Doctrine of Precedent

Key Questions

I. 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?

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

1. Court of Appeal is bound by House of Lords 2. But what if the HL decision is per incuriam?

3. In general the CA is also bound by previous CA decisions… EXCEPT:

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

I. NegligenceII. Hill v Chief Constable of West

Yorkshire [1989] AC 53III. How it was subsequently

followedIV. What European law saidV. How the precedent has survived

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

I. Police did not owe a duty of care II. No proximity of relationshipIII. 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

4 years later, a similar case arose

Osman v Ferguson1. Teacher “formed an unhealthy

attachment to a 15-year-old male pupil”

2. Patterns of harassment and the police had been in contact with the teacher and with the boy

3. Teacher then shot the boy and killed his father

4. 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

I. 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