Essay: The Doctrine of Precedent

This essay will explain about how the doctrine of precedent operates in the English legal system, and explain when judges are, or are not, bound to follow previous decisions. The first part will define the Ratio Dicidendi, the Stare Decisis and the Obiter Dicta in the English legal system, and the second part will describe the types of precedent and how to operate doctrine of precedent, and how to avoid judicial precedent. This essay will argue about how the method of distinguishing can be applied by the judge, why it may need to be applied and the problems associated with distinguishing. Then the essay will discuss about overruling which is where, a higher court decides that the first case was wrongly decided in a subsequent case.
First, the English court hierarchy system consisted five levels of courts. The highest to the lowest are the Supreme Court, Court of Appeal, Divisional Courts, High Court, Crown Court and Magistrates’ Courts & County Courts. One of the most essential elements of English legal system is the doctrine of precedent. According to Martin (2015), the doctrine of precedent means that the legal decisions made by judges in higher courts are continued as a precedent, so the earlier decision made in the higher courts will be followed by lower or equal courts’ decision in the future. For example, once judges in the Supreme Court or the Court of Appeal make a decision to a case, the lower courts have to follow the decision in the future cases as regards to share similar facts as a binding precedent.
In every cases, judges will provide judgments upon their decisions. Two types of states will be provided in a judgment, which are the Ratio dicidendi and the Obiter dicta.
The ratio dicidendi means the reason for the decision. It is the main reason why the judge makes the decision in a case. The decision would be conducted by the rule of law and, it is a general statement that particular details in each case does not involve. It is set for the precedent in the future case decision to be applied. An example of the ratio dicidendi, in the case Donoghue v. Stevenson (1932), a client became ill and suffered personal injury after drinking spoiled ginger beer which was a decomposed snail inside the bottle. She sued the manufacturer, and the ratio dicidendi is ‘a person owes a duty of care to those who he can reasonably foresee will be affected by his actions, that person must take reasonable care to avoid acts or omissions which he/she can reasonably foresee would be likely to injure others’. Her claim was successful. Since then, the ratio of Donoghue v. Stevenson (1932) brought major promotion to the law of negligence and established the neighbour test.
The other statement provided in a judgment is called the Obiter Dicta. According to the Partington (2015), the primary reasoning of the decision does not account by the Obiter Dicta; therefore, the future decisions will not be bundled. Although it is not a part of the precedent, some of the future case can be referred by the Obiter Dicta in order to make the certain view of the law being more persuasive. Therefore, the judges have the choice to whether follow or not to follow. An example of the ratio dicidendi, in the case Central London Property Trust v High Trees House (1947), the Obiter Dicta was well illustrated. In this case, one of the landlord decided to receive the half of the rental fee in order to deal with difficulties in finding tenants during the time of Second World War, however, a company had already leased a number of flats for 99 years. After the war, the landlord wanted the rental fee to be as used to be. The judge Denning J decided that the landlord should take the full rental fee again, and in the obiter dicta of the case, he added that the landlord would have been stopped from demanding, and since this case it has sometimes been decided that if the other party is led to believe they will not rely on strict terms of contract for one party, it is variable.
The original precedent means that there will be a new precedent to be set, as there is no previous decision for the judge to follow until that point of time. It means that there will be new ratio dicidendi to follow when there is a similar future cases. The judge would give the reason by similarity as there was no earlier decision to follow. However, judges would try to look for the nearest cases to consult. As an example of an original precedent, there is a famous case Donoghue v. Stevenson (1932) which brought a major development on the negligence law. Although there was a concept of a duty of care within particular circumstances, this case extended its appeal and the point of law as Lord Atkins made the precedent as known as the neighbour principle.
The binding precedent is a legal rule made in a superior court of the hierarchy, the rest of courts in hierarchy below the court must follow the rule. It means that the highest court in the hierarchy, the Supreme Court is liable to every court which includes itself. That means the lower court is liable to follow the superior courts’ decision when dealing with similar case. The example of binding precedent can be found in Gomez case which followed the precedent created in Morris case. The binding power of Court of Justice over the English Law system can be seen in the case of Pickstone v. Freemans and Finnegan v, Clowney Youth Training Programme Ltd [1990] 2 All ER 546.
The persuasive precedent is more flexible in among three types. Although the persuasive precedent is not binding to the court hierarchy, but if they find it essential for the case or adequate reasoning, judges are able to use the persuasive precedent. It is not only opened to use the obiter dicta, but also opened to the precedents made by the lower courts. The persuasive precedent can be from decisions from the privy council, treaties, and even from the law review articles within the relevance to the case and the right vastness of respectability of the author. The case of R v R (1991) could be an example of persuasive precedent. In this case, the House of Lords accepted the decision made by the Court of Appeal that a raping can be established between a husband and a wife. The other source of the persuasive precedent is from the obiter dicta stated by judges.
The doctrine of precedent is an essential part of the English legal system as it provides an actuality to the law and sets up the hierarchy structure of the court system. Although some said it is stiff and unbending, the orientation of social changes was attempted, and it opens to the time and start changing.
There are some methods to avoid judicial precedent. The first one is distinguishing. Only if the legal principle involved is the same and the facts are similar, a previous case will be bind in a later case. Judges, in order to avoid the consequences of an earlier inconvenient decision, which is binding on them in strict practice by distinguishing a case on its facts, or on the point of law involved by using devices. The definition of reasonably distinguishable depends on the particular cases and the particular court. There are two cases which are often cited as a demonstration of how distinguishing works. The cases are Balfour v Balfour (1919) and Merritt v Merritt (1971). In both cases a wife made a claim against her husband for breach of contract. The second method is overruling. According to Curzon & Richards (2007), a higher court can overrule a decision made in an earlier case by a lower court. For example, the Court of Appeal can overrule an earlier High Court decision. The cases of Pepper v Hart (1993) and Davis v Johnson (1978) provided a good example of the principle of overruling by the House of Lords using its authority under the Practice Statement 1966. In Pepper v Hart, the House of Lords decided that Hansard could be admitted in evidence before the court when trying to decide what was meant by particular words in a statute. This meant that the earlier decision of Davis v Johnson to the effect that Hansard could not be consulted, no longer represented the law and was overruled. The third method is reversing. According to Curzon & Richards (2007), reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing the appeal. The appeal court will then substitute its own decision.