The Doctrine of Judicial Precedent

Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis ie, to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the law. It is desirable that similar cases should be decided in a similar manner because consistency is an important element of justice.

Moreover, judicial experience is that the practice of following previous decisions result in improved efficiency. The precedent on an issue is the collective body of judicially announced principles that a court should consideration when interpreting the law. When a precedent establishes an important legal principle or representative new or changed law on a particular issue, that precedent is often known as a landmark decisions. Stare decisis (Anglo-Latin pronunciation): /?st??ri d??sa?s?s]) is a legal principle by which judges are obliged to respect the precedents established by prior decisions.

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The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed. “In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters. This doctrine requires a Court to follow rules established by a superior court. The doctrine that holdings have binding precedence value is not valid within most civil law justice as it is generally understood that this principle interferes with the right of judges to interpret law and the right of the legislature to make law Law made by judges:

The legal systems within the United Kingdom were based largely on judge-made law until around the seventeenth century.

Each jurisdiction developed its own forms of common law. Since that time, new laws and law reform have increasingly been brought about through Acts of Parliament, usually inspired by policies of the Government of the day. Even so, the development of case-law still remains an important source of law. A statement of law made by a judge in a case can become binding on later judges and can in this way become the law for everyone to follow.

Whether or not a particular pronouncement by a judge sitting in court when deciding a case does become binding on later judges depends on two main factors: The pronouncement must be made by a court of sufficient seniority. Here is an expalantion of some case citations you might come across - Lamb [1967] 2 QB 981 (this means a case reported in the Law Reports); Thabo Meli v The Queen [1954] 1 WLR 228 (this means a case reported in the Weekly Law reports); Thornton [1992] 1 All ER 339 (this means a case reported in the All England Law Reports). The pronouncement must have formed the ratio decidendi of the case . The reasoning must be a matter pertaining to the law rather than a factual decision. Distinguish the facts of the case (as in Ingram v. Little 1961 and Lewis v. Averay 1972) - a judge who likes a principle set out in a case will extend it to completely dissimilar cases (examples abound, e. g. negligence in Donoghue v. Stevenson [1932] AC 562). Judges may find precedents unacceptable but can be unable to overrule - in this case they will attempt to distinguish, and may seize on the most minor and non-material fact to do so.

Cases may thus become authority only when the facts are exactly the same. This is a rare occurrence however, and judges tend to follow bad decisions. There are conflicting precedents (and the later one did not overrule the earlier precedent),choose the one its like best, although you are, technically, supposed to choose the most recent one, unless there is a good reason not to do so. ) (Colchester Estates v. Carlton Industries 1984). The one you choose will overrule the other.

A later statute that conflicts with the precedent - parliamentary supremacy reigns supreme. If the decision was made per incuriam (through carelessness) - where the court ignored or overlooked a relevant case or statute. Decisions made per incuriam are decisions given in ignorance of a binding authority". This means overlooked Hansard material showing a legislative intention at odds with the one reached cannot make a case per incuriam, since it is merely an interpretative aid and therefore not binding. The ratio is unclear (as in Central Asbestos v. Dodd 1972), you can ignore it - but if you wish to follow the earlier case, it can decide that even though the ratio is unclear, unless there is a reason why the earlier principle is not binding, could give the same decision. And judges are not liable for negligence. In Kingscastle v. Owen 1999 the Court of Appeal (Civil Division) decided that it could elect not to follow (but not overrule - merely adjourn) one of its own binding precedents on a point of law of public importance where there was an appeal on the same precedent pending to the House of Lords.

The House of Lords may never have an opportunity to correct the error; and thus it may be perpetuated indefinitely, perhaps for ever. "- Davis v. Johnson [1979] AC 264 Lord Denning There is strict adherence to precedent by judges. HL 1966 Lord Gardiner issued a practice statement, that HL can depart from their own previous decisions of which they had previously bounded by them. This case would be The London Transways Co Ltd. V London Borough Council in 1989. There are more prepared to apply the practice statement 1966.

In R v R (rape - marital exemption) [1991] was the retrospective overruling. And Hall v Simons (2000) HL- examples of departing - significance of obiter refuse to follow earlier case of Randle v Worsley(1969) which has given Barristers immunity against claims of negligence for their presentation of case in court. It can also be argued that precedents are uncertain; in the sense that a well established precedent can be overruled at any time as occurred in R v G and R v Caldwell. A bad law of a superior court may operate as a handle for legal development.