell (1981). Lord Justice Goff could have stated that the law is wrong and have waited till a similar case reaches the House of Lords and they may consider the decision. Lord Denning and the Court of Appeal demonstrates an example of when judges - sitting in courts that are naturally bound by decisions made by themselves and also the House of Lords - disapprove of past decisions and state that justice could only have been done by changing the law.
2. (c)
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The judge in the Queen’s Bench Divisional Court should consider himself bound by the precedents in Caldwell and Elliott v C. Although the judge feels it unfair to convict the boy, the fact that Divisional Courts are bound by themselves but also the House of Lords determines that he should have no other alternative but to convict the boy.
(ii) The House of Lords should not feel itself bound by the decision made in Caldwell. Through the use of the Practice Statement 1966 the judges can depart from the decision made in Caldwell as they would have felt it right to do so. The judges would have recognised that certain children do not understand the consequences of their own actions and under a unanimous decision would have acquitted the boy. The House of Lords is not bound by decisions made by courts below themselves in the hierarchy and so would not have had to take into consideration the decision made in Elliott v C.