The system of judicial precedent permits both flexibility and flexibility in the law.
Charlotte Harvey
The system of judicial precedent permits both flexibility and flexibility in the law.
When judges make a decision in court, they must, to a certain extent, follow previous decisions. This allows stability in the law; people know where they stand.
Originally it was viewed that the House of Lords could over rule its own decisions i.e. the law was flexible according to individual cases. But gradually over the 19th century this approach disappeared, and after the London Street Tramways v London County Council 1898, the HOL regarded themselves as being completely bound by their own decisions. It was held that certainty in the law was more important than the possibility of individual hardship caused through having to follow a past decision. In the judgement of the Tramways case the Earl of Halsbury LC questioned the possibility of raising a case time and time again and bringing separate judgements, and that 'there could be no finis litium if it were possible to suggest that in each case that it might be re-argued, because it is 'not an ordinary case' whatever that may mean'. The HOL could only move from a past decision if it had been made per incuriam that is in error, if a decision had been made without considering the effect of a relevant statute.
Although the precedent system was advantageous in terms of certainty, consistency and precision, the law had now become very rigid.
This rigidity, although providing certainty, could sometimes lead to injustice. Judges were often forced illogically to make a wrong decision in a case because the law said they had to. Lord Denning on the subject of precedent in the Court of Appeal says 'This court has no option but to continue the error and leave it to be corrected by the HOL ... the HOL may never have the opportunity to correct the error and thus it may be perpetuated indefinitely, perhaps forever.' Although previously I was referring to precedent in the HOL and this is the CA, Lord Denning's words still apply, perhaps to a greater extent, especially as from the time of the Tramways case up until 1973 (when the European court of justice became the most superior court in our country) the HOL was the last opportunity when striving for justice. There was no chance to correct an erroneous decision or adapt the law to changing social circumstances and opinions.
The system of judicial precedent permits both flexibility and flexibility in the law.
When judges make a decision in court, they must, to a certain extent, follow previous decisions. This allows stability in the law; people know where they stand.
Originally it was viewed that the House of Lords could over rule its own decisions i.e. the law was flexible according to individual cases. But gradually over the 19th century this approach disappeared, and after the London Street Tramways v London County Council 1898, the HOL regarded themselves as being completely bound by their own decisions. It was held that certainty in the law was more important than the possibility of individual hardship caused through having to follow a past decision. In the judgement of the Tramways case the Earl of Halsbury LC questioned the possibility of raising a case time and time again and bringing separate judgements, and that 'there could be no finis litium if it were possible to suggest that in each case that it might be re-argued, because it is 'not an ordinary case' whatever that may mean'. The HOL could only move from a past decision if it had been made per incuriam that is in error, if a decision had been made without considering the effect of a relevant statute.
Although the precedent system was advantageous in terms of certainty, consistency and precision, the law had now become very rigid.
This rigidity, although providing certainty, could sometimes lead to injustice. Judges were often forced illogically to make a wrong decision in a case because the law said they had to. Lord Denning on the subject of precedent in the Court of Appeal says 'This court has no option but to continue the error and leave it to be corrected by the HOL ... the HOL may never have the opportunity to correct the error and thus it may be perpetuated indefinitely, perhaps forever.' Although previously I was referring to precedent in the HOL and this is the CA, Lord Denning's words still apply, perhaps to a greater extent, especially as from the time of the Tramways case up until 1973 (when the European court of justice became the most superior court in our country) the HOL was the last opportunity when striving for justice. There was no chance to correct an erroneous decision or adapt the law to changing social circumstances and opinions.
