Lecturer: Miljen Matijašević
G10, room 6/I, Tue 11:30-12:30
e-mail: miljen.matijasevic@gmail.com
Session 6
1.
Revision of the last session
2.
The Doctrine of Precedent
3.
Vocabulary work
4.
Case study
The British Judiciary
1.
2.
3.
4.
5.
Outline the system of civil courts in the UK.
Outline the system of criminal courts in the
UK.
Who are justices of the peace?
What was the highest court in the UK before
2009?
Who is responsible for judicial
appointments?
Unit 5
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The foundation of the common law system
Judge-made law – court rulings that have the
strength of the law
It can have the same importance as the law enacted
by Parliament (Parliament-made law)
It can react more quickly to insufficiently clear
legislation or make up for the unexpected
circumstances of a case, not provided for in
statutes
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The principle of precedent is also known as stare decisis
(‘to stand by decisions’)
This means that a judge will consider previous similar
cases with matching circumstances and abide by the
ruling (judicial precedent) arrived at in the previous trial
The aim is to be consistent in the points of law, derived
from the facts of the case
If fact or circumstance A was relevant in reaching
decision X, then a new case featuring fact or
circumstance A must be ruled in the same way, i.e.
follow decision X
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The key criterion in abiding by judicial precedents
is the hierarchy of courts
As a rule – a decision made by a higher court will
become a BINDING precedent for the lower courts
and on the higher court itself
A BINDING precedent – that which must be followed
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Rulings made by lower courts (Magistrates’ Courts,
the County Court, the Crown Court) are not
binding, but may be considered as PERSUASIVE
(having good grounds and possibly helping to
reach a decision in the case at hand)
Decisions (precedents) made by courts in other
common law countries may also be considered in
adjudication, but are only treated as PERSUASIVE
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The decisions of the Supreme Court of the UK (or
formerly the House of Lords) are BINDING on ALL
lower courts, except on the SC itself
Justices of the Supreme Court can OVERRULE a
precedent established by their predecessors
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ORIGINAL PRECEDENT – that which creates a new
rule of law
DECLARATORY PRECEDENT – that which merely
applies an already existing rule of law
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THE MAIN ELEMENTS OF A JUDGMENT:
1.
Ratio decidendi (reason for the decision) – the part of
2.
Obiter dictum (things said by the way) – the remaining

the ruling which states the legal principle applied in
the ruling – treated as BINDING, if applicable
part of the judgment explaining cases cited and legal
principles argued before the court – considered
PERSUASIVE
Precedents recorded in Law Reports and other sources
(other collections of court rulings, specialized
journals, etc.)
Ways to treat a precedent:
1.
2.
3.
CITE a precedent, a case – bring a precedent to
the attention of the court
FOLLOW – establish that the principles applied in
the precedent correspond to the case in hand and
abide by the precedent
DISTINGUISH THE CASE – find that the facts of the
case are different and that the same principles,
i.e. precedent cannot or should not be applied
An appellate court can:
1.
APPROVE – accept a precedent/decision
2.
OVERRULE (the principle of law)
3.
REVERSE (the decision of a lower court)
In litigation...
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Attorneys’ (solicitors and barristers’) task is to
CITE precedents and either try to DISTINGUISH
the case at hand from potential binding
precedents, or establish that the points of law
established in a precedent are APPLICABLE to the
case at hand
This is done depending on the interest of the
client
The art of PERSUASION is crucial to the work of
attorneys
ADVANTAGES OF THE DOCTRINE
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Consistency in application and predictability of the
outcome of cases
Flexibility – easy adaptation to new circumstances
(when statutes do not provide an answer, creating
a new precedent provides for future rulings in
similar cases; e.g. Do silent phone calls represent
harrassment?)
Age-long recording of cases provides for a huge
amount of details, circumstances, points of law,
that enhance precision in the creating of law
DISADVANTAGES OF THE DOCTRINE
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May restrict judicial decisions and lead to illogical
conclusions by judges
Can be difficult to understand what exactly the
ratio decidendi was
Increasing complexity and volume of precedents,
makes it difficult and impractical do deal with
cases
binding precedent
persuasive precedent
original precedent
declaratory precedent
ratio decidendi
obiter dicta
stare decisis
follow a precedent
overrule a precedent
cite a precedent
distinguish the case
approve a decision
overrule a decision
reverse a decision
The Doctrine of Precedent
Complete the table with the words from the same family
VERB
NOUN
ADJECTIVE
Cite
Citation
Apply
Precede
Persuasion
Bind
-
-
Complete the table with the words from the same family
VERB
NOUN
Cite
Citation
Apply
Application
Applicable
Precede
Precedent
Preceding
Persuade
Persuasion
Persuasive
Bind
ADJECTIVE
-
-
Binding, bound
BIND - PERSUADE – APPLY – CITE
1.
2.
3.
4.
That decision of the Court of Appeal is going to be
.............. on the case we’ve got at trial just now.
We need to be able to convince the judge that the rule
in Meah v Roberts is .............. to this case.
Can you check the case ..............? I think the year is
wrong.
Should we add to our argument that Edwards v Peck is
a .............. precedent given the legal issues, although
the judge isn’t .............. to follow it as it comes from a
lower court?
1.
2.
3.
4.
That decision of the Court of Appeal is going to be
BINDING on the case we’ve got at trial just now.
We need to be able to convince the judge that the rule
in Meah v Roberts is APPLICABLE to this case.
Can you check the case CITATION? I think the year is
wrong.
Should we add to our argument that Edwards v Peck is
a PERSUASIVE precedent given the legal issues,
although the judge isn’t BOUND to follow it it as it
comes from a lower court?
FACTS OF THE CASE
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Miss Chester was referred to Dr Afshar, a
neurological expert, about some lower back pain.
He told her that surgery was a solution. She
suffered a complication, called cauda equina
syndrome.
TORT LAW – CLINICAL NEGLIGENCE
Required elements – negligent act and causation
(causal link between the act and the damage)
FIRST-INSTANCE TRIAL
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The judge found that dr Afshar did not inform Miss
Chester of the 1-2% risk of these operations going
wrong.
ISSUE: even though the operation might have gone
wrong anyhow, was there a causal link between the
complications and the fact that Dr Afshar failed to
inform her of the risks
FIRST-INSTANCE TRIAL
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The judge found that there was a causal connection
between the failure to inform and Miss Chester's
injuries - if she had been informed, she would have
sought further advice or alternatives.
APPEAL TO THE COURT OF APPEAL
 Decision of the HCJ upheld
THE HOUSE OF LORDS
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3 Lords upheld the decision of the CA
2 Lords dissented
THE HOUSE OF LORDS
 Lord Steyn, Lord Hope and Lord Walker held that
causation was proved
 it was the duty of the doctor to warn her
 a basic principle of good medical practice is that
adults should consent on a fully informed basis to
surgery, aware of all risks
 Dr Afshar had violated her right to choose
 They held that if damages were not awarded, that
duty to inform the patient of the risks would be a
hollow one
THE HOUSE OF LORDS – DISSENTS
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(Bingham and Hoffman)
Lord Bingham felt that even though Dr Afshar had
been found not to have informed Miss Chester
about the 1-2% risk of surgery failure, this did not
mean that causation had been shown.
It was necessary to say that if Miss Chester had
been informed of the risk, that she would not have
undertaken the operation at all.
The risk was inherent in surgery, no matter who
performed it.
Thank you for your attention!