Judicial Precedent

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Judicial Precedent

  • Past judges create law for future judges to follow.
  • Also known as Case Law.

The Doctrine of Stare Decisis

  • English system of precedent based on Latin maxim Stare Decisis Et Non Quieta Movere.
  • This means “stand by what has been decided and do not unsettle the established”-supports fairness and provides certainty in law.
  • At the end of a case the judge makes a speech stating the decision and gives the reason for the decision- considering arguments and facts then explain the principles of law he is using to come to the decision.
  • Ratio Decidendi = reason for deciding.
  • This is the information that is used to help judges decide in future cases.
  • Obiter Dicta= “other things said”- it is not binding precedent.
  • Judges in future cases do not have to follow it – judge sometimes speculates on what his decision may have been if the facts of the case were different.
  • Legal reasoning may be put forward in future cases from this Obiter Dicta.
  • Difficulty in distinguishing the ratio decidendi from the obiter dicta as the speech is continuous.

Original Precedent

  • If a point of law in a case has never been decided before then whatever the judge decides will form a new precedent for future cases to follow.
  • Judge finds case’s that are closest in principle to the one he is deciding on and may decide to use similar rules
  • This is called REASONING by ANALOGY.
  • The judge is creating a new law.
  • Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation 1995. Creating new law by analogy can be seen here. Refers this case of tower obstructing a TV signal, to Bland v Moselely 1611, “which is a matter only of delight and not of necessity.

Binding Precedent

  • Precedent in an earlier case must be followed, even if the judge in the present case disagrees with the legal principal.
  • To be binding the cases have to be sufficiently similar as well as being made by a senior court (sometimes the same level court).

Persuasive Precedent

  • Precedent that is not binding but the judge may decide to consider it and decide it is a correct principal – he is persuaded to follow it.
  • Persuasion comes from these sources:
  1. Courts lower in the hierarchy- the House of Lords agreed with and followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife. R v R 1991.
  2. Decisions of the Judicial Committee of the Privy Council- this court isn’t part of the hierarchy, decisions not binding. Many members are also members of the House of Lords therefore the decisions are respected and may be followed. The Wagon Mound 1961.
  3. Statements made Obiter Dicta (particularly House of Lords decisions) in R v Howe 1987 House of Lords ruled that duress could not be a defence to murder. As an Obiter Dicta statement they added that duress would not be available as a defence to attempted murder. It was followed as persuasive precedent in the Court of Appeal in R v Gotts 1992.
  4. A dissenting judgment: When a case has been decided by a majority vote (2-1 in the Court of Appeal) the judge who disagreed would have given his reasons. In the event that the case goes to the House of Lords or a later case, and the judge’s side with the dissenting argument, they then decide the case in the same way. Dissenting judgment has persuaded them to follow it.
  5. Decisions of courts in other countries. -They have to use common law system. Applies to Commonwealth countries such as Canada, Australia and New Zealand.

The Operation of Precedent and the Hierarchy of the Courts

  • Every court is bound to follow any decision made by a court above it in the hierarchy.
  • In general, appellate courts (courts which hear appeals) are bound by their own past decisions.

The European Court of Justice

  • Since 1973 is the highest court in our legal system.
  • For all points on European Law a decision made hear is binding on all other courts.
  • Laws that are unaffected by European Law have the House of Lords as the Supreme Court.
  • European Court will overrule its past decisions if it feels necessary=flexibility.

House of Lords

  • Decisions bind all other courts in the English legal system.
  • Not bound by own past decisions, although it will generally follow them.
  • Practice Statement 1966 announced change in using precedent- although the Lords will follow it precedent. They will depart from a previous decision when it appears right to do so.
  • They do not reverse previous precedent whenever they think it is wrong, instead in the general interest in the certainty of law they must be sure that there is some very good reason before they act.

Court of Appeal

  • Next level down from House of Lords.
  • Two divisions: Civil and Criminal.
  • Bound to decisions of House of Lords and European Court of Justice.
  • Must usually follow past decisions of their own although there are limited exceptions to this rule.
  • Criminal Division is more flexible when it comes to the liberty of a subject.
  • Decisions from one division will not bind the other division.
  • Lord Denning thought that the Court Of Appeal shouldn’t have to follow the House of Lords Precedent.
  • Its own Precedent can be overruled if the law has bee “misused or misunderstood”.

Divisional Courts

  • Queens Bench, Chancery and Family.
  • Bound by decisions by European Court of Justice, House of Lords and Court of Appeal.
  • Bound by own precedent but has similar exceptions to that of the Court of Appeal – overruling when the case involves someone’s liberty.

The High Court

  • Do not have to follow their own decisions but usually will do so.
  • Colchester Estates (Cardiff) v Carlton Industries plc 1984, it was held that where there were two earlier decisions that conflicted, then, provided the first decision had been fully considered in the later case, that decision should be followed.

Inferior Courts

  • Crown Court, County Court and the Magistrates’ Court.
  • They are bound to decisions made by all higher courts.
  • Unlikely that they can create precedent.

Distinguishing, Overruling and Reversing


  • A method in which a judge can avoid using a past decision, which he would otherwise have to follow.
  • The judge finds that the material facts of the case he is deciding ae sufficiently different for him to draw a distinction between the present case and the previous precedent. He is not then bound by the previous case.
  • Balfour v Balfour 1919 was a claim from a wife that her husband was in breach of contract. It was decided that the claim could not succeed because there was no intention to create legal relations.
  • Merrit v Merrit 1971 was successful because the court held that the facts of the case were sufficiently different in that, although the parties were husband and wife, the agreement was made after they had separated as well as having the agreement in writing.
  • The cases were distinguished from each other and so the precedent from the first case was not used.


  • A court in a later case states that the legal rule decided in an earlier case was wrong.
  • Overruling occurs when a higher court overrules a decision made in an earlier case by a lower court.
  • House of Lords overrules decision by Court of Appeal.
  • European Court of Justice overrules a past decision it has made.
  • House of Lords use the power under the Practice Statement to overrule a past decision of its own.
  • Pepper v Hart 1993- the House of Lords ruled that Hansard (what is said in Parliament) might be used in the interpretation of an Act of Parliament (what certain words meant).
  • This overruled the earlier decision in Davis v Johnson 1979 when the House had held that it could not consult Hansard.


  • A court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case.
  • E.g. the Court of Appeal may disagree with the legal ruling of the High Court and come to a different view of the law.
  • Reversing the decision of the High Court.

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