the doctrine of precedent

THE DOCTRINE OF THE DOCTRINE OF PRECEDENTPRECEDENT

Unit 5Unit 5

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Common law: precedentCommon law: precedent Hierarchy of English courtsHierarchy of English courts Stare decisisStare decisis Ratio decidendiRatio decidendi Obiter dictaObiter dicta Distinguishing, overruling and reversingDistinguishing, overruling and reversing Law reportsLaw reports Legal termsLegal terms ExercisesExercises

Common lawCommon law

Consists of substantive law and Consists of substantive law and procedural rules that are created by procedural rules that are created by the judicial decisions made in the the judicial decisions made in the courtscourts

Although legislation may override Although legislation may override such decisions, the legislation itself is such decisions, the legislation itself is subject to interpretation and subject to interpretation and refinement in the courtsrefinement in the courts

PrecedentPrecedent

A judgement or decision of a court, A judgement or decision of a court, normally recorded in a law report, normally recorded in a law report, used as an authority for reaching the used as an authority for reaching the same decision in subsequent casessame decision in subsequent cases

The Hierarchy of English CourtsThe 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 casesCivil cases

European Court of JusticeEuropean Court of Justice The Supreme CourtThe Supreme Court Court of Appeal (Civil Division)Court of Appeal (Civil Division) High CourtHigh Court County CourtCounty Court (Magistrates Court)(Magistrates Court)

Criminal CasesCriminal Cases

European Court of Human RightsEuropean Court of Human Rights The Supreme CourtThe Supreme Court Court of Appeal (Criminal Division)Court of Appeal (Criminal Division) Crown CourtCrown Court Magistrates’ CourtMagistrates’ Court

Court of Justice of the EUCourt of Justice of the EU

Decisions of the Court of Justice of the EU: Decisions of the Court of Justice of the EU: binding on all other courts in Member binding on all other courts in Member States States

The Supreme CourtThe Supreme Court

Practice Statement (1966): The Practice Statement (1966): The House of Lords (since 2005: the House of Lords (since 2005: the Supreme Court) no longer bound by Supreme Court) no longer bound by its past decisions its past decisions

Courts of Appeal (Criminal and Courts of Appeal (Criminal and Civil Divisons)Civil Divisons)

Bound by decisions of the Supreme Bound by decisions of the Supreme CourtCourt

bound to follow past decisions of bound to follow past decisions of their own, with limited exceptions their own, with limited exceptions

The High CourtThe High Court

Divisional courts: 1. Queen’s Bench Divisional courts: 1. Queen’s Bench Division (criminal appeals and judicial Division (criminal appeals and judicial review), 2. Chancery Division and 3. review), 2. Chancery Division and 3. Family DivisionFamily Division

Bound by the Court of Appeal and the Bound by the Court of Appeal and the Supreme CourtSupreme Court

Civil divisional courts – bound by their Civil divisional courts – bound by their previous decisionsprevious decisions

Queen’s Bench Division – more flexibleQueen’s Bench Division – more flexible

The Crown CourtThe Crown Court

Bound by all the courts above itBound by all the courts above it Its decisions do not form binding Its decisions do not form binding

precedentsprecedents Not bound by its own decisionsNot bound by its own decisions

Magistrates’ and county courtsMagistrates’ and county courts

Inferior courtsInferior courts Bound by the High Court, Court of Bound by the High Court, Court of

Appeal and the Supreme CourtAppeal and the Supreme Court Their decisions - not reported and Their decisions - not reported and

cannot produce binding precedents, cannot produce binding precedents, or even persuasive onesor even persuasive ones

Not bound by their own decisionsNot bound by their own decisions

Stare decisisStare decisis

Stare decisis (et non quieta Stare decisis (et non quieta movere)movere) = stand by things decided = stand by things decided (and do not unsettle the established)(and do not unsettle the established)

Supports the idea of fairness and Supports the idea of fairness and provides certainty in the lawprovides certainty in the law


The principle of binding precedent: The principle of binding precedent: decision of a higher court is binding decision of a higher court is binding on a lower court, i.e. the decision on a lower court, i.e. the decision must be followed, and in the course must be followed, and in the course of a trial the judges must refer to of a trial the judges must refer to existing precedentsexisting precedents


