JUDICIAL PRECEDENT – FULL DETAILED NOTES (EASY ENGLISH)
INTRODUCTION
Judicial precedent means that judges use decisions from earlier cases to decide similar future
cases.
This is also called “case law”. It is a major source of law.
It helps keep the law fair, consistent, and predictable.
Judges must follow decisions made by higher courts in the court hierarchy.
5.1 THE DOCTRINE OF JUDICIAL PRECEDENT
The system is based on the Latin phrase “stare decisis”, meaning “stand by what has been
decided”.
When a judge makes a decision, later judges in similar cases must follow it.
This provides fairness, certainty, and stability in the law.
Judges make decisions when:
- They interpret Acts of Parliament
- There is no law written and they create new law
If later cases use similar rules, the earlier decision becomes a precedent.
5.2 RATIO DECIDENDI, OBITER DICTA AND LAW REPORTING
5.2.1 Ratio Decidendi
Ratio decidendi means “the reason for deciding”.
A judgment includes:
- Summary of facts
- Arguments by lawyers
- Legal principles used
The ratio becomes the binding part of the case. Judges in later cases must follow it.
5.2.2 Obiter Dicta
Means “other things said”.
These are extra comments by the judge which are NOT necessary for the decision.
They are not binding but may be persuasive.
Example: A judge may imagine different facts and say how they would decide – this is hypothetical
and obiter.
A problem: It can be difficult to separate ratio from obiter because judgments are continuous text
without headings.
5.2.3 Law Reporting
Judges need accurate records of past decisions.
Originally, reports were made by private individuals. Quality varied.
Since 1865, the Incorporated Council of Law Reporting improved accuracy and reliability.
Reports include:
- Case name
- Court
- Judges
- Facts
- Decision
- Ratio
- Obiter
Examples of reporting services:
- ICLR
- All ER
- WLR
Table of law reports (as in textbook):
- ICLR series: Appeal cases, QB, Chancery, Family, etc.
- All ER: All England Law Reports
- WLR: Weekly Law Reports
5.3 TYPES OF PRECEDENT
5.3.1 Binding Precedent
A binding precedent MUST be followed if:
- The earlier case is from a higher court
- Facts are similar
5.3.2 Original Precedent
When no earlier similar case exists, the judge makes a new rule.
This becomes an original precedent.
5.3.3 Persuasive Precedent
Courts do not have to follow it, but they may choose to.
Sources:
- Lower courts
- Privy Council decisions
- Obiter dicta from higher courts
- Dissenting judgments
- Courts of other countries following common law
Example: R v R (1991)
5.4 THE HIERARCHY OF THE COURTS
Courts must follow decisions of courts above them.
Appellate courts are normally bound by their own past decisions.
Civil Court Hierarchy:
1. Supreme Court
2. Court of Appeal
3. High Court
4. County Court
5. Magistrates' Court
Criminal Court Hierarchy:
1. Supreme Court
2. Court of Appeal (Criminal Division)
3. Crown Court
4. Magistrates' Court
5.5 SUPREME COURT & PRACTICE STATEMENT
Before 2009, House of Lords was the highest court.
Now the Supreme Court holds that role.
5.5.1 House of Lords’ past position:
They used to always follow their own past decisions.
5.5.2 Practice Statement 1966
The House of Lords announced they can change their own past decisions if needed to:
- Avoid injustice
- Update law
- Allow flexibility
First major use: Conway v Rimmer (1968)
Important use: Herrington (1972) – changed earlier law on occupier’s liability
Criminal use: R v R & G (2003) – changed recklessness rule
CASE EXAMPLES (from pages):
• Herrington (1972)
• Milangos v George Frank Textiles (1976)
• Murphy v Brentwood District Council (1990)
• R v R & G (2003)
• Austin v London Borough of Southwark (2010)
5.6 COURT OF APPEAL AND THE YOUNG’S CASE (1944)
General rule:
Court of Appeal must follow its own past decisions.
Exceptions (Young’s Case):
1. Conflicting past CoA decisions
2. A Supreme Court decision overrules it
3. Earlier decision was made per incuriam (mistake)
Extra exception for Criminal Division:
If liberty of a person is at risk, they can avoid following a past decision.
Cases mentioned:
• Schorsh Meier GmbH v Henning (1975)
• Miliangos v George Frank Textiles (1976)
• Broome v Cassell (1971)
• Rickards v Rickards (1989)
• R v Gould (1968)
• R v Spencer (1985)
5.7 AVOIDING PRECEDENT
5.7.1 Overruling
A higher court changes the legal rule of an earlier court.
Example: Herrington overruled Addie v Dumbreck (1929)
5.7.2 Reversing
A higher court changes the decision of a lower court in the SAME case.
5.7.3 Distinguishing
A judge shows material facts are different so they do not need to follow earlier precedent.
Examples:
• Rylands v Fletcher and Read v Lyons
• Balfour v Balfour (no intention = no contract)
• Merritt v Merritt (written intention = contract)
ADVANTAGES OF JUDICIAL PRECEDENT (in detail)
1. Certainty
People know what the law is.
2. Fairness
Similar cases treated similarly.
3. Consistency
Builds public confidence.
4. Precision
Law becomes detailed through many cases.
5. Flexibility
Practice Statement allows changes.
6. Time-saving
Law already exists in cases.
7. Fills gaps
Judges can make law where statutes are silent.
DISADVANTAGES OF JUDICIAL PRECEDENT
1. Rigidity
Hard to change older decisions.
2. Complexity
Thousands of cases.
3. Illogical distinctions
Judges may force differences in facts.
4. Slow development
Only develops when cases come to court.
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