THE DOCTRINE OF
PRECEDENT
Unit 5
Preview
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Common law: precedent
Hierarchy of English courts
Stare decisis
Ratio decidendi
Obiter dicta
Distinguishing, overruling and reversing
Law reports
Legal terms
Exercises
Common law
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Consists of substantive law and procedural
rules that are created by the judicial
decisions made in the courts
Although legislation may override such
decisions, the legislation itself is subject to
interpretation and refinement in the courts
Precedent
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A judgement or decision of a court,
normally recorded in a law report, used as
an authority for reaching the same
decision in subsequent cases
The Hierarchy of English Courts
(House of Lords†)Supreme Court
Court of Appeal,
Criminal division
Court of Appeal,
Civil Division
Crown Court
High Court
Magistrates Court
County Court
Civil cases
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European Court of Justice
The Supreme Court
Court of Appeal (Civil Division)
High Court
County Court
(Magistrates Court)
Criminal Cases
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European Court of Human Rights
The Supreme Court
Court of Appeal (Criminal Division)
Crown Court
Magistrates’ Court
Court of Justice of the EU
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Decisions of the Court of Justice of the EU:
binding on all other courts in Member States
The Supreme Court
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Practice Statement (1966): The House of
Lords (since 2005: the Supreme Court) no
longer bound by its past decisions
Courts of Appeal (Criminal and
Civil Divisons)
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Bound by decisions of the Supreme Court
bound to follow past decisions of their
own, with limited exceptions
The High Court
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Divisional courts: 1. Queen’s Bench Division
(criminal appeals and judicial review), 2.
Chancery Division and 3. Family Division
Bound by the Court of Appeal and the Supreme
Court
Civil divisional courts – bound by their previous
decisions
Queen’s Bench Division – more flexible
The Crown Court
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Bound by all the courts above it
Its decisions do not form binding
precedents
Not bound by its own decisions
Magistrates’ and county courts
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Inferior courts
Bound by the High Court, Court of Appeal
and the Supreme Court
Their decisions - not reported and cannot
produce binding precedents, or even
persuasive ones
Not bound by their own decisions
Stare decisis
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Stare decisis (et non quieta movere)
= stand by things decided (and do not
unsettle the established)
Supports the idea of fairness and provides
certainty in the law
Stare decisis
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The principle of binding precedent:
decision of a higher court is binding on a
lower court, i.e. the decision must be
followed, and in the course of a trial the
judges must refer to existing precedents
Stare decisis
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Judges will consider decisions made in a
lower court, but they are not bound to
follow them
A rule set by a court must be applied if it
is to the point – relevant or pertinent
Ratio decidendi
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A case involves many facts and issues of
evidence
The decision itself does not actually set
the precedent
The precedent is the legal principle which
the judge relied on in determining the
outcome of a case
Ratio decidendi:
“the reason for deciding”;
The basis for a precedent
 The principle or rule of law on which
a court’s decision is founded
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Ratio decidendi
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At the end of a case – judgement: a
speech by the judge giving the decision
and explaining the reasons for the
decision
Ratio decidendi
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In a judgement, the judge is likely to:
Give a summary of the facts of the case
Review the arguments given by advocates
Explain the principles of law he is using to
come to the decision
These principles: ratio decidendi
Ratio decidendi
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‘Any rule expressly or impliedly treated by
the judge as a necessary step in reaching
his conclusions’ (Sir Rupert Cross)
Obiter dictum/dicta
“something said in passing”
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A judicial comment made while
delivering a judicial opinion, but one
that is unnecessary to the decision in
the case and therefore not
precedential (although it may be
persuasive)
Obiter dictum/dicta
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“Strictly speaking an ‘obiter dictum’ is a remark
made or opinion expressed by a judge, in his
decision upon a case, ‘by the way’ – that is,
incidentally or collaterally, and not directly upon
the question before the court; or it is any
statement of law enunciated by the judge or
court merely by way of illustration, argument
analogy, or suggestion...
Obiter dictum/dicta
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In the common speech of lawyers, all
such extrajudicial expressions of legal
opinion are referred to as ‘dicta’ or
‘obiter dicta’, these two terms being
used interchangeably” (William M.
