Doctrine of Precedent
Key Questions
What is precedent? (stare decisis)
II. Why have it?
III. How does it work, i.e “who binds
who” and “when”?
IV. What does ratio decidendi mean? And
obiter dictum?
V. How does European law impact
upon the rules of precedent?
I.
What is the doctrine of
precedent?

Often called the Doctrine of Stare Decisis

Literally means…’stand by things that have
been decided’

Put simply – courts in the UK are bound by
the decisions of earlier courts on similar
issues unless they can be ‘distinguished’.
Why have it?

Not all systems have this – characteristic of
common law jurisdictions where judgments
are a major source of legal principle

Designed to ensure consistency and legal
certainty

Reflects our hierarchical court structure –
lower courts more constrained than
superior courts
How does it work?
I.
Basic rule is that precedents created by a
higher court bind lower courts
II.
House of Lords decisions therefore bind all
lower courts
III.
Does the House of Lords bind itself?


Yes; but see also the [1966] Practice Direction
Benefits and problems
Application of the doctrine to the
Court of Appeal
Court of Appeal is bound by House of Lords
But what if the HL decision is per incuriam?
1.
2.
In general the CA is also bound by previous CA
decisions… EXCEPT:
3.




Conflicting judgments
Previous decision overruled by HL
Per incuriam decisions
EWCA judgments in NI and visa-versa (persuasive)
A closer look at how the doctrine
works in practice…..
 Courts are only bound by the previous
decision in similar cases unless they can
be distinguished or are per incuriam.
 Must identify the binding part of the
earlier decision & assess whether the
two cases are in fact similar.
Identifying the Binding
‘Decision’

When we talk about courts being bound by previous precedent
– they are bound only by the ratio decidendi of the previous
decision.

RD of a case can be defined as the material facts and the
decision thereon. In other words, it is the core reason for the
decision.

Defining the concept of a ratio in abstract terms is easy(ish),
locating it in a specific case can be another matter!

This process is a key legal skill and takes years to refine – it will
be fundamental to the success of your legal studies
The concept of ‘obiter dictum’
I.
Obiter Dictum is regarded as something said “by
the way” but is not central to the core legal
reasoning (i.e., the ratio) that determines the case.
II.
Obiter usually arises in course of lengthy
judgments
III.
That part of the judgment deemed to be ‘obiter’
does not bind subsequent courts – the doctrine of
precedent only applies to the ratio.
Problem of divergent
judicial opinions….
Finding the ratio can become much more
complex when dealing with decisions of
senior courts where each judge delivers a
separate decision….
‘Majority’ and ‘dissenting’ decisions
Majority may agree on the decision but for
different reasons
Can the earlier case be
‘distinguished’?
•
Doctrine of precedent only binds a
court where the material facts are
similar to an earlier case.
•
If the material facts of the previous
case can be ‘distinguished’ then its
ratio will not bind the later court.
UK Precedent and EU law
 EU law enjoys primacy over domestic law
 The HL must therefore depart from inconsistent UK
precedents in order to give effect to EU law (see, e.g.,
R v Secretary of State for Transport, ex p Factortame
[1991] 1 AC 603)
 Lower courts are also able to depart from the rule of
precedent where a previous UK court’s decision is at
odds with a decision of ECJ ruling or EU legislation.
The impact of the Human
Rights Act 1998
 Domestic precedents must yield to conflicting
human rights requirements when the case is
heard in the court that established the precedent:
see, e.g., Ghaidan v Godin-Mendoza [2004] 3 All
ER 411
 But what if the issue arises in a “lower”
court?: Lambeth LBC v Kay; Leeds CC v Price
[2006] 4 All ER 128 – lower court should
follow precedent of higher court save in
extreme circumstances
Concluding comments…
Understanding the legal ‘weight’ of a
precedent or decision
Mastering the skills of reading
judgments!
Take a break…
A precedent case study
Negligence
II. Hill v Chief Constable of West Yorkshire
[1989] AC 53
III. How it was subsequently followed
IV. What European law said
V. How the precedent has survived
I.
What is negligence?



Tort law
Duty of care; breach; causation
Duty of care? Foreseeability of harm;
proximity of relationship between P
and D; fair, just and reasonable to
impose liability (Caparo Industries v
Dickman [1990] 2 AC 605)
The Hill case - facts



Plaintiff was mother of the ‘Yorkshire
Ripper’s’ last victim
Argued that the police had been negligent
when investigating the Ripper’s activities
and that this had caused their daughter’s
death
Did the police owe a duty of care? (note that
the test different at the time of the case, i.e.
Caparo post-dates Hill)
1989 Hill Ruling
Police did not owe a duty of care
II. No proximity of relationship
III. And arguments of “public policy” –
resources; time; public less well
served; etc
IV. Court followed the decision in Rondel
v Worsley [1967] 3 All ER 993
I.
4 years later, a similar case arose
Osman v Ferguson
1.
2.
3.
4.
Teacher “formed an unhealthy attachment
to a 15-year-old male pupil”
Patterns of harassment and the police had
been in contact with the teacher and with
the boy
Teacher then shot the boy and killed his
father
Boy and mother sued: but did the police
owe a duty of care?
Osman v Ferguson
[1993] 4 All ER 344
 Court held that it was arguable that sufficient
proximity existed
 But concluded that no duty of care was owed
because of the rule of public policy in Hill
 As a result of these cases, the Police
effectively enjoyed an “immunity” from suit
and did not owe legal duty of care.
 New cases were therefore “struck-out” as
disclosing no reasonable cause of action. This
meant that cases did not go to a full hearing
Osman went to ECtHR…
 ECtHR found that the immunity violated
Article 6 ECHR (Osman v UK [1999] 1 FLR
193)
 Although the ECtHR has since changed its
mind in part; UK courts have become a little
bit less absolute about duties of care & the
police
So what about the decision in
Hill?
•
•
It is still a precedent, although one that
will now be followed much more on a
“case-by-case” basis, rather than on a
“category of case” basis (categories being
apt to give rise to immunities). And note,
e.g., the demise of Rondel v Worsley
For example: in Brooks v Metropolitan Police
Commissioner [2005] 2 All ER 489 – Hill
applied, but with modification (see, in
particular, the opinion of Lord Steyn at
paras 27-30)
Conclusions
Precedent, for some, defines the
working of the common law system
II. And flexibility, for others, defines the
common law
III. Hill is perhaps an example of both
assumptions in operation
I.