1.1.5
Judicial Precedent
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Doctrine of Judicial Precedent
Parts of Judgement
Types of Judicial Precedent
Hierarchy of courts
Supreme Court & Practice Statement
Court of Appeal and exceptions
Avoidance techniques
Judicial Precedent : Introduction
• Decision of judges creates law for other judges to follow in future
cases
• Source of law : case law
• Once a decision is made on how the law applies to a particular set of
facts- similar facts in a later cases should be treated the same way.
• Helps the development of common law
Doctrine of Judicial Precedent
Based on the Latin maxim –
STARE DECISIS ET NON
QUIETA MOVERE
Literal : ‘stand by what has
been decided and do not
unsettle the established’
When a court makes a decision in a case then any courts which
are equal or lower status must follow that previous decision if
the case before them is similar to that earlier case.
Judge will give their decision by
interpreting the parliamentary law
OR decide a rule when there is no
parliamentary law.
When decisions were reported, can
be referred by other judges.
If the later case uses the similar facts
or rules, then the judge can follow
the earlier rules.
RATIO DECIDENDI
The reason / rationale for the decision
OBITER DICTA
That which is said in passing/ other
things said / BTW
PARTS OF
JUDGEMENTS
RATIO DECIDENDI
• Definition : Sir Ruppet Cross – ‘… any rule
expressly treated by the judge as a necessary
step in reaching his conclusion.’
• In the judgement - judge will give decision
and legal reason for that decision.
• Appeal cases : more than one judge ( who
will have different reasoning for the
decision); lawyers and judges can choose
which one they would like to refer.
• How to find ?
 read the entire judgement
 Distinguish the material facts from unimportant
facts
Judgement
• Summary of
facts
• Arguments by
counsels
(review)
• Principles of
law being
used to decide
Also known as
ratio decidendi
(reason for
deciding)
Creates a
precedent for
judges to follow
OBITER DICTA
• The remainder of the judgement
• Judge in future case do not have to follow it
• Remarks of a judge which is not necessary in reaching a
decision (comments, thoughts, illustration)
• Judge will speculate – what the decision would have
been if the facts of the case had been different –
hypothetical situation – may be considered but NOT
binding.
• Need to differentiate the ratio decidendi and obiter dicta
– look at the full case
DPP v Smith [2006] QBD
FACTS : DF cut off his ex partner’s pony tail. Magistrate – no actual bodily harm. DPP appealed to Queen’s Bench
Division.
HELD : cutting off a person’s hair amounted to actual bodily harm. Harm not limited to skin, flesh and bones and
extended to hurt and damages.
OBITER : if paint or some other unpleasant substances were to put on a victim’s hair that would to could
amount to actual bodily harm.
Law reporting
• Judges in future case need to refer the
past judgement in order to apply the
precedent thus, they need an accurate
record of what those decision were.
• Written reports – exist since 13th
century ( it even become a business –
thus affecting the quality)
• Incorporated Council of Law Reporting
(1865) was created – reporting has
been controlled by the courts –
accurate.
BINDING PRECEDENT
TYPES
ORIGINAL PRECEDENT
PERSUASIVE PRECEDENT
BINDING PRECEDENT
Lower courts
Precedent from an earlier
case MUST be followed by
Same level courts
Original precedent
• When the point of law in a case has never been decided before, then the judge’s
decision will form a new precedent.
• When no past case for the judge to base his decision on, they will refer to the
previous case that are the closest in principle = reasoning by analogy.
• Analysis : judge is only declaring the law ( they do not create law) VS judge have a
law making role (when there is a new point, judge is creating new law)
Urquart and Others v Tate Modern (2020)
Residents of an apartment adjacent to a museum claimed that their enjoyment of their premise was
being interfered (visitors in the museum looked into their home. COA shall decide whether the alleged
intrusion amounted to a nuisance in law (set a precedent as no one was successful in the claim before).
‘… preferable to leave it to the Parliament to formulate any further laws that are perceived to be
necessary to deal with overlooking rather than to extend the law of private nuisance…’
Donoghue v Stevenson [1932] A.C. 562
FACTS : Pf’s friend drank half bottle of a ginger beer bought by her friend from café. She poured half bottle into a
tumbler and found remains of snail in it, suffered from shock and severe gastro –enteritis. She sued Stevenson
(manufacturer).
HELD : the law of negligence was very narrow (can be invoked only if there was some contractual relationship). In
this case, it was read broadly. Manufacturers owe a duty to the consumers who they intend to use their products.
Persuasive precedent
• Precedent is not binding on the court BUT the judge may consider it, decide it is a correct principle and be persuaded that
it should be followed.
Source of persuasive precedent
Courts lower in the
hierarchy
R v R (1991)
HOL (SC) agreed & followed (persuaded) the reasoning of COA in deciding that man could
be guilty of raping his wife.