Judges will consider decisions made Judges will consider decisions made in a lower court, but they are not in a lower court, but they are not bound to follow thembound to follow them

A rule set by a court must be applied A rule set by a court must be applied if it is to the point – relevant or if it is to the point – relevant or pertinentpertinent

Ratio decidendiRatio decidendi

A case involves many facts and A case involves many facts and issues of evidenceissues of evidence

The decision itself does not actually The decision itself does not actually set the precedentset the precedent

The precedent is the legal principle The precedent is the legal principle which the judge relied on in which the judge relied on in determining the outcome of a casedetermining the outcome of a case

Ratio decidendi:Ratio decidendi: “the reason for deciding”; “the reason for deciding”;

The basis for a precedentThe basis for a precedent The principle or rule of law on The principle or rule of law on

which a court’s decision is which a court’s decision is foundedfounded


At the end of a case – judgement: a At the end of a case – judgement: a speech by the judge giving the speech by the judge giving the decision and explaining the reasons decision and explaining the reasons for the decisionfor the decision


In a judgement, the judge is likely to:In a judgement, the judge is likely to: Give a summary of the facts of the Give a summary of the facts of the

casecase Review the arguments given by Review the arguments given by

advocates advocates Explain the principles of law he is Explain the principles of law he is

using to come to the decisionusing to come to the decision These principles: ratio decidendiThese principles: ratio decidendi


‘‘Any rule expressly or impliedly Any rule expressly or impliedly treated by the judge as a necessary treated by the judge as a necessary step in reaching his conclusions’ (Sir step in reaching his conclusions’ (Sir Rupert Cross)Rupert Cross)

Obiter dictum/dictaObiter dictum/dicta“something said in passing”“something said in passing”

A judicial comment made while A judicial comment made while delivering a judicial opinion, but delivering a judicial opinion, but one that is unnecessary to the one that is unnecessary to the decision in the case and decision in the case and therefore not precedential therefore not precedential (although it may be persuasive)(although it may be persuasive)

Obiter dictum/dictaObiter dictum/dicta

““Strictly speaking an ‘obiter dictum’ is a Strictly speaking an ‘obiter dictum’ is a remark made or opinion expressed by a remark made or opinion expressed by a judge, in his decision upon a case, ‘by the judge, in his decision upon a case, ‘by the way’ – that is, incidentally or collaterally, way’ – that is, incidentally or collaterally, and not directly upon the question before and not directly upon the question before the court; or it is any statement of law the court; or it is any statement of law enunciated by the judge or court merely enunciated by the judge or court merely by way of illustration, argument analogy, by way of illustration, argument analogy, or suggestion...or suggestion...

Obiter dictum/dictaObiter dictum/dicta

In the common speech of In the common speech of lawyers, all such extrajudicial lawyers, all such extrajudicial expressions of legal opinion are expressions of legal opinion are referred to as ‘dicta’ or ‘obiter referred to as ‘dicta’ or ‘obiter dicta’, these two terms being dicta’, these two terms being used interchangeably” (William used interchangeably” (William M. Lile et al, M. Lile et al, Brief Making and the Brief Making and the Use of Law BooksUse of Law Books))

Ratio/obiterRatio/obiter

A major problem: to divide the A major problem: to divide the ratio ratio decidendidecidendi from the from the obiter dictaobiter dicta, as , as the judgment is usually in a the judgment is usually in a continuous form, without any continuous form, without any headings specifying what is meant to headings specifying what is meant to be part of the ratio decidendi and be part of the ratio decidendi and what is notwhat is not

JudgementsJudgements

There may be more than one speech There may be more than one speech at the end of a case, depending on at the end of a case, depending on the number of judgesthe number of judges

In appeal courts and the Supreme In appeal courts and the Supreme Court cases are heard by at least 2 Court cases are heard by at least 2 judges and up to a maximum of 7 judges and up to a maximum of 7 judgesjudges

JudgementsJudgements

It is common that one judge gives It is common that one judge gives the judgment and the other judges the judgment and the other judges say ‘I agree’say ‘I agree’

