One of the fundamental rules of stare Decisis is that the high courts take priority of the lower courts. Higher courts such as the HOL can tell lower courts what to do.
The higher court has more senior and powerful judges sitting in it who can give orders and exert influence.
The civil court system is organized with the most powerful court, the European court of justice, at the top and the most junior court, the county court at the bottom.
In the civil system cases begin either in the county court or the high court, depending on the amount of money involved and the parties in involved etc. The actual case is normally about who did what to whom, or how much A owes B. The case does not normally contest the validity of the law it just looks at the facts of the argument.
If when the decision comes the loosing party does not the result or disputes the fairness of the law it can go to appeal. This begins what can be lengthy and very expensive process. Normally only the rich or those backed by an organisation such as Union or professional will do this.
Appeals where precedent is most likely to be set. An appeal from the county court of high court can go to the court of appeal or eventually to the judicial committee of the HOL, whether a case becomes a precedent depends on two things, the existence of a dispute over a point of law between two contesting legal parties and the ability and the desire of both parties to pursue the matter further, if this is not the case, the legal point is not clarified and lives to be heard another day.
Inferior courts are those below the high court level. They cannot establish precedent. They follow the rulings of the courts above them. The court of appeal civil and criminal are bound by their previous rulings to an certain extent. A ruling in young v Bristol aeroplane company led to a certain degree of flexibility.
The house of lords is the highest court that sits in the UK. It sets precedent for all courts below it when dealing with English law. It does not always have to follow its own previous decision since the practice statement 1966 which allowed it some flexibility I this area.
Binding Precedent is an precedent from an earlier case which must be followed even if the judge does not agree.
Persuasive precedent is a precedent that is not binding on the court but the judge may consider it and decide that is a correct principle so he is persuaded he should follow it.
If judicial precedent id to be effective, judges need information on previous relevant cases. They can find this from the council of law reporting, reports of cases published by private companies, LEXIS and the internet.
Overruling means that the highest court creates a different legal ruling to one made by previous lower courts. The later case is looked at in different way and the precedent set in earlier case is set aside. The HOL can also set aside its own precedent. This was made possible by the practice statement. Overruling involves; two case, earlier decision on first case discredited by second case and higher court involved in decision to change precedent.
If an appeal court disputes a decision made in a lower court on a particular case, it is known as reversing. Reversing involves; One case, Goes to appeal and the court throws out earlier decision.
If a judge wants to avoid binding precedent set by an earlier case they can try to argue that the facts in the two cases were different. The judge tries to distinguish between the two. This involves; two cases, judges does not want to follow precedent set in earlier one and judges claim the two cases are too different from each other to allow one case to set precedent in other case.
Advantages of precedent
- Fairness - each case is treated the same if the facts are close enough to each other.
- Consistency - There is consistency between cases that strengthens the system and also allows for some prediction of the result.
- Saving time - The system Saves time for all those involved in the case. The arguments have already been analysed and decided upon.
- Sources of law - Precedent produces a valuable source of law within which legal personal can operate. It provides a foundation for the legal system and is particularly useful for training lawyers.
- Real life - case law is real life. Law that comes from this source is not subject to problems of drafting, which often occur with parliamentary legislation.
- Inflexibility - instead of looking at each case afresh, Previous decisions have to be used. This might reduce freshness with which case is looked at.
Disadvantages of precedent
- Ridgity
- Complexity
- Illogical distinctions
- Slowness of growth