Decisions of Judicial
Committee of the Privy
Council
This court is not part of the court hierarchy in England & Wales – so decision is not
binding,BUT its judges are also members of the SC – respect the law and often followed.
AG for Jersey v Holley (2005) – A landmark case where the Privy Council declared that
they were announcing the law applicable not only to Jersey but also to England and
Wales( PC decisions are not generally considered binding in English law but mere
persuasive authority)
James v Karimi (2006) – COA relied on PC decision in Holley.
Statements made obiter
dicta
R v Howe (1987) – HOL : duress could not be a defence to a charge of murder. Judge
commented (obiter) – duress also not a defence for someone charge with attempted
murder
R v Gotts (1992) – COA – used the obiter statement
R v Smith (2006)
Dissenting judgement
When one judge (among majority) disagreed – explained their reasoning. If the case goes
to appeal OR new case on the same point goes to SC it is possible that the SC may prefer
the dissenting judgement
Decision of courts from
another country
Other country uses the same ideas of common law as in the English legal system.
Commonwealth countries such as Canada, Australia and New Zealand
Hierarchy of the courts
Why is it important?
Rigid doctrine of judicial precedent ;
 Every court is BOUND to follow decision made by the superior court
 Appellate courts – bound by their own past decisions.
CIVIL CASES
CRIMINAL CASES
Supreme Court (2009)
(formerly known as House of Lords)
Supreme Court (2009)
Court of Appeal
(Civil Division)
Court of Appeal
(Criminal Division)
King’s Bench Divisional Court
High Court
County Court
Crown Court
Magistrates’ Court
Appellate Courts
• hear appeals from lower
courts (point of law)
• They decide on the law
Supreme Court
• Highest court (civil &
criminal) & its decision
binds all other lower
courts
• They are bind by their
own decision
(subjected to Practice
Statement)
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•
Court of Appeal
Two division ( criminal &
civil)
Bound by Supreme Court
Its decision bind all lower
courts
They are bind by their
own decision ( subject to
exceptions)
Divisional Courts
• King’s Bench, Chancery
and Family
• Bound by SC & COA
• Bound by their own
decision (exceptions)
• Appeals from Magistrate
Court
Courts of first instance
• Original trial held
• Must follow higher court’s
precedent
High Court
• Bound by decisions of all
the courts above it
• Bind lower courts
Inferior Courts ( Crown
Court, County Court and
Magistrate’s Court)
• Bound to superior courts
• Cannot form binding
precedent
• Exception : A point of law
in Crown Court binds the
Magistrates Court
Supreme Court & Practice Statement
• Until 1966 – HOL is bound by its own previous decisions.
London Tramways Co. Ltd v London County Council [1898] AC 375
"a
decision of this House once given upon a point of law is conclusive upon this House
afterwards, and that it is impossible to raise that question again as if it was res integra and
could be reargued, and so the House be asked to reverse its own decision. That is a principle
which has been, I believe, without any real decision to the contrary, established now for some
centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and
for counsel to reargue a question which has been recently decided.
= certainty in law is more important than the possibility of individual hardship. It is completely
bound by its own decision unless they had been made per incuriam (through lack of care).
• In 1966, Lord Chancellor issued a Practice Statement –HOL is bound
by its own decision, but they can depart when appears right to do so
(justify).
Practice Statement [1966] 3 All ER 77
Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is
the law and its application to individual cases. It provides at least some degree of certainty upon which
individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal
rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a
particular case and also unduly restrict the proper development of the law. They propose, therefore, to
modify their present practice and, while treating former decisions of this House as normally binding, to
depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which
contracts, settlements of property and fiscal arrangements have been entered into and also the especial
need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House.
British Railways Board v Herrington [1972] AC 877
FACTS : A boy suffered injury when he wondered from a play park onto a live railway line. The railway line
was surrounded by a fence however, part of the fence had been pushed down and the gap created (used as
short cut to park. DF was aware but did not fix it.
ISSUE : Under Addie v Dumbreck it was held no duty of care was owed to trespassers.
HELD : Depart from previous decision (1966 Practice Statement) & held DF did owe a duty of common
humanity to trespassers.
Milliangos v George Frank (textiles) Ltd [1976] AC 433
Overruled Re United Railways of the Havana & Regla Warehouse Ltd (courts could only award damages in
Sterling in an English civil damages)
HELD : courts could award damages in currency of any foreign country specified in the contract ( change in
foreign exchange conditions and especially the instability of sterling since 1961.
Knuller v DPP
Our change of practice in no longer regarding previous decisions of this House as absolutely binding does
not mean that whenever we think a previous precedent was wrong we should reverse it. In the general
interest of certainty in the law we must be sure that there is some very good reason before we so act.
