Question : ‘Where the Supreme Court has said, albeit obiter dicta, that a binding precedent of the

Court of Appeal is wrong then any future Court of Appeal is bound not by its own precedent but by
the dicta of the Supreme Court.’ Discuss.

The issue of this question is the fact that the UKSC declared that the Court of Appeal is bound by the
obiter dicta of the UKSC rather than their binding precedent. According to R v Barton and Booth, the
Court of Appeal is bound by the obiter of the Supreme Court in stand of its own earlier decision. In
order to discuss this further, the issues of ratio decidendi, obiter dicta, the exam of obiter dictum and
other relevant cases will need to be highlighted.

When a judgement is passed the most essential pieces of information are known as ratio decidendi of
a case. This is formulated from the material fact of cases and is considered as binding in similar
cases. Ratio decidendi has been defined by Sir Rupert Cross as, “any rule of law expressly or
impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the
line of reasoning adopted by him”. (University of London Subject Guide: Legal Systems and
Methods)

On the other hand, obiter dictum is a statement of a judge unrelated to the material facts of the case.
MacCormick has defined obiter dicta as “statements of opinion upon the law and its values and
principles in their bearing on the instant decision, statement which in some way go beyond the point
or points necessary to be settled in deciding the case”. (Holland and Webb). Richard Cross and JW
Harris have also described obiter as “dicta of the highest persuasiveness may often, for all practical
purposes, be indistinguishable from pronouncements which must be treated as ratio decidendi”. This
statement implies that obiter is considered to be more persuasive precedent rather than binding. Four
expamles have been set out by Holland and Webb for obiter. Firstly, they said that obiter may arise
from the hypothetical pronouncement of the judge. Secondly, where it is needed, the judge says what
the decision would have been had he not been bound by precedent. Thirdly, obiter may arise from the
minority judgement and “the dissenting judgement cannot be part of the ratio”. Finally, obiter may
also arise from the general comments of the judge as established in the ‘neighbourhood principle’ in
Donoghue v Stevenson.

As mentioned above, the ‘neighbourhood principle’ was established in the case of Donoghue v
Stevenson by Lord Atkin. In this case, a person had drank a brown bottle of ginger beer where he
found a dead snail at the bottom of the bottle. There was no existing contract between the
manufacturers and consumers as consumers would purchase the bottle from the shops. However, the
House of Lords has held that the manufacturer must take reasonable care. However, this case is most
significant due to one statement made by Lord Atkin who said, “a person owed a duty of care to not
injure one’s neighbour”. Although this statement is obiter, it still had more influence than ratio to
establish the law of tort or negligence. (Alistair Gillespie and Siobhan: 7 th edition) Similarly, the
obiter in the case of Hedley Byrne & Co Ltd v Heller and Partner Ltd has developed the llaw of
negligence by setting out a leading precedent. One other case for obiter is that of R v Preddy and
others [1996] where the following statement was given by Lord Goff: “A person appropriating
property belongs to another without meaning the other permanently lose the things itself”. Here, the
“property” is a cheque which is considered to be property without obtaining. In 1997, the House of
Lords decided to follow this obiter in the case of Graham.
Another important case for obiter is the case of Ivey v Genting Casinos which modified the test for
dishonesty by overruling the Ghosh test. In the judgement of Ivey, para 74 states, “the second leg of
the propounded in Ghosh does not correctly represent the law and that directions based upon it out no
longer to be given”, thus implying that obiter does play an important role in the development of case
law. However, in R v Barton and Booth [2020], the Court of Appeal has clarified that there were
issues arising with the test if dishonesty and the court should follow the ratio of its earlier decision.
However, taking an analogous position, in para 102, the Court of Appeal has stated that they are
bound by the decision of the Supreme Court although it is strictly obiter in the case of R v James and
Karini. In para 98 of the judgement of Barton, the Court of Appeal has pointed out that it has
followed the decision of the Privy Council case Attorney General for Jersey v Holley or the decision
of the House of Lords case R v Smith (Morgan). Para 101 of the judgement clarifies the reasons for
following the decision of the Privy Council. Firstly, the UKHL and the Privy Council had the same
bench. Secondly, this decision was a majority agreed on by six out of nine Law Lords and finally, the
UKHL would have come to the same decision. (Westlaw)
The outcome of Barton is set out in para 104 where modifications have been made to precedent in the
English law. The Court also expressed that, “…directs that an otherwise binding decision of the
Court of Appeal should no longer be followed and proposed an alternative test that it says must be
adopted, the Court of Appeal is bound to follow what amounts to a direction from the Supreme Court
even though it is strictly obiter”.

From the above discussion, it can be concluded that obiter dicta has a vital role to play in the
development or modification of case law and sometimes may be more influential in precedents of
English law than the ratio decidendi.