Judicial Precedent (Case Law)

The nature of judicial precedent

In examining the development of our law reference was made to the role played by the judges in its evolution, the common law and equity being the product of judicial reasoning in that they have both evolved through the system of case law whereby law is made for the purpose of the decision of the specific case before the court. It is natural that if a similar dispute should arise again then the previous decisions should be used as a precedent and in this way the law becomes more certain and more uniform in its application. This practice of referring to previous decisions and arguing by analogy to them of the present case in order to arrive at a judgment is known as the application of judicial precedent.

Binding and persuasive precedent

Judicial precedents have played and continue to play an important role in the administration of Justice under the English legal system. But they do more that this, for not only are they regarded as authoritative pronouncements of law, but certain precedents are regarded as binding upon courts which are subsequently called upon to try similar issues. Such precedents are not merely persuasive authorities which may be followed if the appear to be correct; they are precedents which must be followed.

Ratio decidendi and obiter dicta

For a judicial decision to be binding on subsequent courts, the decision must be ratio decidendi. The ratio decidendi of a case is the reason for the actual decision or the principles underlying the decision, and if the judge made a clear statement of the reason for his decision, or laid down a legal principle, it would not be difficult to extract the ratio decidendi, but this is not often the case.

Many matters would have to be taken into consideration before it can said with certainty what the true reason may have been, such as the circumstances and the facts in the case, the arguments of counsel on both sides and the state of the law at the time when the decision was given. In addition, a judge may give several reasons for his decision and the court may be composed of several judges and each judge may give a different reason for the court’s judgment. A true ratio decidendi is a product of material facts.

The ratio decidendi must not be confused with obiter dicta. Such expression of opinion or illustrations emanating from the Bench during the course of the judgment have no binding force , as does ratio decidendi; they are simply statements “ by the way” but they do possess some authority which is entitled to respect varying with the reputation of the particular judge.

Judiciary hierarchy

Significance in the operation of the binding system of judicial precedent is the hierarchical structure of the court system, for whether a court is bound to follow a previous decision depends to a very large extend on which court gave the previous decision. Generally, if the decision was of a superior court then the lower court must follow it but superior court is not bound by the previous decisions of the inferior court. The hierarchy of the courts as regards the operation of precedent is as follows:

House of Lords

With the exception of decisions made ‘per incuriam’, ie, where an important case or statute has not been brought to the attention of the House when the previous decision was made, the House of Lords was bound by its own former decisions. However, in 1966, the Lord Chancellor issued a statement that in future the House of Lord would not regard itself as bound by its own decisions.

Note. All decisions of the House of Lords are absolutely binding on all other courts.

The Court of Appeal

This court is bound by its own pervious decisions, as well as those of the House of Lords: The Court however is not bound by its own previous decisions

a) where it considers that a decision was made ‘ per incuriam’, ie, in error b) where there are two previous conflicting decisions, the court may choose which decision is correct and the other decision is overruled; c) where a later House of Lords decision applies, this must be followed.

Decisions of the Court of Appeal bind all other lower courts, but do not bind the criminal Division of the Court of Appeal

The High Court (Supreme Court)

A High Court judge is not bound by decision of another High Court judge although he would treat such decisions as of strong persuasive authority. The High court is bound by decision of the House of Lords and the Court of Appeal.

The inferior Courts

The magistrate’s courts are bound by decisions of the superior courts. The inferior courts are not bound by the own decisions as they cannot create precedent.

It must be realized that the system of precedent is not as mechanical as would appear from the above and a court is not always bound to follow a precedent which according to the rules outlined above ought to be binding upon it. In particular the court may be able to distinguish the case before it from the previous case on the facts.

Where a higher court considers a precedent by a lower court is not the correct law, it may overrule that precedent when another case is argued before it on similar facts and thereby set a new precedent to be followed in future cases. Alternatively, the superior court may consider that there is some doubt as to the standing of a previous principle and may disapprove, but not expressly overrule the earlier precedent. A decision is said to be reversed when the party who lost the case appeals to a high court, and the appeal is allowed.

Advantages and disadvantages of Precedent

Advantages

i. Certainty: It provides a degree of uniformity upon which individuals can rely. Uniformity is essential if justice is to be achieved. ii. Development: New rules can be established or old ones adapted to meet new circumstances and changing needs of society. iii. Practicality: The rules are laid down in the course of dealing with cases, and do not attempt to deal with future hypothetical circumstances. iv. Flexibility: A general ratio decidendi may be extended to a variety of factual situations.

Disadvantages

i. Rigidity: Precedent is rigid in the sense that once a rule has been laid down it is binding even if it is thought to be wrong. ii. Danger of illogicality: This arises from the rigidity of the system. Judges who do not wish to follow a particular decision may be tempted to draw very fine distinction in order to avoid following the rule, thus introducing an element of artificiality into the law. iii. Bulk and complexity: There is so much law that no-one can learn all of it. Even experience lawyer may overlook some important rule in any given case. iv. Isolating the ratio decidendi: where it is difficult to find the ratio decidendi of a case this detracts from the element of certainty.

Review Questions

a. Explain the concept case law b. Differentiate between binding and persuasive precedent c. What factors are required to exist if the system of binding judicial precedent is to operate? d. Differentiate between the terms res judicata, ratio decidendi and obiter dicta. e. Explain three sitiations where a precedent may cease to be binding.