When there is a complicated point of When there is a complicated point of law, more than one judge may want law, more than one judge may want to explain his legal reasoning: more to explain his legal reasoning: more than one ratio decidendithan one ratio decidendi

Original precedentOriginal precedent

If the point of law in a case has never If the point of law in a case has never been decided before, whatever the been decided before, whatever the judge decides will form a new judge decides will form a new precedent: precedent: original precedentoriginal precedent

As there are no past cases to base a As there are no past cases to base a decision on, the judge is likely to look decision on, the judge is likely to look at cases which are the closest in at cases which are the closest in principle and may decide to use principle and may decide to use similar rules: reasoning by similar rules: reasoning by analogyanalogy

Hunter and others v Canary Wharf Ltd and London Hunter and others v Canary Wharf Ltd and London

Docklands Development Corporation (1995Docklands Development Corporation (1995)) The question whether the The question whether the

interference with television reception interference with television reception by a large building was capable of by a large building was capable of constituting an actionable private constituting an actionable private nuisancenuisance

Hunter v Canary WharfHunter v Canary WharfFacts of the caseFacts of the case

In 1990 the Canary Wharf Tower , 250 In 1990 the Canary Wharf Tower , 250 m high and over 50 m square, was builtm high and over 50 m square, was built

The claimant and hundreds of others The claimant and hundreds of others suing with her, claimed damages from suing with her, claimed damages from the defendant for interference with the defendant for interference with reception of TV broadcasts in their reception of TV broadcasts in their homeshomes

The interference was claimed to have The interference was claimed to have been caused by the towerbeen caused by the tower

Hunter v Canary WharfHunter v Canary WharfExtract from the judgementExtract from the judgement

Lord Irving (counsel for the defendants) Lord Irving (counsel for the defendants) submits that interference with submits that interference with television reception by reason of the television reception by reason of the presence of a building is properly to be presence of a building is properly to be regarded as analogous to loss of aspect regarded as analogous to loss of aspect (view). To obstruct the receipt of (view). To obstruct the receipt of television signals by the erection of a television signals by the erection of a building between the point of receipt building between the point of receipt and the source is not in law a nuisance. and the source is not in law a nuisance.

Hunter v Canary Wharf Hunter v Canary Wharf Extract from the judgementExtract from the judgement

In Aldred’s Case (1611) Wray CJ what In Aldred’s Case (1611) Wray CJ what he had said in Bland v Moseley: “for he had said in Bland v Moseley: “for prospect, which is a matter only of prospect, which is a matter only of delight and not of necessity, no delight and not of necessity, no action lies for stopping thereof, and action lies for stopping thereof, and yet it is a great recommendation of a yet it is a great recommendation of a house if it has a long and large house if it has a long and large prospect …But the law does not give prospect …But the law does not give an action for such things of delight”.an action for such things of delight”.

Hunter v Canary Wharf: Extract Hunter v Canary Wharf: Extract from the judgementfrom the judgement

‘‘I accept the importance of television in I accept the importance of television in the lives of very many people. the lives of very many people. However, in my judgement the erection However, in my judgement the erection or presence of a building in the line of or presence of a building in the line of sight between a television transmitter sight between a television transmitter and other properties is not actionable and other properties is not actionable as an interference with the use and as an interference with the use and enjoyment of land. The analogy with enjoyment of land. The analogy with loss of prospect is compelling. loss of prospect is compelling.

Hunter v Canary WharfHunter v Canary WharfExtract from the judgementExtract from the judgement

The loss of a view, which may be of The loss of a view, which may be of the greatest importance to many the greatest importance to many householders, is not actionable and householders, is not actionable and neither is the mere presence of a neither is the mere presence of a building in the sight line to the building in the sight line to the television transmitter’television transmitter’

Persuasive precedentPersuasive precedent

A precedent that is not binding on the A precedent that is not binding on the court, but the judge may decide that court, but the judge may decide that it is a correct principle so he is it is a correct principle so he is persuaded that he should follow itpersuaded that he should follow it