The use of practice statement was transferred to the Supreme Court when it replaced HOL in 2009 through
Constitutional Reform Act 2005. Court affirmed in the case of Austin v London Borough of Southwark
(2010) that Practice Statement applies to Supreme Court
Practice Statement in criminal law
• In criminal law – the rules and law shall be certain
• Only when they are sure that an error may have been made
previously and it is important to put the law right - the past case will
be completely ignored.
R v R and G (2003)
Overruled to test used in R v Caldwell ( recklessness included the situation where the defendant had
not realized the risk of their action causing damage, but an ordinary careful person would have
realized there was a risk – objective test)
HELD : DF is only reckless if they realise that there is a risk of damage and go ahead and take that risk
(subjective test)
Court of Appeal & Exceptions
• Bound by the decisions of superior courts and bind all lower courts.
Young v Bristol Aeroplane [1944] KB 718,CA
Court of Appeal are bound by its own decision BUT 3 exceptions that allow the Court of Appeal to depart
from a previous decision;
i. Where its own previous decisions conflict. The COA must decide which to follow and which to reject
ii. Where there is a decision by Supreme Court that overruled the COA decision – must follow the decision
of SC
iii. Where earlier decision was given per incuriam (by carelessness, mistake or error)
Wiliams v Fawcett (1986)
The COA refused to follow a previous decision of its own as the previous decision was based on a
misunderstanding of the County Court rules dealing with procedure for committing to prison those who
break court undertaking.
R v Cooper (2011)
Per incuriam can cover situations apart from failure to take into account an Act of Parliament.
Additional exceptions
• Human Rights Act 1998 – Section 2 (1)(a) – must take into account ECHR
Re Medicaments (No. 2) Director General of Fair Trading v Proprietary Association of Great Britain
COA refused to follow HOL decision ( R v Gough) because it was lightly different from the decision of the
European Court of Human Rights.
• Criminal law – can refuse to follow its previous decision if the law has been misapplied or
misunderstood. ( refer R v Taylor (1950).
• Five judge panel of the COA can exercise discretion to depart from an earlier decision of
a three judge panel when it overruled the decision of three judge panel – claiming
previous decision was misunderstood or misapplied – R v Simpson
• BUT R v Magro - R v Simpson had not given it the right to overrule a decision of a three
judge panel.
Overruling
Avoidance techniques
Distinguishing
Reversing
Avoidance techniques : Overruling
• When the court in latter case states that the precedent decided
earlier is WRONG
• Higher court may overrule lower court decision
Practice Statement
Supreme Court can use the Practice Statement to overrule a past decision of its own
Pepper (Inspector of Taxes) v Hart [1992] 3 WLR 1032
HOL overruled its earlier decision (Davis v Johnson).
Ruled that Hansard could be consulted when trying to decide what certain words in an Act
of Parliament meant.
Avoidance techniques : Distinguishing
• By analyzing the material facts.
• Judge can find a material fact of the present case are sufficiently different to
allow a distinction to be drawn between the present case and the previous
precedent.
Merritt v Merritt [1970] 1 WLR 1211
FACTS : Breach of contract (parties were husband and wife).
ISSUE : Previously, in Balfour v Balfour, court decided it is not a legally binding contract (because there is no
intention to create legal relation) BUT merely a domestic arrangement between husband & wife.
HELD : Material facts distinguished. The parties (Merrit couple) were estranged when the agreement is made in
writing. The agreement was a legally enforceable contract.
Avoidance techniques : Reversing
• When case goes to appeal – the higher court can overturns the
decision of the lower court.
• Example : High Court finds X guilty of an offence. X appeals to COA. At
the end, the COA reverse the HC decision and finds X not guilty.
R v Kingston[1994] 3 WLR 519
FACTS : DF was accused with homosexual paedophilic tendencies – he was drugged and performed various
acts with a 15 yo boy.
= convicted of indecent assault during trial, then COA reversed it and state he cannot be blamed for an act
done while he was drugged , FINALLY HOL reversed COA decision – drugged intent is still a criminal intent
Evaluation
i.
ii.
iii.
iv.
v.
vi.
vii.
Advantages
Certainty – people will be aware of
how the law works
Flexibility – judicial decision can
change quickly (compared to
Parliament) and it can reflect the
current trend
Fairness – cases with similar facts
are treated similarly
Consistency – among similar cases
Time saving
Law reflects the reality (based on
true incidents)
Predictable
Disadvantages
i. Unconstitutional – judge allowed to
make or change law
ii. Rigidity – strict adherence can
make the law stagnant, not
developed
iii. Law cannot be developed – unless
a peculiar case arise
iv. Difficulty to find suitable cases
v. judge will always follow the
previous decision without thinking
other solution based on the current
circumstances
vi. Expensive – need to go to HOL to
make changes in law.