Stare Decisis. Professor Sir Rupert Cross identified three fundamental principles of the doctrine of stare decisis[1] which is all courts must consider relevant case law, lower courts must follow the decisions of courts above them in the hierarchy; appell

Decisions can be split into the ratio decidendi and obiter dictum. Michael Zander defines the ratio as “"A position of law which decides the case, in the light of or in the context of the material facts."” Ratio is the reasoning behind the decision or it is the legal principle upon which it is based. Ratio is a legal phrase which refers to the moral, legal, political and the social principle that’s being used by a court to compose a rationale of a particular judgement. Obiter Dicta is the Latin for a statement ““said by the way””, is know to be the remark or also the observation of the judge, although included in the body of the court’s opinion, does not form a necessary part of the court’s decision. In fact weighty obiter dicta from the highest courts are likely to be followed for an example that in the case of Hedley Byrne & Co. Ltd. v Heller & Partners Ltd, where it is been said that there is a special relationship between the parties, there is a duty of care in relation to statements.

The following is the excerpt from Lord Atkin in the case of Donoghue v Stevenson. Here it is clear to distinguish between ratio decidendi and obiter dicta. The ratio decidendi is “"The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.  But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.  In this way rules of law arise which limit the range of complainants and the extent of their remedy.  The rule that you are to love your neighbour becomes in law, you must not injure your neighbour and the lawyer's question, who is my neighbour?  Receives a restricted reply.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.  Who, then, in law is my neighbour?  The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."” Next, the obiter dicta would be “"My Lords, if your Lordships accept the view that this pleading discloses a relevant cause of action you will be affirming the proposition that by Scots and English law alike a manufacturer of Products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.  It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt.  It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense.  I think that this appeal should be allowed.””

Every decision has two components. The first one is that of ratio decidendi and the second one is followed by obiter dicta. The judges only have to follow that ratio decidendi of the case as it is the reasoning behind the decision as it has been said earlier. The judges don’t have to follow the obiter dicta because it is a mere persuasive decision. The ratio decidendi is the legal principle that underlines the decision of a case that is in question. The problem is that it is difficult to follow especially in decision of the House of Lords or the Court of Appeal where in these courts there are more then one judge. Here the difficulties arise because of the different judges who give different reasons for their decisions. This can clearly be seen in the case of White v Jones, where a solicitor carelessly failed to amend the will of his client, with the effect that the client died before the intended beneficiaries were indicated on it. The beneficiaries brought an action in negligence against the solicitor, to recover the money they would have received under the will. The issue here is that the House of Lords had to distinguish whether the solicitor owed a duty of care to the daughter. Lord Goff said that the solicitor did owe a duty of care to the daughter because there would be injustice because neither the testator nor his estate would receive remedy thus it would be leaving a gap in the law.

Lord Browne Wilkinson stated that the solicitor owed a duty of care to the daughter because they shared a special relationship and that the solicitor voluntarily assumed the responsibility as he had agreed to amend the will that it would be reasonable for the beneficiary to rely on the solicitor even though there was no contract.

In this case Lord Nolan agreed to both Lord Goff and Lord Browne Wilkinson. On the other hand, Lord Keith and Lord Mustill both disagreed to the decision that’s been made.

Mechanism through which judges avoid precedents

A ratio must be followed if a material fact of a case does not differ from the earlier case. A judge who is deciding on a case has to establish the ratio of the authority and determine whether he is bound by the case or not. There are four elements that a judge can use to depart from a previous decision.

1) Overruling

A court of a competent jurisdiction within the hierarchy of the courts may declare that     the decision in a previous case is no longer good law as it was not correctly interpreted or the later court considered that the law at that time was no longer supportable in the present time. In short, overruling is a procedure where a decision of a lower court is overturned by a higher court in a different, later case.

2) Reversing

A case is said to be reversed when it is appealed to a higher court and the higher court disagrees with the decision made by the lower court and instead gives its decision in favor of the other party.

3) Distinguishing

Distinguishing is used when in a later case the court draws some point of view between the previous case and the present case. A court which wishes to avoid following the decision of a higher court will use this method. If the lower courts can find some distinction on the facts between a previous case and the present case then the lower court is not bound by the earlier decision. This can be seen in the case of Rylands v fletcher (1866) was not applied in the case of Read v Lyons & Co Ltd (1947) as on the fact that it was held that there was no escape.

4) Per Incuriam Statement

A decision which is reached in this manner is one reached trough ‘want of care’. This does not signify the mere carelessness on the part of the court or the fact that the case was badly argued or the judgment was badly reasoned.

Lord Denning, citing the per incuriam rule, in Broome v Cassell (1971) famously persuaded the other members of the Court of Appeal to reach a decision that was contrary to a House of Lords decision in Rookes v Barnard (1964).This was part of a concerted campaign by Lord Denning to give more flexibility to the Court of Appeal. Lord Denning's decision was reversed when Broome reached the House of Lords.

