THE DOCTRINE OF PRECEDENT

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THE DOCTRINE OF PRECEDENT

• Unit 5

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Preview

• Common law precedent
• Hierarchy of English courts
• Stare decisis
• Ratio decidendi
• Obiter dicta
• Distinguishing, overruling and reversing
• Law reports
• Legal terms
• Exercises

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Common law

• Consists of substantive law and procedural rules
  that are created by the judicial decisions made
  in the courts
• Although legislation may override such decisions,
  the legislation itself is subject to
  interpretation and refinement in the courts

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Precedent

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

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The Hierarchy of English Courts
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Civil cases

• European Court of Justice
• The Supreme Court
• Court of Appeal (Civil Division)
• High Court
• County Court
• (Magistrates Court)

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Criminal Cases

• European Court of Human Rights
• The Supreme Court
• Court of Appeal (Criminal Division)
• Crown Court
• Magistrates Court

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Court of Justice of the EU

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

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The Supreme Court

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

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Courts of Appeal (Criminal and Civil Divisons)

• Bound by decisions of the Supreme Court
• bound to follow past decisions of their own, with
  limited exceptions

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The High Court

• Divisional courts 1. Queens Bench Division
  (criminal appeals and judicial review), 2.
  Chancery Division and 3. Family Division
• Bound by the Court of Appeal and the Supreme
  Court
• Civil divisional courts bound by their previous
  decisions
• Queens Bench Division more flexible

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The Crown Court

• Bound by all the courts above it
• Its decisions do not form binding precedents
• Not bound by its own decisions

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Magistrates and county courts

• Inferior courts
• Bound by the High Court, Court of Appeal and the
  Supreme Court
• Their decisions - not reported and cannot produce
  binding precedents, or even persuasive ones
• Not bound by their own decisions

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Stare decisis

• Stare decisis (et non quieta movere) stand by
  things decided (and do not unsettle the
  established)
• Supports the idea of fairness and provides
  certainty in the law

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Stare decisis

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

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Stare decisis

• Judges will consider decisions made in a lower
  court, but they are not bound to follow them
• A rule set by a court must be applied if it is to
  the point relevant or pertinent

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Ratio decidendi

• A case involves many facts and issues of evidence
• The decision itself does not actually set the
  precedent
• The precedent is the legal principle which the
  judge relied on in determining the outcome of a
  case

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Ratio decidendi the reason for deciding

• The basis for a precedent
• The principle or rule of law on which a courts
  decision is founded

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Ratio decidendi

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

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Ratio decidendi

• In a judgement, the judge is likely to
• Give a summary of the facts of the case
• Review the arguments given by advocates
• Explain the principles of law he is using to come
  to the decision
• These principles ratio decidendi

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Ratio decidendi

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

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Obiter dictum/dictasomething said in passing

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

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Obiter dictum/dicta

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

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Obiter dictum/dicta

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

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Ratio/obiter

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

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Judgements

• There may be more than one speech at the end of a
  case, depending on the number of judges
• In appeal courts and the Supreme Court cases are
  heard by at least 2 judges and up to a maximum of
  7 judges

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Judgements

• It is common that one judge gives the judgment
  and the other judges say I agree
• When there is a complicated point of law, more
  than one judge may want to explain his legal
  reasoning more than one ratio decidendi

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Original precedent

• If the point of law in a case has never been
  decided before, whatever the judge decides will
  form a new precedent original precedent
• As there are no past cases to base a decision on,
  the judge is likely to look at cases which are
  the closest in principle and may decide to use
  similar rules reasoning by analogy

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Hunter and others v Canary Wharf Ltd and London
Docklands Development Corporation (1995)

• The question whether the interference with
  television reception by a large building was
  capable of constituting an actionable private
  nuisance

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Hunter v Canary WharfFacts of the case

• In 1990 the Canary Wharf Tower , 250 m high and
  over 50 m square, was built
• The claimant and hundreds of others suing with
  her, claimed damages from the defendant for
  interference with reception of TV broadcasts in
  their homes
• The interference was claimed to have been caused
  by the tower

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Hunter v Canary WharfExtract from the judgement

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

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Hunter v Canary Wharf Extract from the judgement

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

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Hunter v Canary Wharf Extract from the judgement

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

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Hunter v Canary WharfExtract from the judgement

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

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Persuasive precedent

• A precedent that is not binding on the court, but
  the judge may decide that it is a correct
  principle so he is persuaded that he should
  follow it
• Sources courts lower in the hierarchy, obiter
  dicta, dissenting judgements, decisions of courts
  in other countries

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Avoiding precedent

• Distinguishing
• Overruling
• Reversing

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Distinguishing

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

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Overruling

• A court in a later case states that the legal
  rule decided in an earlier case is wrong
• A higher court may overrule a decision by a lower
  court (The Supreme Court overruling a decision of
  the Court of Appeal, or where the highest court
  (ECJ or the Supreme Court) overrules its past
  decision

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Reversing

• A court higher up in the hierarchy overturns the
  decision of a lower court on appeal in the same
  case
• The Court of Appeal may disagree with the legal
  ruling of the High Court in this situation they
  reverse the decision of the High Court