Sources: courts lower in the hierarchy, Sources: courts lower in the hierarchy, obiter dicta, dissenting judgements, obiter dicta, dissenting judgements, decisions of courts in other countriesdecisions of courts in other countries

Avoiding precedentAvoiding precedent

DistinguishingDistinguishing OverrulingOverruling ReversingReversing

DistinguishingDistinguishing

The judge finds that facts of the case The judge finds that facts of the case he is deciding are sufficiently he is deciding are sufficiently different to draw a distinction different to draw a distinction between the present case and the between the present case and the previous precedent; not bound by previous precedent; not bound by the previous casethe previous case

OverrulingOverruling

A court in a later case states that the A court in a later case states that the legal rule decided in an earlier case legal rule decided in an earlier case is wrongis wrong

A higher court may overrule a A higher court may overrule a decision by a lower court (The decision by a lower court (The Supreme Court overruling a decision Supreme Court overruling a decision of the Court of Appeal, or where the of the Court of Appeal, or where the highest court (ECJ or the Supreme highest court (ECJ or the Supreme Court) overrules its past decision Court) overrules its past decision

ReversingReversing

A court higher up in the hierarchy A court higher up in the hierarchy overturns the decision of a lower overturns the decision of a lower court on appeal in the same casecourt on appeal in the same case

The Court of Appeal may disagree The Court of Appeal may disagree with the legal ruling of the High with the legal ruling of the High Court; in this situation they reverse Court; in this situation they reverse the decision of the High Courtthe decision of the High Court

Law ReportsLaw Reports

The development and application of The development and application of the common law system pivots upon the common law system pivots upon the existence of a comprehensive the existence of a comprehensive system of reporting casessystem of reporting cases

The Law Reports – the most The Law Reports – the most authoritative and frequently cited set authoritative and frequently cited set of reportsof reports

History of Law ReportsHistory of Law Reports

Law reports: since 13th c.; many Law reports: since 13th c.; many early reports – very brief and not early reports – very brief and not always accuratealways accurate

Reports 1275 to 1535 called Year Reports 1275 to 1535 called Year Books, short reports of cases, usually Books, short reports of cases, usually written in Frenchwritten in French

1535-1865 cases reported by 1535-1865 cases reported by individuals who made a business out individuals who made a business out of selling the reports to lawyersof selling the reports to lawyers

History of Law ReportsHistory of Law Reports

1865 the Incorporated Council of Law 1865 the Incorporated Council of Law Reporting set up – controlled by the Reporting set up – controlled by the courtscourts

Reports became accurate, with the Reports became accurate, with the judgment noted down word for wordjudgment noted down word for word

Law ReportsLaw Reports

Cases are not always reported in the Cases are not always reported in the year that they are decided so a case year that they are decided so a case citation will refer to the volume and citation will refer to the volume and year in which the case was year in which the case was published, e.g. Meah v Roberts, published, e.g. Meah v Roberts, [[19781978]] 1 All ELR 97 1 All ELR 97

The structure of a law reportThe structure of a law report

1. catchwords – indicate what the 1. catchwords – indicate what the case is aboutcase is about

2. headnote – a summary written by 2. headnote – a summary written by the reporterthe reporter

3. majority judgements, dissenting 3. majority judgements, dissenting judgementsjudgements

Underlying principlesUnderlying principles

Law should be stable, secure and Law should be stable, secure and predictablepredictable

Similar cases should be decided in Similar cases should be decided in the same way and the decision the same way and the decision should rely on the established should rely on the established tradition tradition

Advantages of precedentAdvantages of precedent

CertaintyCertainty Consistency and fairness in the lawConsistency and fairness in the law PrecisionPrecision FlexibilityFlexibility Time-savingTime-saving

CertaintyCertainty

Because the courts follow past Because the courts follow past decisions, people know what the law decisions, people know what the law is and how it is likely to be applied in is and how it is likely to be applied in their casetheir case

Consistency and fairnessConsistency and fairness

It is seen as just and fair that similar It is seen as just and fair that similar cases should be decided in a similar cases should be decided in a similar wayway

The law must be consistent if it is to The law must be consistent if it is to be crediblebe credible

PrecisionPrecision

As the principles of law are set out in As the principles of law are set out in actual cases the law becomes very actual cases the law becomes very preciseprecise

