The principle of precedent is that the new law binds all later and lower courts therefore the House of Lords in theory should stand by previous precedent. However this is not the case now. The Practice Statement 1966 made by the House of Lords said that they were not bound by their own decisions and would depart from their previous decisions if they considered it necessary to do so. This was demonstrated after the case of Rondel v Worsley (1969) in which the House of Lords introduced the rule that barristers were not immune from liability for negligence over the way that they conducted conduct a case in court. This became precedent until the case of Hall v Simons (2000) where the House of Lords departed from its previous decision using the practice statement. They altered their decision to ignore the verdict of Rondel (1969) and to introduce that barristers could now be sued for negligence of court work.
The case of Young (1944) also laid down the principle that the Court of Appeal could depart from its previous decision if:
It was made in error
If two of the Court of Appeal decisions contradict each other, they can follow one and discard the other
In the criminal division in the interests of justice if a conviction is not certain a person can be released.
So under the Practice Statement 1966 and Young (1944) both of the precedent setting courts could depart from previous decisions if they see it necessary.
There are certain methods which judges can adopt when looking at precedent that has already been made in producing verdicts for present cases.
Distinguishing – this device can be used to avoid following a past decision which contains differing facts to the present case. If this is the case the judge is not bound by the previous decision. An example of this is Balfour v Balfour (1919) and Merritt v Merritt (1971). In both cases wives were claiming against their husband for breach of contract. In the earlier case the claim did not succeed as their was no intention to create legal relations however in the second case the couple were separated and the agreement was in writing and was meant as an enforceable contract, differing from the earlier case. Therefore the judge created a new decision on the basis that the facts were sufficiently different and the past precedent could not be applied.
Overruling – This is where a court in a later case identified that precedent set in an earlier case was wrong. This can only occur if:
A higher court overrules a decision by a lower court
The ECJ overrules one of its own past decisions
The House of Lords overrules one of its own past decisions under the Practice Statement 1966.
Reversing – This is where a court higher up in the hierarchy overturns the decision of a lower court regarding similar cases.
(b) With case examples, explain the advantages and disadvantages of the doctrine of judicial precedent (15 marks).
There are many advantages of judicial precedent. The first of these is that by judges creating laws it provides certainty. By following past decisions it allows people to know what the law is and how it is likely to be applied to their case. This certainty also means that lawyers are able to advise their clients.
Consistency and fairness- When the precedent is applied to later cases it is seen as just and fair that similar cases are decided in a similar way. This idea of consistency can be demonstrated in the case of Donoghue v Stevenson (1932) in which the judge introduced the precedent of reasonable foreseeability and whether the defendant owes the claimant a duty of care. This meant that in deciding future cases if it was evident that the event that took place was reasonably foreseeable that it would be dealt with in a similar way to this case.
Precision – as each principle of law is set out in an actual case the law becomes very precise and the judges apply their expert knowledge of the case to ensure their intention is known. An example of judicial precision is demonstrated in Alcock (1991). It was laid down that those claiming for compensation after the Hillsborough disaster having suffered from Nervous Shock had to satisfy 3 criteria to show they were owed a duty of care:
Reasonable foreseeability
The claimant had to have ‘ties of love and affection’ to the injured person
The claimant had to have seen/heard the incident or its immediate aftermath directly.
These 3 criteria were set out to ensure that there was not a mass number of people receiving compensation. The rules set out are extremely precise and leave no room for misinterpretation.
Flexibility – due to the implementation of the practice statement there is room for change and distinguishing. This means that the law can be kept up to date as shown in the case of Hall v Simons (2000) where the House of Lords departed from its previous decision in Rondel v Worsley (1969) to say that barristers were no longer immune from liability for negligence in court work.
Time saving – This is linked with the idea of precision. As with the case of Alcock (1991) due to the strict criteria that claimants had to fit, lawyers were easily able to advise their clients as to whether they’d be eligible or not. If it turned out that they would not fit the 3 criteria they would be advised not to claim hence not wasting the time of the courts.
Having considered the advantages it has to be noted that there are some disadvantages:
Rigidity – because lower courts have to follow decisions of higher courts and in most circumstances the Court of Appeal is bound by its own decisions, the law can be too inflexible and decisions made in the past may be followed when they should not be.
Complexity – the total number of law reports as it stands is approximately half a million. These all give the ratio decidendi from each case. Seeing as this is the part which sets the precedent the ratio must be taken from each report. The ratio decidendi are the words of the judges which are usually ambiguous, using complex legal language. They can also be very lengthy and when the decision has to be understood by lawyers it can offer be time consuming to decipher the underlying point of the verdict.
Illogical distinctions – the use of distinguishing by the courts to avoid past decisions can lead to ‘hair splitting’ and some areas of law becoming very complex. An example of this would be Donoghue v Stevenson (1932). The judges in the case decided that the claimant was owed a duty of care as she had a transparent non resealable bottle of ginger beer bought for her and later discovered it contained a decomposing snail of which she drank. She was ill from this and the judges decided the defendants in this case the manufacturers, were negligent.
This then set a precedent for future cases of similar facts. In the case of Evans v Triplex safety glass (1936) the defendant (triplex) manufactured windscreens which were then transported by a different company and fitted to the claimants car. The claimant was driving and the screen shattered injuring the claimant. Donoghue (1932) was applied but was distinguished from due to the fact that the glass may have shattered due to the transportation and fitting, therefore the claimant lost.
Slowness of growth – it is necessary to wait for suitable cases to be presented in court in order to get a decision on areas of the law which need reforming. This can lead to ‘accidents of litigation’ If wrong laws are made it could possibly take years for it to be brought to someone’s attention. An example of such is R v R (1991) the House of Lords created new law to say that marital rape was now a crime whereas it had previously been made law that it was not possible for a man to rape his wife.
