ELS/CLRI - Doctrine of Precedent

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.