JUDICIAL PRECEDENT REVISION NOTES
• Stare Decisis – ‘stand by what has been decided and do not unsettle the
• Supports idea of fairness & provides certainty.
• Where past decisions of judges creates law for future judges to follow. Higher
courts bind lower courts and in some cases themselves.
• Created by the ratio decidendi
• Referred to as ‘case law’.
• Cases which illustrate stare decisis – Knuller v DPP and Jones v Secretary of
State for Social Services (where despite regarding an earlier decision as
wrong, refused to overrule using the practice statement, preferring certainty)
• Accurate law reporting is essential for stare decisis to operate
• Stare decisis can be avoided by distinguishing, overruling and reversing
Typical Exam Question: “Describe the concept of stare decisis using the source and
cases to illustrate your answer.”
• Principles of law used to decide a case – ‘reason for deciding’.
• Sir Rupert Cross: ‘any rule expressly or impliedly treated by the judge as a
necessary step in reaching his conclusion’.
• The part of the decision that forms the precedent for future cases to follow.
• The remainder of the judgement. ‘Other things said’.
• Judge in future cases does not have to follow but may be persuasive (Howe &
• Separating the ratio and obiter
• More than one speech at the end of the case with different reasons for
decisions (rationes decidendi)
Types of Precedent
o if point of law which has never been decided forms new precedent
o Judge may look at cases which are closest in principle and use similar
rules (reasoning by analogy)
o Here, the judge has a law making role (creating new law).
o Cases: Hunter and Others v Canary Wharf Ltd and London Docklands
Development Corporation (1995)
o Precedent from an earlier case which must be followed even id the
judge in the later case doesn’t agree with the legal principle.
o Only created where facts are sufficiently similar and when decision
was made by a court which is senior to (or in some cases the same
o Precedent that isn’t binding on the court but the judge may consider
it and decide it is the correct principle and is persuaded to follow it.
Courts Lower in the Hierarchy:
R v R (1991) – the H of L agreed with and followed the same reasoning of the
C of A when deciding that a man could be guilty of raping his wife.
Decisions of the Privy Council
since many of its judges are also members of the H of L’s, their judgements
are treated with respect any may often be followed.
A-G for Jersey v Holley (2005) (PC) followed in R v James; R v Karimi (2006) by
the C of A instead of following a H of L precedent.
Statements made Obiter
R v Gotts (1992) – CA followed obiter of HL in R v Howe(1987)
A dissenting judgement
• Hedley Byrne v Heller & Partners followed dissenting judgements in Candler v
Crane Christmas & Co (1951).
Decisions made by courts in other countries:
• Re A (2000) Conjoined Twins; Re S Refusal of Medical treatment
• American precedent
Typical Exam Question: “the source refers to ‘persuasive precedent’. Using the
Source and other cases, describe how persuasive precedent works.”
Hierarchy of courts
COURT COURTS BOUND BY IT COURTS IT MUST FOLLOW
ECJ All courts None
HL All courts in the ELS ECJ
CA Itself (with some ECJ & HL
DC & all other lower
DC Itself (with some ECJ, HL, CA
exceptions); HC & all other
HC County Court; Mags ECJ; HL; CA; DC
CC Possibly Mags All Higher Courts
MC None All Higher Courts
House of Lords & Precedent
court has the flexibility to refuse to follow an earlier case when ‘it appears
right to do so’.
phrase very vague and gives little guidance as to when they should overrule a
The house has been reluctant to use the power, especially in the first few
years. (Knuller v DPP; Jones v Secretary of State.)
