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What is the doctrine of precedent

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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.

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.

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.

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