Describe how the doctrine of precedent operates in English law. Illustrate your answer with cases.

Judges will not only state the ratio decidendi in their final judgement, they may also speculate what the outcome of the case would have been if the facts were slightly different. These comments are called obiter dicta (comments made 'by the way'). An example of this is Rondell v Worsley (1969), in this case a barrister was being sued for negligence. The ratio decidendi of this case was that a barrister is immune from being sued for negligence when acting as an advocate, the judge went on to speculate the outcome if it was a solicitor was being sued. The obiter dicta comment made by this judge became a persuasive precedent and was later used in Sait Ali v Mitchell (1972). In this case a solicitor was being sued for negligence and the court decided to follow the obiter dicta comments made in Rondell v Worsley. The ratio decidendi of this case was that a solicitor when acting as an advocate is immune from negligence. This became a binding precedent.

For the precedent system to work to things are vital, accurate law reporting and a stable court structure. Records of decisions made by judges in the superior courts must kept up until 1865 law records were kept privately. The Incorporated Council of Law Reporting controls all reports published since 1865, an example being the Weekly Law Reports which was started in 1953. The Judicature Acts established the court structure in 1873-75. Decisions of higher courts are binding on all courts below them, higher courts are generally bound by their own decisions, although the House of Lords is exempt from this rule. The European Court of Justice is the highest court but only hears matters of European law. The House of Lords is directly below that and is the top English court, its decisions are binding on all lower courts. The House of Lords only hears appeal cases. The next court is the Court of Appeal, this court also hears appeal cases only. The Court of Appeals decisions are binding on itself and all courts below, its decisions are only persuasive on the House of Lords. The Court of Appeal is split into two sections, the civil division and the criminal division. The next court down is the Higher Court this court hears appeals and first judicial cases, its decisions are binding on all lower courts and persuasive on the higher courts. The court structure then splits into two sections civil and criminal. The civil division contains the County court and Magistrates, the criminal contains the Crown court and Magistrates.

Binding precedents must be followed, and persuasive precedents may or may not be followed. Persuasive precedents come in many forms. Obiter dicta are not binding they are persuasive. Dissenting judgements are also persuasive precedents. Dissenting judgements are the decisions given by minority judges. Decisions of lower courts also form persuasive precedents, for example the decisions of the Higher courts is persuasive on the Court of Appeal and House of Lords. Decisions of courts in other countries also form persuasive precedents such as America, but especially decisions of courts in Commonwealth countries. Decisions of the Judicial Committee of the Privy Council, which hears appeals from Commonwealth countries, are very persuasive.

Sam Wright