It is well illustrated and gradually It is well illustrated and gradually builds up through the different builds up through the different variations of facts in the cases that variations of facts in the cases that come before the courtscome before the courts

FlexibilityFlexibility

Law can change since the highest Law can change since the highest courts can overrule casescourts can overrule cases

Distinguisting cases also give all Distinguisting cases also give all courts some freedom to avoid past courts some freedom to avoid past decisions and develop the lawdecisions and develop the law

Time-savingTime-saving

Where a principle has been Where a principle has been established, cases with similar facts established, cases with similar facts are unlikely to go through the are unlikely to go through the lengthy process of litigationlengthy process of litigation

DisadvantagesDisadvantages

RigidityRigidity ComplexityComplexity Illogical distinctionsIllogical distinctions Slowness of growthSlowness of growth

RigidityRigidity

Lower courts must follow decisions of Lower courts must follow decisions of higher courts: bad decisions made in higher courts: bad decisions made in the past may be perpetuatedthe past may be perpetuated

Changes in the law will only take Changes in the law will only take place if parties have the courage, place if parties have the courage, persistence and money to appeal persistence and money to appeal their casetheir case

ComplexityComplexity

Half a million reported cases – not Half a million reported cases – not easy to find all the relevant case law easy to find all the relevant case law even with computerised databaseseven with computerised databases

Judgements: often very long with no Judgements: often very long with no clear distinction between obiter dicta clear distinction between obiter dicta and ratio decidendiand ratio decidendi

Illogical distinctionsIllogical distinctions

The use of distinguishing to avoid The use of distinguishing to avoid past decisions can lead to ‘hair-past decisions can lead to ‘hair-splitting’ so that some areas of the splitting’ so that some areas of the law have become very complexlaw have become very complex

Differences between some cases Differences between some cases may be very small and appear may be very small and appear illogicalillogical

Slowness of growthSlowness of growth

Judges may be aware that some Judges may be aware that some areas of law are unclear or in need of areas of law are unclear or in need of reform, but they cannot make a reform, but they cannot make a decision unless there is a case before decision unless there is a case before the courts to be decidedthe courts to be decided

Only 50 cases reach the Supreme Only 50 cases reach the Supreme Court each year; there may be a long Court each year; there may be a long wait for a suitable case to be wait for a suitable case to be appealedappealed

ActivityActivity

Search at least one website address Search at least one website address and find a recent law report:and find a recent law report:

www.lawreports.co.uk: gives : gives summaries of important cases in its summaries of important cases in its Daily Law Notes sectionDaily Law Notes section

www.bailii.org: has cases from the : has cases from the Court of Appeal and belowCourt of Appeal and below

Legal termsLegal terms

BindingBinding ObvezujućiObvezujući Jurisdiction: 1) the power of the court Jurisdiction: 1) the power of the court

to hear and decide a case or make a to hear and decide a case or make a certain order; 2) the territorial limits certain order; 2) the territorial limits within which the jurisdiction of a court within which the jurisdiction of a court may be exercised; 3) the territorial may be exercised; 3) the territorial scope of the legislative competence of scope of the legislative competence of ParliamentParliament

nadležnostnadležnost


Ruling: a decision made by someone Ruling: a decision made by someone with official authority such as a with official authority such as a judge, magistrate, arbitrator or judge, magistrate, arbitrator or chairmanchairman

Presuda, sudska odluka, službeno Presuda, sudska odluka, službeno mišljenje državnog tijelamišljenje državnog tijela


overrule v. 1) to reject an attorney's overrule v. 1) to reject an attorney's objection to a question of a witness objection to a question of a witness or admission of evidence. By or admission of evidence. By overruling the objection, the trial overruling the objection, the trial judge allows the question or judge allows the question or evidence in court. If the judge agrees evidence in court. If the judge agrees with the objection he/she "sustains" with the objection he/she "sustains" the objection and does not allow the the objection and does not allow the question or evidence. question or evidence.

