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Legal Methods and Skills
Student’s Name
Course
Institution
Date
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EXERCISE ONE
The Doctrine of Precedent and Flexibility of Judicial Law Making
Introduction
Judicial precedence the process in which past legal decisions of judges
creates law for future judges to follow in cases where the facts in the two cases
demonstrate sufficient similarity. English precedent is founded on the stare decisis,
which means “stand by what has been said in the past1. This effectively enables the
rules system to be consistent where by similar cases are treated similarly. According
to the doctrine of Stare decisis, precedent must be followed in judicial decisions
among courts regardless of whether it is correct or incorrect2. This has effectively led
to concerns about the inflexibility of the concept of judicial precedence within the
English legal system. This essay evaluates the operationalization of judicial
precedence in the Court of Appeal and UK Supreme Court and its flexibility in cases
where courts want to depart from a previous precedence.
The doctrine of judicial precedence operates both vertically and horizontally.
Vertical stare decisis refer to a court adhering to decisions or precedent from a
higher court3. For instance, when the Court of Appeal applies precedent from the UK
Supreme Court, this demonstrates vertical precedent. Horizontal stare decisis on the
other hand refer to a court adhering to its own precedent4. For instance, when the
Supreme Court defer to its previous decisions in similar cases even if the soundness
of the decision is in doubt, it is said to be applying horizontal precedent. Instances of
horizontal precedent have been prevalent both at the Supreme Court and Court of
1
Duxbury, N., 2008. The nature and authority of precedent. Cambridge University Press
Kozel, R.J., 2017. Settled Versus Right: A Theory of Precedent. Cambridge University Press
3
Ibid., p.23
4
Ibid.
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Appeal levels in the United Kingdom. It is noteworthy that during the tenure of Lord
Denning MR in the Court of Appeal, there was tension with regards to whether the
Court of Appeal should be strictly bound by the decisions of the House of Lords. He
used the “lapsed rule” and “Per incuriam decisions” as strategies to depart from the
decisions of the House of Lords5. For instance, in Broome v Cassell6the judge had
an opportunity to apply the vertical precedent established by the House of Lords in
Rookes v Barnard but instead reasoned that the decision by the House of Lords was
made per incuriam. This means that the House of Lords had failed to consider
authorities or statutes which were critical to the decision of the case. Lord Denning
therefore applied horizontal precedence in this case. Additionally, in R v
Mohammed7, the Court of Appeal preferred horizontal precedent over vertical
precedent when the judges followed the decision by the Privy Council which was
observed to be well considered as opposed to a contrary decision made by the
Supreme Court on a similar case.
Judicial precedence is only operational if the legal reasons for a previous
similar decision are known such that at the end of the cases there will be a
judgement. The judgement will have the facts of the case and the precise words of
the judge as well as the ratio decidendi that effectively creates precedent for judges
to follow in future cases8. This effectively establishes precedent for judges to follow
in future cases and is identified by the lawyers who may have different views on it.
For instance, in Donoghue v Stevenson9, a customer had fallen ill after drinking
spoiled ginger beer which had a dead snail and therefore sued the manufacturer.
5
Finch, E. and Fafinski, S., 2013. Legal skills. Oxford University Press.
Broome v Cassell & Co Ltd [1972] AC 1027
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R v Mohammed [2005] EWCA Crim 1880 Court of Appeal
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Finch, E. and Fafinski, S., 2013. Legal skills. Oxford University Press.
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Donoghue v Stevenson [1932] UKHL 100
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Effectively, the ratio decidendi applied to the part that read “a person owes a duty of
care to those who he can reasonably foresee will be affected by his actions.” This
effectively led to notable developments to the law of negligence.
There are three types of precedent including the initial precedent, binding
precedent and persuasive precedent. The initial precedent is the new precedent that
is to be established since there is no previous decision that the judge can follow.
Effectively, the judge will give reason for decision by analogy and a new set of ratio
decidendi to be followed in future cases is established. The Donoghue v Stevenson10
decision exemplifies this type of precedent. The binding precedent on the other hand
relates to situations where the present case must follow the prevision decision in a
similar case and especially if the previous decision was made by a higher positioned
court or a court in the same level11. Persuasive precedent is sourced from treaties,
decisions from Privy Council and law review articles and it is more flexible and nonbinding.
The doctrine of precedence has been considered to be too rigid. However, the
rigidity was eliminated with the issuance of the Practice Statement12 that allowed the
court to depart from previous decisions under special circumstances. Finch and
Fafinski13 note that “the practice statement gave the House of Lords sufficient
flexibility to deal with novel situations and to ensure justice in each case.”
Additionally, Duxbury14 argues that the House of Lords’ Practice Statement was
informed by the recognition of the fact that in as much as the law ought to be certain,
10
Ibid.
R v Mohammed Op. Cit.
12
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
13
Finch and Fafinski p.137
14
Duxbury, p.160
11
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the achievement of certainty through the doctrine of precedent should not be at the
expense of flexibility and constitutionality of the law. Consequently, legitimate judicial
law marketing must be coherent and rationally structured. As the doctrine of
precedent provides the foundation for the coherence and structure of the judicial law
making process, it is important that the structure allows for flexibility to promote
constitutionalism and justice.
