Definitions

Ratio Decidendi- Binding precedents (lower courts must follow it) ''The reason for
the decision'' - Forms binding precedent for future cases
Problem: Ratio decidendi can be difficult to identify as it may not be clearly
stated. Different judges involved might have different reasons and views on which
facts are material may differ
Examples:
Donoghue v Stevenson - Was the Ratio decidendi the narrow comment regarding the
relationship between the manufacturer and consumer or the broader neighbour price?
Ratio decidendi may only emerge clearly after consideration by later cases
Stare Decisis - ''To stand by what has been decided''
Orbiter dicta - ''Other things said'' Judge may speculate on what the outcome would
have been had it been proven
- Provides persuasive precedent - Judges in future cases do not have to follow
Examples:
- Lord Godard's 'swarm of bees was made Obiter dicta in Hill v Baxter
Operation of Judicial precedent
Following - When there is a previous precedent set by a higher court or court at
the same level and the judge decides the facts of the case are similar then the
principle of law must be used
- The binding precedent must be followed if material facts are sufficiently
similar.
Ex; Donoghue v Stevenson was in Grant v Australian Knitting
- Pepper v Hart Ban on using Hansard overruled
Overruling - Where a court in a case states that the legal rules in an earlier case
are wrong
Ex; Davis v Johnson - Hansard should not be used. (Parliamentary privilege) Though
Lord Deming said to not use the Hnsardis like ''groping in the dark without
switching on the light''
Distinguishing - Method used by the judge to avoid following past decision
following previous ones. Lawyers can advise clients on likely outcomes
Ex; Balfour v Balfour (1919) - £30 per month to the broken couple, but not set in
the contract, so Judge quashed any damages on d
Meritt v Meritt (1970) - Contracted agreement to follow the previous case. It
revolves property which was a contract signed by the couple before they broke up,
so was more eligible than the precedent.
Advantages and disadvantages of Judicial precedent and operation of precedent
+ Certainty - Decisions follow previous ones. Lawyers can advise clients on likely
outcomes
+ Consistency and fairness - Just and fair that similar cases should be decided in
a similar way. Gives people confidence in the legal system
+ Precision - As principles of law are set out, laws become very precise. Built up
over time
+ The saving - Where principle has been established, later cases do not need to go
through lengthy processes
+ Flexibility - Room for the law to change as the Supreme court can use the
practice statement. Distinguishing precedent also gives the court some freedom to
avoid decisions and develop laws (e.g for distinguishing precedents)
- Rigidity - Facts that courts have to follow higher courts makes the law
inflexible, bad decisions of past can be repeated
- Complexity - With almost 500,000 reported cases it can be difficult even with
organised databases to find relevant cases. Even when you find the Ratio decidendi
it may not be clear
- Illogical distinctions - Use of distinguishing to avoid following past decisions.
The law can be 'hair splitting' making some areas of the law complex
Law reporting and reasons
- 1865 incorporated council of law reporting set up and produced accurate (word for
word) law reports
- All Supreme court cases reported, most appeal court cases and some High court
cases which are now available online stored in databases
- Examples; weekly law reports, all England law reports i.e Pepper v Hart Ban on
using Hansard overruled
- Essential to have an accurate report to (1) enable a ban on using cases to
understand and (2) to different material precedents
The doctrine of Judicial Precedent
The doctrine of Precedent (following decisions of previous cases, especially of
higher courts) based on Stare Decisis - ''To stand by what has been decided''
Hierarchy of Courts including the Supreme court
Court: Supreme Court
Courts bound by it: All the courts in the legal system
Courts it must follow: European law
Court: Court of Appeal
Courts bound by it: Itself (with some exceptions), Divisional courts and all lower
courts
Courts it must follow: European courts, Supreme court
Court: Divisional courts
Courts bound by it: Itself (with some exceptions) High Court and All other lower
courts
Courts it must follow: European Courts, Supreme Court, Court of Appeal
Court: High Court
Courts bound by it: County courts, Magistrates court
Courts it must follow: European Courts, Divisional Courts, Supreme Court, Court of
Appeal
Court: Crown Court
Courts bound by it: Possibly Magistrates court
Courts it must follow: All higher courts
Court: County Court
Courts bound by it: Possibly magistrates court
Courts it must follow: All higher courts
EU Courts - Since 1973 and until Brexit is finalised, the UK courts are bound by
the Court of the Justice of the European Union
Supreme Court was bound by previous decisions - Young v Bristol Aeroplane Co. Ltd:
-
- Court decisions are usually bound to themselves unless;
- Conflicting decisions in previous cases, the Court chooses one
- The lower decision by Supreme Court over Court of Appeal
- Extra note for Court of Appeals Criminal division - Greater flexibility, and for
the person's liberty
- Ratio decidendi (binding precedents) - Lower courts must follow it