Lile et al, Brief Making and the Use of
Law Books)
Ratio/obiter
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A major problem: to divide the ratio
decidendi from the obiter dicta, as the
judgment is usually in a continuous form,
without any headings specifying what is
meant to be part of the ratio decidendi
and what is not
Judgements
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There may be more than one speech at
the end of a case, depending on the
number of judges
In appeal courts and the Supreme Court
cases are heard by at least 2 judges and
up to a maximum of 7 judges
Judgements
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It is common that one judge gives the
judgment and the other judges say ‘I
agree’
When there is a complicated point of law,
more than one judge may want to explain
his legal reasoning: more than one ratio
decidendi
Original precedent
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If the point of law in a case has never
been decided before, whatever the judge
decides will form a new precedent:
original precedent
As there are no past cases to base a
decision on, the judge is likely to look at
cases which are the closest in principle
and may decide to use similar rules:
reasoning by analogy
Hunter and others v Canary Wharf Ltd and London
Docklands Development Corporation (1995)
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The question whether the interference
with television reception by a large
building was capable of constituting an
actionable private nuisance
Hunter v Canary Wharf
Facts of the case
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In 1990 the Canary Wharf Tower , 250 m
high and over 50 m square, was built
The claimant and hundreds of others
suing with her, claimed damages from the
defendant for interference with reception
of TV broadcasts in their homes
The interference was claimed to have
been caused by the tower
Hunter v Canary Wharf
Extract from the judgement
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Lord Irving (counsel for the defendants)
submits that interference with television
reception by reason of the presence of a
building is properly to be regarded as
analogous to loss of aspect (view). To
obstruct the receipt of television signals by
the erection of a building between the
point of receipt and the source is not in
law a nuisance.
Hunter v Canary Wharf
Extract from the judgement
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In Aldred’s Case (1611) Wray CJ what he
had said in Bland v Moseley: “for prospect,
which is a matter only of delight and not
of necessity, no action lies for stopping
thereof, and yet it is a great
recommendation of a house if it has a
long and large prospect …But the law
does not give an action for such things of
delight”.
Hunter v Canary Wharf: Extract
from the judgement
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‘I accept the importance of television in
the lives of very many people. However, in
my judgement the erection or presence of
a building in the line of sight between a
television transmitter and other properties
is not actionable as an interference with
the use and enjoyment of land. The
analogy with loss of prospect is
compelling.
Hunter v Canary Wharf
Extract from the judgement
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The loss of a view, which may be of the
greatest importance to many
householders, is not actionable and
neither is the mere presence of a building
in the sight line to the television
transmitter’
Persuasive precedent
A precedent that is not binding on the court,
but the judge may decide that it is a
correct principle so he is persuaded that
he should follow it
Sources: courts lower in the hierarchy,
obiter dicta, dissenting judgements,
decisions of courts in other countries
Avoiding precedent
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Distinguishing
Overruling
Reversing
Distinguishing
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The judge finds that facts of the case he is
deciding are sufficiently different to draw
a distinction between the present case
and the previous precedent; not bound by
the previous case
Overruling
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A court in a later case states that the legal
rule decided in an earlier case is wrong
A higher court may overrule a decision by
a lower court (The Supreme Court
overruling a decision of the Court of
Appeal, or where the highest court (ECJ or
the Supreme Court) overrules its past
decision
Reversing
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A court higher up in the hierarchy
overturns the decision of a lower court on
appeal in the same case
The Court of Appeal may disagree with
the legal ruling of the High Court; in this
situation they reverse the decision of the
High Court
Law Reports
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The development and application of the
common law system pivots upon the
existence of a comprehensive system of
reporting cases
The Law Reports – the most authoritative
and frequently cited set of reports
History of Law Reports
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Law reports: since 13th c.; many early
reports – very brief and not always
accurate
Reports 1275 to 1535 called Year Books,
short reports of cases, usually written in
French
1535-1865 cases reported by individuals
who made a business out of selling the
reports to lawyers
History of Law Reports
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1865 the Incorporated Council of Law
Reporting set up – controlled by the
courts
Reports became accurate, with the
judgment noted down word for word
Law Reports
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Cases are not always reported in the year
that they are decided so a case citation
will refer to the volume and year in which
the case was published, e.g. Meah v
Roberts, [1978] 1 All ELR 97
The structure of a law report
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1. catchwords – indicate what the case is
about
2. headnote – a summary written by the
reporter
3. majority judgements, dissenting
judgements
Underlying principles
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Law should be stable, secure and
predictable
Similar cases should be decided in the
same way and the decision should rely on
the established tradition
Advantages of precedent
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Certainty
Consistency and fairness in the law
Precision
Flexibility
Time-saving
