Sources of law
Judicial Precedent
What you need to know
• Stare decisis – stand by what has been decided
• Ratio decidendi - the rule of law on which a decision is based - e.g.
Cunningham
• Obiter dicta- things said by the way – aeroplane scenario in Moloney
• Persuasive precedent - does not have to be followed e.g. decisions of lower
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or foreign courts (Thabo Meli)
Binding precedent - has to be followed
Original precedent - law made as there was no precedent or statute to
follow (Bland)
Distinguishing two cases as not quite the same so the first one does not
have to be followed (Balfour v Balfour, Merritt v Merritt)
Overruling - a previous decision is ruled wrong so can no longer be used as
precedent
Reversing - the result of a case changes as it goes through the appeals
process.
The Hierarchy of the Courts
Courts are usually bound by the courts
above them and those on the same level.
• European Court of Justice
• House of Lords
• Court of Appeal
• Divisional High Courts
• Inferior Courts
House of Lords
The Practice Statement
London Street Tramways
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1966 - Lord Gardiner
Limitations
When has it been used?
Herrington (1972)
Jones v Secretary of State for Social Services
(1972)
• Miliangos v George Frank (1976)
• Pepper v Hart (1993)
House of Lords
The Practice Statement
Criminal cases
• Shivpuri (1986) overruling Anderton v Ryan
(1985)
• R v R (1991)
• R v R & G (2003) overruling Caldwell
• Lord Denning’s unsuccessful campaign to allow
the Court of Appeal to use the Practice
Statement (Broome v Cassell, Miliangos v
George Frank)
Court of Appeal
Young v Bristol Aeroplane Co (1944)
Court of Appeal
• Usually follow own previous decisions
• 3 exceptions – later House of Lords
decision, 2 conflicting decisions, per
incuriam (Williams v Fawcett)
• Extra exception for criminal cases – “in the
interests of justice” - Taylor or Gould
How has precedent been used to
develop the law?
• Law reporting
• Law of Contract (Carlill v The Carbolic
Smoke Ball Co)
• Law of Tort – negligence (Donoghue v
Stevenson), nuisance, trespass
• Criminal law – murder, involuntary
manslaughter, many defences
Advantages and disadvantages of
Binding Precedent
Advantages
• Certainty
• Consistency and
fairness
• Precision
• Flexibility
• Timesaving
Disadvantages
• Rigidity
• Complexity
• Illogical
distinguishing
• Slowness of growth
Possible reform
• Codes of law – but they have their own
problems
• Less rigid precedent
• Prospective overruling
Common mistakes
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Not answering the questions
Confusing the hierarchy of the courts
Not using the source
Not looking at dates or which court is in
application questions
Vagueness
Not using cases
Not knowing the material
How to avoid these mistakes
• Read the questions
• Answer the questions asked
• Use the source
• Use other cases or information
• Balance your evaluation - make sure you
put both sides of an argument
• Revise thoroughly