The binding force of a precedent depends on the hierarchy of courts. Some courts have greater authority than others. This affects the importance of the precedents laid down by each. The most powerful court in England is the House of Lords. Since 1966, following the statement by Lord Gardiner, the general rule that governs the standing of the decisions made by the court is that every higher court binds the lower courts.
The House of Lords(HL) binds all other lower courts. It should continue to follow its own rulings but it need not follow its own previous decisions when it appears right to do so. For example, if the previous decision is based on out-dated circumstances or generally criticized as unfortunate, it will not be followed.
Next, we have the Court of Appeal(CA). It is bound by HL but binds the High Court, county courts and divisional courts. In the Civil Division, its decisions are binding on all High Court judges trying civil cases and on all county court judges. It also binds itself. This is so unless there are two conflicting decisions where it can choose to follow one of them. Also, when previous decisions conflict with a later HL judgment. In addition to that, a previous decision given in per incurium is not binding. (Per incurium means lack of care because of some relevant statute or precedent not brought before the court.)
The Criminal Division in CA is somewhat the same as in the Civil Division. It binds the Crown Court and the magistrates’ courts. Normally, the court follow its own decisions. The exception is when the decision made would cause an injustice to the appellant . The reason being that where human freedom is at a stake, the need for justice exceeds the desire for certainty.
Divisional Courts of the High Court are bound by their own decisions and by the decisions of the HL and CA. The Queen’s Bench Divisional Court binds the magistrates’ courts but not the Crown Court(Colyer,1974).
The decisions by the judges in the High Court do not bind other High Court judges. They bind county court judges and all the other inferior courts. In practice, the High Court judges usually follow each other, preferring the matter be taken to appeal if the rule laid down is doubtful. If the court is faced with conflicting judgments, they can be subjected to silmutaneous approach and the CA can dispose of both appeals as it thinks fit. If not, the subsequent judges are bound to follow the second decision(Colchester Estates v Carlton Industries, 1984).
The Magistrate court and the County court are the lowest in the court system. They are less authoritative and their decisions are rarely reported. Therefore, their decisions do not bind other courts but they are bound to follow the decisions of the higher courts.
A binding precedent is to be followed whether it is in sympathy with the decision or not. Each court has to decide for itself whether there is a precedent binding in the cases given and covering the cases given. Where there is a case to be decided is one that is without a precedent, the judge must decide it according to general principles of the law. By doing so, the judge lays down as original precedent which would then be used in subsequent similar cases.
Generally, it is important that a precedent is followed even if the judge thinks that it is wrong. This is to provide a certain degree of uniformity upon which individuals can rely. It allows them an idea of their standing in the legal position before approaching the court. It is a guideline to the judges and it can prevent judges from making undue mistakes. A precedent is not based on very strict facts, it is flexible and a general ratio decidendi may be extended to a variety of factual situations. For example, the case Donoghue v Stevenson(1932) where the “neighbourhood test” is laid down regarding negligence. It is stated that a duty not to be negligent is owed to a person whatever the circumstances. Therefore, practicality of the precedent is also another reason to follow it. It is convenient and time saving. The rules are laid down in the course of dealing with cases and it is not attempted to deal with future hypothetical circumstances.
The judge can only break away from following the decisions of a previous case if he can find a material difference between the two cases. Every judgment contains findings of facts, statements of law and finally, the decision. So, if a judge can find a difference in the material, a different judgment is obtained and the previous decision need not be followed.
However, it has been criticized that the system of precedent is rigid. The discretion of the judge is restricted by the rule that he have to follow the decisions of his predecessors. Also, there is a danger of illogicality. Judges may be tempted to draw very fine distinctions in order to avoid following the decision and thus, introducing an element of artificiality into the law. Being over-subtlety sometimes result in finding reasons for not following the existing precedent too, which can cause certain hardship and come into conflict . Another disadvantage is the bulk and complexity of precedents. There is so much law and no one can learnt them all. Furthermore, much of the English law reports is dated back to the Middle Ages. In addition, this system depends on litigation for the rules to emerge and thus, rather slow in growth to meet modern demands.
Despite the disadvantages, precedent is still a very important source of law. A judicial precedent is expected to be followed in every case even it is thought not right. However, it can sometimes lead to injustice in a particular case and unduly restrict the proper development of the law to meet the new needs of society. Therefore, judges of the superior courts may , on appeal, overrule a decision. They can also reverse a decision or disapprove of the previous decision. Sometimes, alteration can only be made by a statute which reshape the previous laws to meet the changing conditions of men and women.
Hence, recent years, judges jurisdiction over the common law and equity has given to some notable developments. For example, Lord Denning’s judgment in Central London Property Trust v High Trees House(1947), where the equitable estoppel was raised. Then , there is the case of Miliangos v George Frank Textiles(1976), where the House of Lords effected a major reform that courts’ judgment in the future can be expressed in foreign currency.
In conclusion, the question of whether a judicial precedent must be followed if a judge thinks that it is wrong depends on the circumstances of the case. The outstanding characteristic of English law is that it is largely ‘judge made’. They are created as cases are dealed with over time. Therefore, some precedents may subjected to changes after a certain period. So, when there is a very reasonable and strong reason, only a judge from the House of Lords can choose not to follow the previous decisions. Judges from other lower courts who wish not to follow can appeal to the higher courts to do so, whereby either a reversal or a disapproval occurs. Nevertheless, it must be emphasized that as far as possible, the judicial precedent must be followed.
Bibliography
General Principles of English Law -- P.W.D.Redmond(4th edition)
The English Legal system -- A.K.R.Kiralfy(5th edition)
LAW Made simple -- C.F.Padfield
“A” Level English Law -- R..S.Sim and D.M.M.Scott(4th edition)