Free Law Dissertations - (a) The Doctrine Of Judicial Precedent Involves Application Of The Principle
(a)
The doctrine of judicial precedent involves application of the principle of stare decisis, which means to stand by cases already decided. Decisions made in the House of Lords bind all courts in the Country except the House itself. The House of Lords will usually follow its own decisions but will depart where it seems right to do so [Ref1].
Decisions made in the Court of Appeal bind courts below it and usually bind itself, unless its own previous decisions conflict, are incompatible with a decision made in the House of Lords even if not expressly overruled, or were made per incuriam (by mistake) [Ref2]. The precedent is followed less rigidly in the criminal division where a person’s liberty is at stake.
Decisions made in the High Court bind the County Courts but not other High Court judges.
The exception to this hierarchy is that all courts must follow the decisions of the European Court of Justice on matters of EC Law and on the interpretation of secondary European Community legislation. Further, they must have regard to the judgements of the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe on questions relating to rights guaranteed under the European Convention on Human Rights.
It is the ratio decidendi of a case which gives the principle of law that becomes binding under the doctrine of judicial precedent. Ratio Decidendi is a latin phrase meaning the reason for the decision. It refers to the way a court reasons and applies the law in order to come to a particular decision. The ratio of a case will only be binding on a later case where the legal principle involved is the same and the facts are sufficiently similar. Any other reasoning within the case is said to be ‘obiter dicta’, meaning ‘by the way’.
Comments made obiter dicta, together with decisions of lower courts, dissenting judgements, legal journals and text books, roman law, and decisions of courts in Scotland, Ireland, the Comnwealth and the USA may all be persuasive precedent. Persuasive precedent is not binding but may be considered, particularly where there is no authority on the point of law. For example, in the v British Airways Board (1982), Donaldson LJ considers the general definition in Arry v Delamirie which was decided in the King’s Bench division of the High Court [Ref3].
Although the doctrine provides a degree of certainty and consistency, there are times when a judge may wish to depart from or extend the application of a previous decision, perhaps to avoid injustice or to ensure proper development of the law to meet changing conditions. Donaldson LJ explains that one advantage of comn law is that it is flexible to take account of the changing needs of a continually changing society. Accordingly, judges need to find ways to enable them to avoid using the doctrine as merely a mechanical exercise and instead, to consider previous cases as ‘stepping stones’ rather than ‘halting places’ [Ref4].
