Judicial Precedent
by Lisa Incledon
Common Law
 Common law is based on previously
decided cases.
 It is law created by judges for future
judges to follow.
 Thus, decided cases are sources of
law.
Doctrine of Judicial Precedent
 Following of legal principles laid
down in previously decided cases.
 Based upon the principle of stare
decisis.
 What does this mean?
Doctrine of stare decisis
 ‘Stand by what has been decided and
do not unsettle the established’
 This means standing by and following
previous decisions.
 Why is this important?
Ratio Decidendi
 Literally means ‘reasons for the
decision’
 Explanation of the principles of law
upon which the decision is based
 It is the ‘ratio decidendi’ which
becomes the precedent that can bind
future cases.
Obiter Dicta
 ‘Things said in passing’ or ‘Other
things said’
 Obiter dicta is not part of the ratio
decidendi and is not binding.
 It can be difficult when reading a case
to work out what is ratio decidendi
and what is obiter dicta.
Reading Case Law
 Also remember there may be more
than one judge:
 How many in the Court if Appeal?
 How many in the Supreme Court?
 When reading judges may disagree.
 You need to work out
 Majority judges
 Legal principles they agree on
Case Reporting
 It is essential that cases – particularly
those in the Supreme Court and Court of
Appeal are accurately reported.
 Supreme Court cases can be found on the
Supreme Court website:
http://www.supremecourt.gov.uk/decidedcases/index.html
 Cases from many of the higher courts can
also be found on http://www.bailii.org/
Original Precedent
 The first decision on a new point
of law that has never been
decided before.
 This then forms a new precedent
for future cases to follow.
Binding Precedent
A binding precedent is one which
must be followed – the court
faced with it has no alternative.
Importance of Court hierarchy
 The Court hierarchy is essential
for the doctrine of judicial
precedent.
 Lower courts are bound by the
decisions of higher court.
 What does this mean?
Powers of the Courts
 As a general rule – which courts
are each of these bound by?
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Magistrates’ Court
Crown Court
County Court
High Court
Divisional Courts
Court of Appeal
Supreme Court
Supreme Court
 Supreme Court was previously the
House of Lords.
 It was bound by itself for many years
 London Street Tramways v London
County Council (1898)
 Issued the Practice Statement in
1966
Practice Statement
 What does it say?
 What does it mean?
 Write down 2 criminal and 2 civil
cases in which the House of
Lords/Supreme Court has made use
of the Practice Statement.
Court of Appeal
 When can the Court of Appeal depart
from its own previous (and otherwise
binding decisions)?
 What case provides these rules?
Exceptions
 There are three key ways in which a
court may avoid following a precedent
 Distinguishing
 Overruling
 Reversing
Persuasive Precedent
 Persuasive precedent is not binding.
 A court does not have to follow a
persuasive precedent but may
consider it and be persuaded to follow
it.
 What are the six sources of
persuasive precedent?