The process of binding precedent, also known as the doctrine of judicial precedent, involves judges following previously decided cases with similar facts. This doctrine applies the principle of stare decisis, meaning to stand by the decided. In practice, this requires inferior courts to apply the legal principles established by superior courts in previous cases. This ensures consistency and predictability in the law. A judge’s decision or judgement can be divided into two parts: the ratio decidendi, which is the reason for the decision, and obiter dictum, which is something said incidentally.
RATIO DECIDENDI – The ratio decidendi of a case is the legal principle that forms the basis of a decision. When a judge delivers a judgement, they state the proven facts and apply the relevant law to reach a decision, providing the reason for it (ratio decidendi). OBITER DICTUM – Additionally, a judge may express their thoughts on what their decision would have been if the circumstances of the case were different. This is referred to as an obiter dictum. The legally binding portion of a judicial decision is the ratio decidendi.
An obiter dictum is not legally binding in subsequent cases because it was not directly relevant to the main issue in the original case. Nevertheless, an obiter dictum can carry persuasive authority in later cases. The challenge lies in the fact that while a judge will provide reasons for their decision, they may not explicitly state the ratio decidendi, leaving it up to a later judge to deduce the main principle of the case. However, there can be disagreements on what constitutes the ratio and there might be multiple ratios.
The European Communities Act 1972, particularly s3(1), asserts that the ECJ’s decisions hold legal authority over all courts, including the House of Lords, which is deemed the highest court in the country. Previously, prior to 1966, the House of Lords would adhere to its own past judgments. However, Lord Gardiner LC introduced a shift in approach with the Practice Statement [1966]. According to this statement, although the House of Lords generally regards its rulings as binding, it reserves the right to deviate from them if circumstances require.
This power has been used sparingly. A decision of the House of Lords binds all lower courts.
The Court of Appeal (CIVIL DIVISION) is bound by decisions of the House of Lords even if it considers them to be wrong. In Young v Bristol Aeroplane Co Ltd [1944], the Court of Appeal held that it was bound by its own previous decisions subject to three exceptions:
- Where its own previous decisions conflict, the Court of Appeal must decide which to follow and which to reject.
- The Court of Appeal must refuse to follow a decision of its own that cannot stand with a decision
of the House
of Lords, even if its decision has not been expressly overruled by the House of Lords. - The Court of Appeal need not follow a decision
of its own if satisfied that it was given per incuriam (literally, by carelessness or mistake).
Decisions made by the Court
of Appeal are binding on both the High Court and
the county court.
The application stare decisis is applied in both the civil and criminal divisions
of the Court o f Appeal without distinction in principle.
In the criminal division, individuals’ freedom is protected by not strictly following precedence. The Young exceptions are also considered. In the case of R v Taylor [1950], the Court of Appeal highlighted that if a full court finds an incorrect interpretation or application of the law related to personal liberty, they must review the previous decision. While the High Court must abide by decisions made by the Court of Appeal and House of Lords, it is not required to follow other High Court decisions. Nevertheless, these decisions have significant persuasive influence in the High Court and are typically followed.
Individual High Court judges’ decisions are binding for county courts. The Divisional Court, which is bound by the House of Lords and the Court of Appeal, generally follows previous decisions made by another Divisional Court. However, it can deviate from them if it believes they are incorrect (R v Greater Manchester Coroner, ex parte Tal [1985]). Judges at the Crown Court do not have obligatory authority on legal matters but their decisions carry persuasive weight. Therefore, other Crown Court judges are not required to follow them. This principle also applies to county courts and magistrate courts.
The decisions of these courts do not have to be followed by other courts. They are usually not important in the field of law and are typically not reported in the law reports. A binding precedent is a decided case that a court is required to follow. However, a previous case is only binding in a later case if the legal principle and facts are similar. Judges often use the method of distinguishing a case on its facts or on the point of law in order to avoid the repercussions of an earlier decision that is legally binding on them.
The perception of what is reasonably distinguishable varies depending on the specific cases and the particular court. Some judges are more inclined to “distinguish” disliked authorities than others. In Jones v Secretary of State for Social Services [1972], Lord Reid noted that when an existing decision is disapproved but cannot be overruled, courts tend to distinguish it on inadequate grounds. Lord Reid believes that this approach is not wrong, as it is the lesser of the only alternatives available. However, he warns that it leads to uncertainty. On the other hand, Buckley LJ in Olympia Oil v Produce Brokers [1914] stated that he cannot provide a reason for why a particular decision is right, but he is obligated to follow it due to authority.
