Terms of reference

This report is going to explain how the system of bidding precedent works by underlying its

advantages and disadvantages.

Introduction

The system of biding precedent is based on the doctrine of stare decisis, which means to

stand by the decisions taken already1. This allows the judicial system to be coherent,

predictable and accountable. At the same time, the system can cause rigidity to change

and develop erroneous law due to the system of reporting. Ratio decidendi represents

the biding part of a judgement and obiter dicta represents the non binding, but persuasive

part of the judgement. For a case to be biding it has to be “in point” and it must have come

from a higher court2 . There are exceptional situations where a precedent which is “in point”

does not bind on the instant case. These features are further explained underneath.

Stare decisis

For a precedent to be binding precedent it must be “in point” with the instant case and it

must have been decided by a court superior to the one examining the instant case3 .

The non binding precedents may be of persuasive nature to a judge, in other words they

do not place a categorical imposition on the judge to follow their decision.

On the condition that it has been decided by a higher court, a case is biding precedent on

a court if it is “in point” with the current case. For a case to be “in point” with another case

the material facts and the the legal issues have to be the same. To identify the legal issues

the ratio decidendi of the case has to be identified. The ratio decidendi is the binding part

1 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.16
2 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.17
3 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.17
of the judgement. The rest of the judgement is called obiter dictum and it is of persuasive

nature to the present case, it is not binding.

Hierarchy of courts

For civil cases4

Decisions made by a Sheriff Court are not binding. Decisions of the Supreme Court are

binding on all lower courts. The Supreme Court does not bind itself . The Court of Session

is divided into the Outer House and the Inner House. The court of Session is a “collegiate”

court and it can sit as a Court of Five or More Judges or a Court of the Whole House. The

Outer House is bound by decisions of the Inner House, the Court of Five of More Judges,

a Court of the Whole House. The Inner House is bound by decisions taken by a Court of

Five or More Judges, a Court of the Whole House. A Court of Five or more Judges is

bound by another court of the same or more Judges, a Court of the Whole House. All

divisions of the Court of Session are bound by decisions taken by the Supreme Court.

Criminal cases decisions5

The Supreme Court of the UK has authority in criminal cases only in relation to devolution

issues, but the High Court of the Justiciary is the highest court of appeal for criminal cases

in Scotland6 . Justices of the Peace Courts are bound by decisions taken by a Sheriff

Court, the High Court of Justiciary as a trial court, by the High Court of Justiciary as an

appeal court. Sheriff Courts are bound by decisions taken by the High Court of Justiciary

sitting as both a trial court and an appeal court and the Court of Criminal Appeal. The High

Court of Justiciary is bound by decisions of the Court of Criminal Appeal with the same

4 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.21
5 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.22
6Recently it has been concluded in a report requested by the First Minster that appeals for
decisions taken by the High Court of Justiciary on human rights matters can be heard by the UK
Supreme Court if the High Court of Justiciary permits it. Supreme Court Review <http://
www.scotland.gov.uk/About/supreme-court-review> accessed 22 November 2015
number or more Judges. The High Court of Justiciary can overrule a previous decision if it

sits with a larger number of judges than when it took the initial decision.

Ratio decidi

Ratio decidendi is the part of the judgement which expresses the principle of law which

was used by the court to decide the outcome of the case. Rationes can be interpreted

either in a narrow form or in a wider form of their scope. This is because they are the result

of the amalgamation of a series of cases and they have no verbal form7. The identification

of the ratio is dependant on a number of factors: the relevant facts, the right level of

generality, the deciding judgements and the width of application of the scope of a ratio in

subsequent cases8 . This allows the courts a certain level of freedom and it is beneficial if

the law has to cover new areas, but at the same time it creates uncertainty. The citizens

are not fully aware of where the law stands, while the courts can produce erroneous

precedent.

Obiter dicta

The obiter dicta is the part of the judgement that is not binding9. Its importance lies in the

help that it provides in understanding better the ratio. It can contain analysis and

hypothetical situations that are not directly relevant to the case, but which illustrate the

thinking of the judges who took the decision. Obiter dictum are considered persuasive for

future cases, but not biding.

Exceptional cases

7 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.8
8 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.9
9 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.15
There are situations where even if a case was decided by a higher court and it is “in point”

with the current case, it might be decided by the current court that it is not binding10 .The

Supreme Court does not bind itself. Exceptional situations where a precedent is not biding.

It has been overtaken by new legislation and any legislation has superior authority to

judicial precedent. When a case is per incuriam, the court who decided did not consider all

the relevant facts and points of law and it arrived at an erroneous decision, it is not

binding.Age and Defective Reporting can make a case to be non biding. Social changes

might render a case not binding. The court decides that the maxim cessante retione legis,

cessat ipsa lex applies.

Conclusion

The system of biding precedent has advantages and disadvantages, but it is an important

feature of the Scots law system. The ratio can be hard to identify, but it gives the judicial

system coherence and predictability. The obiter dicta is of persuasive nature to future

decisions and it provides an insight to the thinking behind the ratio. The hierarchy of the

courts allows for the accountability of the judges and it strengthens the coherence of the

law.

Bibliography:

R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013)

10 R M White and I D Willock, The Scottish Legal System (5th ed,Tottel Publishing 2013) par 12.20