The Court Structure

The House of Lords is the highest appellate and accordingly the decisions from this court which is the House of Lords are binding on all the lower courts. Furthermore, the House for the greater part of the twentieth century, regarded itself as being bound to its own decisions. This can clearly be seen in the case of London Tramways v London County Council (1898). It was considered that the decision of the House of Lords should be the final say in the public interest so that there would be a certainty in the law and an end to the litigation process. In 1930’s there were increasing judicial critism especially that the issue was that it did not produce desired certainty and it had led to the rigidity of it.

As a result of this rigidity, there was no room for proper development of the law, and this did not flatter the position of the House of Lords as they were the highest appellate court. Surely, it would be their responsibility to contribute effectively in order to contribute effectively to developing the law in line with the social and economic changes.

Thus, the Practice Statement 1966 was issued by Lord Gardiner LC himself in the House of Lords. This practice gave the House of Lords the right to depart from its own previous decisions when it “appears right to do so.” Furthermore, the observation can be made that now the House of Lords will not be too rigid in applying the law as they have the power to decide otherwise when it is fit to do so as there is a flexibility in the law now.

Nevertheless, the Practice Statement was not to be regarded as a convenient tool disregard the binding nature of the precedent. This can be observed from the exact wordings of the Statement which is here set out in full:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House.” 

The change in the practice was approved by lawyers generally. However, some were quite surprised that such an important change was brought about by a Practice Statement and not by the Parliament. Furthermore, the provision in the practice statement which says “when it appears right to do so” had been greatly criticised as too wide in its context and in the decision making process.

In the matters of the European Union, the House of Lords is bound to follow the decision that has been set out by the European Court of Justice. Also that the decision of the Court of Appeal are binding on all other courts including itself. This can be seen in the case of Young v Bristol Aeroplane Co Ltd, where the decisions of divitional lower courts are binding on high court judges sitting alone and on all other courts except the House of Lords and the Court of Appeal and also not to forget a few special courts of the same standing such as the Martial Appeal Courts. In addition, that the decision of the judges in the High Courts are binding on all inferior courts including the Crown Court, County Court and all the Magistrates Courts. Although, the decision of foreign courts are not binding on the English Courts but the decision of the Judicial Committee of Privy Council of Scotland, Australia, Canada, New Zealand, and the United States where all these countries with a legal system that have a common law based and so their decisions are binding  and are highly persuasive. Sutherland Shire Council v Heyman (1985) was approved trough the dicta of Caparo Industries plc v Dickman (1990) by the High Courts of Australia.

The European Court of Human Rights is not bound by its own prior decisions although it is likely to follow its own prior decisions for the same reasons that apply to the European Court of Justice, for example to achieve consistency, due to professionalism and in order to avoid excessive litigation.  It is important to note that following s.2 Human Rights Act 1998 the courts in the United Kingdom must take account of the decisions of the European Court of Human Rights, including its jurisprudence from the period prior to the passing of the Act.

Merits of Stare Decisis

It promotes efficiency by ensuring that every single issue will not need to be re-decided in every case, which in turn reduces legal costs. However, unless or until the issue is re-considered a bad decision will stand. You will remember that when we considered one of the justifications given for the House of Lords being bound by it's own decisions in the London Tramways case was that it was less time consuming to follow a previous decision than to have to decide the issue anew every time it arose. However, whilst this time-saving feature of the doctrine of stare decisis may be an advantage, it can also lead to the importance of any one case being over-emphasised.  Lord Radcliffe, warned against over-emphasising the importance of individual decisions arguing that:

“"There is a tendency today to give too  much importance to particular decisions, and by so doing to discover leading cases before they have proved that they have in them the quality to lead.  There is too much forcing of unripe growth.  Seen from the inside hardly any decision comes out ready made as a general authority; nor, I believe, do those who participate in it think of it in that way.  One learns the vast difficulty of generalising on any matter of principle, just because, short of genius, there are very few minds that have the imaginative grasp to see the full implications of a generalisation and to pass in review its effect upon the interconnected strands of our body of law.  It is not a question of playing safe but it is rather that a sensitive, not a blinkered, concentration upon the direct issue that has to be resolved makes for sounder construction of that legal body.  And, perhaps, only their successors who have to work upon them appreciate how flashy have been the gnomic utterances of some of our best know judicial sages,"”

This much said doctrine promotes consistency in judicial decision-making and in so doing reduces the impact of the personal views and prejudices of the judiciary. It is certainly no bad thing for a legal system to be based upon consistency; however, it could be argued that this consistency comes at a very high price, inflexibility.  The judge may change his mind about his previous decision and that he may consider that he paid too much or too little attention to a particular factor or quite simply that he was wrong.

This doctrine also promotes justice by ensuring that similar cases are treated in the same manner the doctrine could be said to promote justice.  However, as we have seen judges have a large amount of discretion to determine what will make cases similar.  Moreover, justice is not served by following a bad decision simply in order to treat similar cases in the same manner.

By following past decisions the law maintains quite a high degree of stability which allows lawyers to provide their clients with accurate advice and further allows individuals to plan their affairs in accordance with the law.  However, the practice of overruling and subtle distinguishing means that the law relied upon may change without warning.  Moreover, as we have seen, it can be very difficult to determine the ratio of a decision, particularly if each judge gives a separate judgment, a situation which is aggravated where the judges' decisions comprise more than one ratio, and thus it may be very difficult for legal advisers to advise their client accurately.

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