Overruling occurs when a higher court overturns a lower court’s previous decision in an earlier case. For instance, the Court of Appeal has the power to overrule a prior High Court decision. Overruling may happen if the previous court misapplied the law or if the later court deems the rule of law in the previous ratio decidendi no longer desirable.
Reversing a decision involves overturning a lower court’s ruling on appeal, with the higher court providing its own judgment. Per incuriam decisions are made due to carelessness or mistake and can be prevented. Lord Evershed MR in Morelle v Wakeling [1955] emphasized that per incuriam should only apply if the decision was given without awareness of an inconsistent statutory provision or a binding authority on the court.
In Secretary of State for Trade and Industry v Desai (1991) The Times 5 December, Scott LJ stated that for a decision to be considered per incuriam, it must demonstrate not only a clear mistake or error but also have the potential to cause substantial inconvenience in the administration of justice or significant injustice to citizens. Nevertheless, this guideline does not allow the Court of Appeal to disregard rulings made by the House of Lords.
Lord Denning MR in the case of Cassell v Broome [1972] argued that the House of Lords’ decision in Rookes v Barnard [1964] was per incuriam because it disregarded previous rulings of the House of Lords. The House of Lords strongly reprimanded Lord Denning, suggesting that the Court of Appeal simply disagreed with the earlier decision: “Even if this is not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords.” (Lord Hailsham) Persuasive precedents are not binding on a court but can still be applied.
Legal cases can cite various authorities, including decisions from lower English courts. For example, the House of Lords may follow a Court of Appeal decision or the Court of Appeal may follow a High Court decision (although not strictly obligated to do so). Other authorities that can be cited include decisions from the Judicial Committee of the Privy Council and courts in Scotland, Ireland, the Commonwealth (especially Australia, Canada, and New Zealand), and the USA. These authorities are typically referenced when there is a scarcity or complete absence of English authority on a specific matter. Additionally, obiter dicta from English judges can also be cited.
OTHER PERSUASIVE AUTHORITIES – In the absence of direct authority from decided cases, legal writings in textbooks and periodicals can serve as persuasive authorities. Many authors have been frequently cited in court, both by counsel and judges in judgments. For example, Smith and Hogan’s Criminal Law.
ADVANTAGES AND DISADVANTAGES OF PRECEDENT
ADVANTAGES
– Certainty: The law offers predictability by examining existing precedents to anticipate decisions and plan accordingly.
– Uniformity: Similar cases are treated consistently within the law.
The text highlights the importance of establishing a just system that is acceptable to the public. Judicial precedent, which is flexible, provides various ways to avoid precedents and allows for adaptability in the system. Unlike legislation, judicial precedent is practical as it is based on real facts and has a wealth of detailed cases to refer to. However, there are drawbacks. Determining the ratio decidendi can be difficult, especially when multiple reasons are involved. There may also be delays in court cases while awaiting a decision on a specific point. Additionally, cases can easily be distinguished based on their unique facts to avoid following inconvenient precedents. The abundance and complexity of case law can be overwhelming. In conclusion, while promoting judicial activism to prevent undesirable consequences from strict adherence to precedent, caution should be exercised in pursuing excessive dynamism that compromises judges’ impartiality and infringes upon parliamentary authority.
Perhaps Lord Denning’s stated in his book that is “to keep the path to justice clear of obstructions which would impede it”. In The New Law Journal in 1999, Francis Bennion, a former parliamentary counsel, criticized what he calls the “growing appetite of some judges for changing the law themselves, rather than waiting for Parliament to do it”. It is difficult to determine the exact number of cases of injustice that remain unresolved because the litigants are unable to challenge precedent in the Court of Appeal and cannot afford the House of Lords.
Despite the difficulty in imagining another Lord Denning, it is highly probable that future judges who understand the importance of dispensing justice in specific cases will adopt the same precedent-setting approach as Denning did, regardless of the rigid rules of stare decisis. Any legal system founded on human values would invariably allow for such a tendency, whether deemed as unconventional or bold.
