Introduction to Precedent by Komilla ChadhaDocument Transcript
All about PrecedentWhat is precedent?Precedent is a judicial judgement which can be binding on subsequent judges. The doctrine of ‘staredecisis’ underpins the notion of precedent. The development of precedent is an extension of thecreation of equity/equitable maxims. It is suggested that you read my post on equity to gain insighton how and why precedent is an important component of a common-law system.What is Stare Decisis then?Stare decisis is latin for ‘let the decision stand’ and it is used because it introduces the notion ofpredicability and accuracy within the ELS (English Legal System). Essentially it is the notion that alllike cases should be dealt the same.Types of Precedent- Binding precedent, these are precedents made by higher courts and the ratio decidendi is the part which is binding.- Decisions made by lower courts and commonwealth countries are also precedent but like obiter they are not binding. It should be noted that nevertheless they can be used to found decisions. These are called persuasive precedents.Dissecting Precedent- The ratio decidendi is the binding part of the case it is the legal principles or rationale behind the decisions.- The parts of the judgement that do not form part of the ratio decidendi are called obiter dicta statements, they are things said by the way.- The division of judgements is more theoretical as opposed to practical, in reality the boundary is fuzzy and not always possible to highlight.Exceptions from Stare DecisisExamples of how courts can get out of stare decisis...- Original precedent - Where no previous precedents of judge made laws exist so an original precedent must be created.- Distinguishing cases - By distinguishing two cases the judge can justify not utilising the precedent of a similar case.- Practice Statement 1966 - allowing higher courts to depart on their own decisions - This is a statement made in the House of Lords by Lord Gardiner stating that the House of Lords and Lords of Appeal have the power to depart from precedent in order to achieve justice. One of the reasons advocated for the installation of the Practice Statement is that the current legal system was not allowing the development of law.- Reverse or overrule precedents of lower courts - If a case has been reversed it means whatever judgement was given previously e.g. claiment does this and defendant does that, has been swapped and reversed by a higher court. Similarly, if a case was overruled than that means that the previous decisions have been made null and void.
- Per Incuriam - If a court had made a decision per incuriam then that means it did not take into account all the relevant and vital statutes or case authorities that can inﬂuence judgements.- Human Right Act 1998 - As the Human Rights Act is of absolute importance any standing precedents which are potentially incompatible with it are open to discussion and scrutiny and on this grounds be overruled potentially.- European Court of Justice - Where the precedent conﬂicts with decisions made by ECJ such as R v Secretary of State for Transport ex p Factortame 1990 - , a Spanish ﬁsherman claimed the the English Merchant Shipping Act 1988 was not in line with European law and so the Supreme Court agreed with the ﬁsherman and European Court. They had the English act overruled stating that ‘when delivering judgement, to override any rule of national law found to be in conﬂict with any directly enforceable rule of Community law’- Lapsed Rule Campaign - Lord Denning sought to make the Court of Appeal not bound on its own previous decisions or those on the House of Lords, but this campaign failed and now only rarely is the Court of Appeal allowed to go against its own decision and thats more where there are conﬂicting decisions pre-existing.How precedent evolved?- It is advisable to look at post concerning equity [ http://musingswithkomilla.blogspot.co.uk/2012/03/law-history-equity.html ].Advantages and Disadvantages of precedentAdvantages- Certainty (stare decisis), Consistency (cases treated alike) and fairness that they are all treated equally.- Time Saving - easy to ﬁnd pre-existing precedents- Flexibility - Scope for law to develop to our changing environment via exceptionsDisadvantages- Complexity and Volume - a lot of cases to go through and differing opinions on whether cases are alike- Rigidity - binding and it is difﬁcult to ﬁnd exceptions unless you are part of a high court.- Illogical distinctions - sometimes binding precedents push judges to distinguish cases which seem illogical and causes complexity.- Judges make decisions baring in mind previous cases etc but they do not include current economic and social trends always- Sometimes it is clear that an area of law needs reform but without an appropriate case judges are not able to do so like parliament is with legislation- Judges are undemocratically given their positionCases
Case What happened What does it showMiliangoes v George Frank It was previously decided The application of theLtd  that all claim for damages Practice Statement 1966 had to be given in sterling and it is important for but given the international keeping law on the same trade element of this case, pages as social and the House of Lords decided economic environments. otherwise.Caparo v Dickman  The claimant bought shares Following this case a 3-fold in a company which shortly test for duty of care was after fell in value causing established based on the economic loss to the dicta of a High Court Judge claimant and so sued the in Australia defendant for their negligence.R v Secretary of State for - Spanish ﬁsherman claimed Inﬂuence of EuropeanTransport ex p Factortame the the English Merchant Community.1990 Shipping Act 1988 was not in line with European law and so the Supreme Court agreed with the ﬁsherman and European Court. They had the English act overruledR v R 1991 - martial rape In this case the judges rule Example of how commonexemption that marital rape can exist law reasoning and previously it was precedent can bring about understood that marriage change was a ultimate consent to sexual activity but common law and precedent change this.