overruleoverrule

2) to decide (by a court of appeals) 2) to decide (by a court of appeals) that a priorthat a prior decision on a legal issue decision on a legal issue was not correct, and is therefore no was not correct, and is therefore no longer a valid precedent on that legal longer a valid precedent on that legal questionquestion

overruleoverrule

To annul, to make void. This word is To annul, to make void. This word is frequently used to signify that a case frequently used to signify that a case has been decided directly opposite to has been decided directly opposite to a former case; when this takes place, a former case; when this takes place, the first decided case is said to be the first decided case is said to be overruled as a precedent, and cannot overruled as a precedent, and cannot any longer be considered as of any longer be considered as of binding authoritybinding authority

ExerciseExercise

Replace the underlined words and Replace the underlined words and phrases with the following: phrases with the following:

Binding precedent, bound, cite, Binding precedent, bound, cite, consider, distinguish, override, rely consider, distinguish, override, rely on/apply, revisedon/apply, revised

Binding Binding precedent, bound, citeprecedent, bound, cite, , consider, consider,

distinguish, override, rely on/apply, reviseddistinguish, override, rely on/apply, revised

1. The courts are 1. The courts are compelledcompelled to apply to apply the precedent set by a higher court.the precedent set by a higher court.

2. During the court case the judge 2. During the court case the judge will will evaluateevaluate all the evidence and the all the evidence and the legal issues.legal issues.

3. Judges are required to 3. Judges are required to followfollow the the ratio, or reasoning, in relevant ratio, or reasoning, in relevant previous decided casesprevious decided cases

Binding Binding precedent, bound, citeprecedent, bound, cite, consider, , consider, distinguish, override, rely on/apply, reviseddistinguish, override, rely on/apply, revised

4. However, the judge may 4. However, the judge may note note a case a case cited as precedent by counsel as cited as precedent by counsel as materially different from the one at trialmaterially different from the one at trial

5. It is, however, the role of counsel to 5. It is, however, the role of counsel to refer torefer to relevant previous case relevant previous case decisionsdecisions

6. The principle of 6. The principle of following the following the decisions of higher courtsdecisions of higher courts is is fundamental to case law.fundamental to case law.

Binding Binding precedent, bound, citeprecedent, bound, cite, consider, , consider, distinguish, override, rely on/apply, reviseddistinguish, override, rely on/apply, revised

7. The Law Reports series are the 7. The Law Reports series are the most frequently cited reports most frequently cited reports because the text is because the text is editededited by the trial by the trial judge.judge.

8. New legislation may 8. New legislation may pay no pay no attentionattention to the decision of an earlier to the decision of an earlier court judgment.court judgment.

Exercise 2Exercise 2

VERBVERB NOUNNOUN ADJECTIVEADJECTIVE

citecite 00

applyapply

precedeprecede

persuasionpersuasion

bindbind 00


Complete the sentences with Complete the sentences with appropriate words from the table appropriate words from the table above:above:

1. Well, that decision of the Appeal 1. Well, that decision of the Appeal Court is going to be ...........on the Court is going to be ...........on the case we’ve got at trial just now.case we’ve got at trial just now.

2. We need to convince the judge 2. We need to convince the judge that the rule in that the rule in Meah v Roberts Meah v Roberts is is .......... .......... to this case.to this case.


3. Can you check the case.....?3. Can you check the case.....? I think the year’s wrong.I think the year’s wrong. 4. Should we add to our argument 4. Should we add to our argument

that that Edwards v PeckEdwards v Peck is is a .......precedent given the legal a .......precedent given the legal issues, although the judge isn’t issues, although the judge isn’t bound to follow it?bound to follow it?

Recent UK case reportsRecent UK case reports

www.courtservice.gov.uk www.lawreports.co.ukwww.lawreports.co.uk

To be rememberedTo be remembered

Definition of precedentDefinition of precedent Hierarchy of courtsHierarchy of courts Stare decisisStare decisis Ratio decidendiRatio decidendi Obiter dictaObiter dicta Law ReportsLaw Reports Advantages and disadvantages of Advantages and disadvantages of

precedentprecedent

the doctrine of precedent

Documents

lower court

higher court

courts decision

supreme courttheir decisions

judicial decisions

supreme courtbound

itits decisions

rule of law