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Law Reports

• The development and application of the common law
  system pivots upon the existence of a
  comprehensive system of reporting cases
• The Law Reports the most authoritative and
  frequently cited set of reports

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History of Law Reports

• Law reports since 13th c. many early reports
  very brief and not always accurate
• Reports 1275 to 1535 called Year Books, short
  reports of cases, usually written in French
• 1535-1865 cases reported by individuals who made
  a business out of selling the reports to lawyers

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History of Law Reports

• 1865 the Incorporated Council of Law Reporting
  set up controlled by the courts
• Reports became accurate, with the judgment noted
  down word for word

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Law Reports

• Cases are not always reported in the year that
  they are decided so a case citation will refer to
  the volume and year in which the case was
  published, e.g. Meah v Roberts, 1978 1 All ELR
  97

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The structure of a law report

• 1. catchwords indicate what the case is about
• 2. headnote a summary written by the reporter
• 3. majority judgements, dissenting judgements

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Underlying principles

• Law should be stable, secure and predictable
• Similar cases should be decided in the same way
  and the decision should rely on the established
  tradition

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Advantages of precedent

• Certainty
• Consistency and fairness in the law
• Precision
• Flexibility
• Time-saving

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Certainty

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

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Consistency and fairness

• It is seen as just and fair that similar cases
  should be decided in a similar way
• The law must be consistent if it is to be credible

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Precision

• As the principles of law are set out in actual
  cases the law becomes very precise
• It is well illustrated and gradually builds up
  through the different variations of facts in the
  cases that come before the courts

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Flexibility

• Law can change since the highest courts can
  overrule cases
• Distinguisting cases also give all courts some
  freedom to avoid past decisions and develop the
  law

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Time-saving

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

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Disadvantages

• Rigidity
• Complexity
• Illogical distinctions
• Slowness of growth

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Rigidity

• Lower courts must follow decisions of higher
  courts bad decisions made in the past may be
  perpetuated
• Changes in the law will only take place if
  parties have the courage, persistence and money
  to appeal their case

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Complexity

• Half a million reported cases not easy to find
  all the relevant case law even with computerised
  databases
• Judgements often very long with no clear
  distinction between obiter dicta and ratio
  decidendi

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Illogical distinctions

• The use of distinguishing to avoid past decisions
  can lead to hair-splitting so that some areas
  of the law have become very complex
• Differences between some cases may be very small
  and appear illogical

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Slowness of growth

• Judges may be aware that some areas of law are
  unclear or in need of reform, but they cannot
  make a decision unless there is a case before the
  courts to be decided
• Only 50 cases reach the Supreme Court each year
  there may be a long wait for a suitable case to
  be appealed

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Activity

• Search at least one website address and find a
  recent law report
• www.lawreports.co.uk gives summaries of
  important cases in its Daily Law Notes section
• www.bailii.org has cases from the Court of
  Appeal and below

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Legal terms

• Binding
• Obvezujuci
• Jurisdiction 1) the power of the court to hear
  and decide a case or make a certain order 2) the
  territorial limits within which the jurisdiction
  of a court may be exercised 3) the territorial
  scope of the legislative competence of Parliament
• nadležnost

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Legal terms

• Ruling a decision made by someone with official
  authority such as a judge, magistrate, arbitrator
  or chairman
• Presuda, sudska odluka, službeno mišljenje
  državnog tijela

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Legal terms

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

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overrule

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

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overrule

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

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Exercise

• Replace the underlined words and phrases with the
  following
• Binding precedent, bound, cite, consider,
  distinguish, override, rely on/apply, revised

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

• 1. The courts are compelled to apply the
  precedent set by a higher court.
• 2. During the court case the judge will evaluate
  all the evidence and the legal issues.
• 3. Judges are required to follow the ratio, or
  reasoning, in relevant previous decided cases

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

• 4. However, the judge may note a case cited as
  precedent by counsel as materially different from
  the one at trial
• 5. It is, however, the role of counsel to refer
  to relevant previous case decisions
• 6. The principle of following the decisions of
  higher courts is fundamental to case law.

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

• 7. The Law Reports series are the most frequently
  cited reports because the text is edited by the
  trial judge.
• 8. New legislation may pay no attention to the
  decision of an earlier court judgment.

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Exercise 2
VERB NOUN ADJECTIVE
cite 0
apply
precede
persuasion
bind 0
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Exercise 3

• Complete the sentences with appropriate words
  from the table above
• 1. Well, that decision of the Appeal Court is
  going to be ...........on the case weve got at
  trial just now.
• 2. We need to convince the judge that the rule in
  Meah v Roberts is .......... to this case.

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Exercise 3

• 3. Can you check the case.....?
• I think the years wrong.
• 4. Should we add to our argument that Edwards v
  Peck is a .......precedent given the legal
  issues, although the judge isnt bound to follow
  it?

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Recent UK case reports

• www.courtservice.gov.uk
• www.lawreports.co.uk

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To be remembered

• Definition of precedent
• Hierarchy of courts
• Stare decisis
• Ratio decidendi
• Obiter dicta
• Law Reports
• Advantages and disadvantages of precedent