Reluctance More willingness to use Criminal Law Recent Use
Conway v Rimmer (1968) Miliangos v George R v Howe R v R and G (2003)
Frank (Textiles Ltd) (1987)
Herrington v British Railways Board Horton v Sadler and
(1972) Murphy v Brentwood R v Shivpuri another (2006)
District Council (1990) (1986)
Jones v Secretary of State for Social A v Hoare (2008)
Services (1972) Pepper v Hart (1993)
Knuller v DPP (1973)
The Court of Appeal & Precedent
Decisions of the Courts above it:
The CA binds Itself (with exceptions) and is bound by the HL and ECJ. Can depart
from HL decision in human rights cases where it is different from the decisions of the
Lord Denning: an avid champion of the view that the CA should not be bound by the
decisions of the HL. (
Broome v Cassell & Co Ltd (1971) LD refused to follow the HL in Rookes v Barnard
Schorsch Meier GmbH v Henning (1975) and Miliangos v George Frank (Textiles) Ltd
(1976) the CA refused to follow HL in Havana Railways (1961) which said that
damages could only be awarded in sterling.
On appeal to the Lords they pointed out that the CA had no right to ignore overrule
decisions of the HL. However the HL then went on to use the Practice Statement to
overrule its own decision agreeing with the reasoning of Lord Denning.
Reasons for Reasons Against
• Cases could be decided on their own merits • It would make the law less certain as CA
making judgments more equitable; could overrule HLs;
• The law would potentially move more with
changing social conditions; • It would make advice given by lawyers
• It would be quicker to change incorrect less precise;
• It would make the law less rigid; • It may cause an increase in litigation;
• Avoids costly and lengthy appeals to update the
law to the HL’s • Courts would be confused over which
• Very few cases reach the HL’s precedent to follow.
CA & Its own decisions
One division of the CA will not bind the other
Within each division, decisions are normally binding.
Young v Bristol Aeroplane Co Ltd (1944) – although there are limited
conflicting decisions in past CA cases - can choose
a decision of the HL which effectively overrules a CA decision - CA
must follow the decision of the HL
decision was made per incuriam
Denning tried to challenge the rule in Young’s case but in Davis v Johnson the
court “expressly, unequivocally and unanimously reaffirmed the rule in
Justifications: there would be a risk of confusion and doubt if the CA was not
obliged to follow its own past decisions. Although the HL’s needs power to
review as it is the last court of appeal, the CA does not as their errors can be
corrected by the HL’s.
Per incurium case examples:
Williams v 5awcett (1986); Rickard v Rickard (1989)
‘rare and exceptional cases’ that the CA would be justified in refusing to follow
a previous decision.
Can also refuse to follow a past decision if the law has been ‘misapplied or
because people’s liberty is at stake, R v Spencer (1985)
Typical Exam Questions:
“Using the source and other cases, describe the powers of the Court of Appeal”
“Discuss whether or not the powers of the Court of Appeal within the doctrine of
precedent should be extended”.
The Privy Council & Precedent
• Decisions not usually binding but form persuasive precedent.
• Usually follow decisions of the HL except where the point of law has
developed differently in the country from which the appeal has come.
• Unusual case = A-G for Jersey v Holley – PC refused to follow HL’s decision in
Smith (Morgan James). CA in ELS then followed Holley rather than Smith
because the decision was made by 6 law lords.
Typical Exam Questions
Consider each of the following situations and explain how the doctrine of precedent will apply. Give
case examples where necessary.
(i) A case comes before the House of Lords in 2008. There is a previous precedent decided by the
House of Lords in 1951. [5 marks]
A case comes before the Court of Appeal (Civil Division) in 2008. There is a previous decision by the
House of Lords in 1980. [5 marks]
A case comes before the Court of Appeal (Civil Division). There are two past conflicting precedents,
one from the House of Lords in 1995 and the second from the Privy Council decided in 1999. [5
Consider each of the following situations and explain whether or not the Court of Appeal can depart from the
previous decision. Give case examples where necessary.
(i) A case concerning a death resulting from medical negligence was heard by the Court of Appeal (Civil Division). A
year later, a similar issue is being heard by the Court of Appeal (Criminal Division). [5 marks]
(ii) A case concerning breach of contract was decided by the Court of Appeal (Civil Division). Days later a similar
issue is heard by the same court but the judges now feel that the decision should be different. [5 marks}
(iii) A case concerning murder was decided by the House of Lords. The Court of Appeal (Criminal Division) believes
the decision of the House of Lords is out of date. [5 marks]
In the case of Herrington v British Railways Board (1972) the House of Lords decided to overrule the decision that
they had made years earlier in the case of Addie v Dumbreck (1929). Consider how the doctrine of precedent
would apply had the cases of Herrington v British Railways Board and Addie v Dumbreck been heard in the
following situations and on the following dates instead of when they were actually heard.