Conclusion
The doctrine of precedent in the English law is founded on the Latin principle
of stare decisis. The Court of Appeal and UK Supreme Court have practised the
doctrine of precedent vertically or horizontally based on existing knowledge of the
legal reasons for previous similar decisions. However, following tension between the
Court of Appeal and the House of Lords during Lord Denning’s time at the Court of
Appeal; and the inflexible nature of the doctrine of Precedent, the House of Lord
published the Practice Statement thus injecting some level of flexibility in case law
making. Courts can now depart from previous precedent if there is a justifiable need
to do so.
EXERCISE TWO
Question and Answers
1. Name the judges hearing the case in the Court of Appeal.
The judges hearing the case in the Court of Appeal were Sir Terence Etherton
MR, Lord Justice Underhill and Lord Justice Bean.
2. Provide the date of the judgment in the Court of Appeal.
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The Court of Appeal judgement was delivered on 19th December, 2018.
3. Provide the names of the barristers and solicitors representing the first and
second and the third respondents.
Jason Galbraith-Marten QC and Sheryn Omeri were instructed by Bates Wells
and Braithwaite LLP to represent the First and Second Respondents while Thomas
Linden QC was instructed by Leigh Day to represent the Third Respondents.
4. At para 9.of the judgment of Sir Terence Ertherington MR and Lord Justice Bean
they set out the core issue of the case, which had been summarised by the
Employment Tribunal (ET) at a preliminary hearing. What was the core issue?
The core issue as identified by Sir Terence Ertherington MR and Bean LJ was
to whether the claimants who were the respondents in the case at the Court of
Appeal are “workers” for the purposes of the different definitions under the domestic
legislation.
5. The appellants in this case were represented by the barristers Dinah Rose QC
and Fraser Campbell. Both of these barristers have a web site. Choose one of
them and provide the URL for the site, and briefly discuss any one feature of the
web site. For example, this could be a reference to a case they have appeared
in.
https://www.blackstonechambers.com/barristers/fraser-campbell/
In the “News” section of Fraser’s website, there is listed one of his latest
achievements in the Barnardo v Buckinghamshire15 case in which he was
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Barnardo’s v Buckinghamshire [2018] UKSC 55
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representing the Beneficiaries who had resisted the appeal. In this case, the
Supreme Court collectively rejected an appeal by the employer against a ruling that,
on the basis of the pension scheme’s rules, trustees were unable to switch to CPI
indexation from RPI even though RPI is a published index.
6. At para.105 of their judgment Sir Thomas Etherington MR and Lord Justice
Bean state that the differences between themselves and Underhill LJ, on the
main issue turn on two broad matters. What were the two broad matters they
identify?
Sir Thomas Etherington MR and Lord Justice Bean state that the difference
between themselves and Underhill LJ on the main issue turn on a matter of law and
a matter of fact. On the matter of law, the two judges focus on the extent to which
Autoclenz allows the court to disregard written contractual terms which do not
suggest what rational individuals would believe to be the reality. On the matter of
fact, the two judges focus on the question of what rational people who deem to be
the reality of the real working relationship between Uber and its drivers.
7. Provide the OSCOLA reference, as it would appear in a footnote, for the neutral
citation, and citation to the ALL England Law reports, for the UK Supreme Court
in the leading case of Autoclenz v Belcher.
Autoclenz Ltd v Belcher & Ors [2011] UKSC 41
8. Underhill LJ delivers a dissenting judgment. What do you understand by the
term a ‘dissenting judgment’?
A dissenting judgement or opinions is a judgement that is written by a judge or
judges in a legal case expressing their disagreement with the majority decision on
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the case16. The dissenting judges must express their reasons for disagreeing with
the ruling.
9. Underhill LJ refers to an article by Sir Patrick Elias in his judgment. Provide the
OSCOLA reference to this article.
Elias P, 'Changes and Challenges to the Contract of Employment' [2018] 38 OJLS
869
10. In his judgment Lord Underhill at para.166 considers a body to be better placed
to assess the issues he has identified in his judgment than the Courts. What
body is he referring to?
In his dissenting opinion at paragraph 166, Underhill LJ argues that the issues
raised are quintessential policy issues and therefore recommends that Parliament is
best placed to access them than the Courts17.
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17
Finch, E. and Fafinski, Op. Cit. p.114
Uber BV v Aslam and others [2018] EWCA Civ 2748
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Bibliography
Barnardo’s v Buckinghamshire [2018] UKSC 55
Broome v Cassell & Co Ltd [1972] AC 1027
Donoghue v Stevenson [1932] UKHL 100
Duxbury N, The Nature And Authority Of Precedent (Cambridge University Press
2008)
Elias P, 'Changes And Challenges To The Contract Of Employment†' (2018) 38
Oxford Journal of Legal Studies
Finch ES Fafinski, Legal Skills (Oxford University Press 2013)
Kozel R, Settled Versus Right: A Theory Of Precedent (Cambridge University Press
2017)
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
R v Mohammed [2005] EWCA Crim 1880 Court of Appeal
Uber BV v Aslam and others [2018] EWCA Civ 2748