This post is specifically being written as a request from a Facebook fan
asking for help in respect of English Legal System and, in particular, the
doctrine of Precedent.
Now, I am not intending to 'teach' you about Precedent. Rather, I
want to clarify, and also guide you as to the types of questions you would get
in this area, and how you would address them. Based on your reading,
whether textbooks, or other publications, you should now know that Judicial
Precedent is the process by which judges follow previously decided cases
where the facts or point of law
are sufficiently similar. You should also understand that the doctrine is
unique to the common law system and so it
is unknown in civil law jurisdictions like Germany and France . The
doctrine stands on the stare decisis principle (‘let the decision stand’),
meaning that a decision from a previous judgment will be followed in similar
subsequent cases and will (supposedly) ensure certainty, consistent and clarity
in the law. So the idea, is that by having a consistent application of
the law, this can then be used as a prediction in later, similar, cases.
Where you want to really consider the doctrine, is when you have a
question which looks at the doctrine not being followed, or judges departing --
so judicial activism, for example in the area of statutory interpretation.
The point with statutory interpretation (and judicial activism) is that
on the one hand, there is the intention to allow the development of the common
law, whilst affecting the traditional notion of precedent.
The
body of decisions made by the higher courts, which the lower ones must respect,
is known as case law. Case law comes from the decisions made by judges in
the cases before them (the decisions of juries do not make case law). In
deciding a case, there are two basic tasks: first, establishing what the facts
are, meaning what actually happened; and secondly, how the law applies to those
facts. It is the second task that can make case law, and the idea applies to a
particular set of facts, similar facts in later cases should be treated in the
same way, following the principle of stare decisis. This is clearly a far more fairer system than
allowing each judge to interpret the law differently. It also provides
predictability, which makes it easier for people to live within the law.
The judge listens to the evidence and the legal argument and then prepare
a written decision as to which party wins, based on what they believe the facts
were and how the law applies to them. This decision is the judgment. The explanation of the legal principles on which the
decision is made is called the ratio decidendi – Latin for the
‘reason for deciding’. It is this part of the judgment, known as binding
precedent, which forms case law. All the parts of the judgment which do
not form part of the ratio decidendi of the case are called obiter
dicta. This is Latin for ‘things said by the way’.
In deciding a case, a judge
must follow any decision that has been made by a higher court in a case with
similar facts. The rules concerning which courts are bound by which are known
as the rules of judicial precedent, or stare decisis. As well as being bound by
the decisions of courts above them, some courts must also follow their own
previous decisions; they are said to be bound by themselves. In order to
appreciate this I will ask you to go back to your textbooks to look at the
structure and hierarchy of the courts in England and Wales, from the Supreme
Court, down to the Magistrates' Courts and Tribunals.
One
of the more activist judges, was Lord Denning. We see him being
'promoted' to the House of Lords, however, by choice, he returned to the Court
of Appeal. He seemed to be on a mission to persuade the House of Lords
(now Supreme Court) that the Practice Statement applied to both the House of
Lords and the Court of Appeal.
Now
the vast majority of cases terminate in the Court of Appeal and so one could
understand Denning's reasoning. However, if each judge in the Court of
Appeal did what he/she liked, it would certainly affect (and upset) the
certainty basis of Judicial Precedent. The various cases where Lord
Denning has dissented, and then it has become law later on are numerous.
Consider for example Candler v Crane Christmas (which then gave rise to
the principle in Headley Byrne v Heller regarding liability for negligent
misstatement).
One very good example, but which had dire consequences,
was Broome v Cassell (1971). The Court of Appeal refused to follow
the decision of the House of Lords in Rookes v Barnard [1964],
on the principles for the award of exemplary damages in tort. They based the
refusal on the ground that Rookes
v Barnard was wrong and decided per incuriam, in ignorance of
two previous decisions of the House. When Broome v Cassell & co. Ltd reached the House of
Lords, the Law Lords castigated the Court of Appeal for its disloyalty, with
Lord Hailsham saying: "[I]t is not open to
the Court of Appeal to give gratuitous advice to judges of first instance to
ignore decisions of the House of Lords in this way and, if it were open to the
Court of Appeal to do so, it would be highly undesirable ....The fact is, and I hope it
will never be necessary to say so again, that, in the hierarchical system of
courts which exists in this country, it is necessary for each lower tier,
including the Court of Appeal, to accept loyally the decisions of the higher
tiers."
The most unfortunate thing
of all, as Denning, later showed by his remorse and regret when writing in one
of his books, the approach he adopted in Broome v Cassell & co. Ltd meant that the court
ordered Commander Broome to pay part of the costs of the hearing in the Court
of Appeal, which he would not otherwise have had to do had the decision not
been what it was.
As you approach this area
(like any area) and in answering an exam question, remember that just reciting the principle will never ever be
enough. Know what the 'issue' in an area is...and for judicial
precedent, the issue is the activist judges and the devices used to circumvent
precedent (e.g., distinguishing, etc). So in answering, look at EXACTLY what is asked about the question, dissect it, and then discuss in the answer, what has been raised.
