• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

What is the doctrine of precedent

Extracts from this document...

Introduction

What is the doctrine of precedent? The doctrine of precedent is a form of reasoning and decision-making formed by case law. If a higher court has made a significant legal point in one case, it would be considered as binding in later courts. In order to understand this doctrine more clearly, it would be necessary to examine the hierarchy of the English Courts. The House of Lords holds the highest position, any decision made by them, would be binding to lower courts which filter down to the Court of Appeal, to the Crown Courts and County Courts. This is otherwise recognised as the doctrine of stare decisis, which means standing by what has been decided. This doctrine is a fundamental principle of English Law. The use of precedent is vital to the decision making process of the courts. ...read more.

Middle

This is evident in the earlier given example of Pickstone v. Freemans over "equal pay" and also in the case of Finnegan v, Clowney Youth Training Programme Ltd [1990] 2 All ER 546 on the retirement age for women under the Sex Discrimination Act 1976. Further to the point of the European Court of Justice, all English courts are required to be consistent with the jurisdiction laid down from U.K.'s membership to the E.U. particularly in relation to the Human Rights Act 1998. A persuasive precedent is different to a binding precedent in that the lower courts are unable to bind the higher courts to their decision, but can only be persuasive. As in the Mandla v. Dowell Lee case, we can identify how the House of Lords decision was swayed by the decision made in the Court of Appeal level in Australia. ...read more.

Conclusion

However, in attempt to overturn this principle, Lord Denning M.R. tried to make a House of Lords decision per incuriam. A previous court ruling can be labelled as per incuriam, i.e. the decision oversaw a number of significant material facts before submitting a legal rule. This attempt was made and condemned later in the House of Lords in Broome v. Cassell [1972] 2 Qb 354. Lord Denning M.R. tried to ignore the ratio in Rookes v Barnard [1964] AC 1129 with the reasoning that there was a significant oversight made by the Law Lords. When this case reached the House of Lords, Lord Hailsham stated, "In the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers". This affirms the doctrine of precedent that lower courts cannot overturn the precedent set out in higher courts. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree English Legal System essays

  1. Judicial Precedent

    For example, Gomez followed the precedent held in Morris over appropriation in theft. The legal rule may also have been formed in the same level of court, as in the case of Regina v. Mazo (1997) and Regina v. Hinks (1998), where there were conflicting ratios made within the Court of Appeal over consent and appropriation.

  2. The ultra vires doctrine

    Failing at the first instance on the basis that, as the panel was exercising neither statutory nor prerogative powers, its decisions were not amendable to judicial review. The applicants appealed to the Court of appeal. Sir John Donaldson MR statement gave insight into the of the decision of the court4

  1. Law Making - Judicial Precedent.

    It may then be appealed to the European court of Human rights which may take further years. In R v R 1991 part of Mr R's defence was that at the time he had intercourse with his wife he could not commit a criminal offence as that offence was created by the HOL through judicial precedent some 2 years later.

  2. Judicial Precedent

    The House of Lords however, pointed out that the Court of Appeal had no right to ignore or overrule the decisions of the House. The main argument in favor of the Court of Appeal being able to ignore House of Lords decisions is that very few cases actually reach the

  1. The doctrine of Precedent.

    Persuasive precedent comes from a variety of different sources. The main ones within the English system are: * Obiter dicta statements by a higher ranking court, e.g. the Court of Appeal following obiter dicta of the House of Lords in R V Howe (1987)

  2. Where judges do not follow precedent (or where they distinguish binding cases on dubious ...

    J's mother sought an order compelling the doctors to give "all available treatment" to preserve his life, but the Court of Appeal refused to make such an order. Lord Donaldson MR said it would be an abuse of power for the court to order a doctor to carry out treatment which he believed contrary to his duty to his patient.

  1. Common Law, the Doctrine of Precedent and Statutory Interpretation in Australia

    precedent should be a higher court in the same legal system or hierarchy of courts the case is being presented before. This simply means that the doctrine of precedent is restricted by the legal system the court deciding the case is in.

  2. Discuss the operation of the doctrine of precedent in the Australian courts

    > Common law is first made by a court choosing some facts as material and generalizing those facts to make a principle. Because each process is a choice a later court could argue that other facts were equally relevant or other levels of generalization taken.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work