(i) Addie v Dumbreck was decided by the House of Lords in 1950. Herrington v British Railways Board comes before
the House of Lords in 1951. [5 marks]
(ii) Addie v Dumbreck was decided by the House of Lords in 1950. Herrington v British Railways Board comes before
the House of Lords in 1967 [5 marks]
(iii) Addie v Dumbreck was decided by the Court of Appeal (Civil Division) in 1950. Herrington v British Railways
Board comes before the Court of Appeal (Criminal Division) in 2006 [5 marks]
Ways of avoiding Precedent
Distinguishing: The judge finds that the material facts of the case are sufficiently
different for him to make a distinction between the case he/she is hearing and the
past one. – He is then not bound to follow it. Balfour v Balfour (1919) & Merritt v
Overruling: The court in a later case states that the legal rule in an earlier case is
wrong. It may happen when:
◦ A higher court overrules a decision made in an earlier case by a
◦ The ECJ overrules a past decision it has made
◦ The HL’s use the practice statement to overrule a past decision of its
Pepper v Hart (1993) overruling Davis v Johnson (1979)
Reversing: A court higher up the hierarchy overturns the decision of a lower court on
appeal in the same case. E.g. the CA disagrees with a ruling of the high court/crown
court and reverses their decision by coming to a different view of the law.
Typical Exam Questions:
Explain with method of avoidance is most suited to each of the scenarios below. Illustrate your
answer where appropriate.
(i) The House of Lords with to depart from a past decision of their own. [5 marks]
(ii) On appeal, the Court of Appeal disagrees with a ruling of the High Court and wishes to replace
it with a different decision. [5 marks]
(iii) A judge in the Crown Court does not wish to follow a past precedent of a higher court as she
feels that the facts are slightly different. [5 marks]
“Using the source and other cases, explain how lower courts can avoid the doctrine of precedent.”
“Discuss the advantages and disadvantages of giving the lower courts more flexibility in avoiding the
doctrine of precedent.”
Judicial Law Making
It is well recognised now that judges do use precedent to create and extend law.
Some areas of law owe their very existence to decisions by the judges.
Law of Contract:
Nearly all the main rules come from decided cases.
Many were made in the 19th century but still affect the law today
Tort of Negligence:
Developed & refined by case law. Donoghue v Stevenson (1932) is an important
starting point in its creation of the ‘neighbour principle’. Alcock v Chief Constable of
south Yorkshire (1991) involving claims by people who lost relatives in the
Hillsborough disaster, laid down the guidelines for liability for nervous shock where
there has been negligence.
Judges have played a major role in developing the law on intention. (Moloney;
Hancock & Shankland; Nedrick; Woolin); It is only because of judicial decisions that
intention for muder included intent to cause GCH as well as intent to kill.
Judicial decisions have created new crimes. Shaw v DPP created the offence of
conspiracy to corrupt public morals. R v R decided that rape within marriage could
be a crime.
But there have been occasions where the HL’s have refused to change the law saying
that it was Parliaments job. (C v DPP which involved the age of criminal
Advantages & Disadvantages of Precedent
Consistency & fairness in the law Complexity
Precision Illogical Distinctions
Flexibility Slowness of Growth
Typical Exam Question
“What effect would the abolition of the doctrine of binding precedent have on the
On order to follow past decisions there must be an accurate record of what those
First records 1275-1535 (year books); 1535-1865 individuals made a business of
selling reports to lawyers but they lacked accuracy and detail; 1865 Incorporated
Law Council of Law Reporting was set up and controlled by the courts. Reports
became accurate and reliable which helped in the development of the strict doctrine
of precedent. These still exist and are published according to the court that the case
took place in.
Also now there are other well established reports: All ER; WLR; Newspapers and