Certainty
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Because the courts follow past decisions,
people know what the law is and how it is
likely to be applied in their case
Consistency and fairness
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It is seen as just and fair that similar cases
should be decided in a similar way
The law must be consistent if it is to be
credible
Precision
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As the principles of law are set out in
actual cases the law becomes very precise
It is well illustrated and gradually builds
up through the different variations of facts
in the cases that come before the courts
Flexibility
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Law can change since the highest courts
can overrule cases
Distinguisting cases also give all courts
some freedom to avoid past decisions and
develop the law
Time-saving
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Where a principle has been established,
cases with similar facts are unlikely to go
through the lengthy process of litigation
Disadvantages
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Rigidity
Complexity
Illogical distinctions
Slowness of growth
Rigidity
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Lower courts must follow decisions of
higher courts: bad decisions made in the
past may be perpetuated
Changes in the law will only take place if
parties have the courage, persistence and
money to appeal their case
Complexity
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Half a million reported cases – not easy to
find all the relevant case law even with
computerised databases
Judgements: often very long with no clear
distinction between obiter dicta and ratio
decidendi
Illogical distinctions
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The use of distinguishing to avoid past
decisions can lead to ‘hair-splitting’ so that
some areas of the law have become very
complex
Differences between some cases may be
very small and appear illogical
Slowness of growth
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Judges may be aware that some areas of
law are unclear or in need of reform, but
they cannot make a decision unless there
is a case before the courts to be decided
Only 50 cases reach the Supreme Court
each year; there may be a long wait for a
suitable case to be appealed
Activity
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Search at least one website address and
find a recent law report:
www.lawreports.co.uk: gives summaries
of important cases in its Daily Law Notes
section
www.bailii.org: has cases from the Court
of Appeal and below
Legal terms
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Binding
Obvezujući
Jurisdiction: 1) the power of the court to
hear and decide a case or make a certain
order; 2) the territorial limits within which
the jurisdiction of a court may be
exercised; 3) the territorial scope of the
legislative competence of Parliament
nadležnost
Legal terms
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Ruling: a decision made by someone with
official authority such as a judge,
magistrate, arbitrator or chairman
Presuda, sudska odluka, službeno
mišljenje državnog tijela
Legal terms
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overrule v. 1) to reject an attorney's
objection to a question of a witness or
admission of evidence. By overruling the
objection, the trial judge allows the
question or evidence in court. If the judge
agrees with the objection he/she
"sustains" the objection and does not
allow the question or evidence.
overrule
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2) to decide (by a court of appeals) that a
prior decision on a legal issue was not
correct, and is therefore no longer a valid
precedent on that legal question
overrule
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To annul, to make void. This word is
frequently used to signify that a case has
been decided directly opposite to a former
case; when this takes place, the first
decided case is said to be overruled as a
precedent, and cannot any longer be
considered as of binding authority
Exercise
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Replace the underlined words and phrases
with the following:
Binding precedent, bound, cite, consider,
distinguish, override, rely on/apply,
revised
,
Binding precedent, bound, cite consider,
distinguish, override, rely on/apply, revised
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1. The courts are compelled to apply the
precedent set by a higher court.
2. During the court case the judge will
evaluate all the evidence and the legal
issues.
3. Judges are required to follow the ratio,
or reasoning, in relevant previous decided
cases
Binding precedent, bound, cite, consider,
distinguish, override, rely on/apply, revised
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4. However, the judge may note a case
cited as precedent by counsel as
materially different from the one at trial
5. It is, however, the role of counsel to
refer to relevant previous case decisions
6. The principle of following the decisions
of higher courts is fundamental to case
law.
Binding precedent, bound, cite, consider,
distinguish, override, rely on/apply, revised
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7. The Law Reports series are the most
frequently cited reports because the text
is edited by the trial judge.
8. New legislation may pay no attention to
the decision of an earlier court judgment.
Exercise 2
VERB
NOUN
cite
0
apply
precede
persuasion
bind
ADJECTIVE
0
Exercise 3
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Complete the sentences with appropriate
words from the table above:
1. Well, that decision of the Appeal Court
is going to be ...........on the case we’ve
got at trial just now.
2. We need to convince the judge that the
rule in Meah v Roberts is .......... to this
case.
Exercise 3
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3. Can you check the case.....?
I think the year’s wrong.
4. Should we add to our argument that
Edwards v Peck is a .......precedent given
the legal issues, although the judge isn’t
bound to follow it?
Recent UK case reports
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www.courtservice.gov.uk
www.lawreports.co.uk
To be remembered
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Definition of precedent
Hierarchy of courts
Stare decisis
Ratio decidendi
Obiter dicta
Law Reports
Advantages and disadvantages of
precedent