he following notion will be explained in light of doctrine of judicial precedent focusing on

the types precedents and influence of obiter dictum/dicta in reaching decision, with
relevant case laws. The doctrine of Judicial Precedent is very strong in English law as it
ensures fairness and consistency and highlights the importance of case law in our legal
system. The doctrine is based upon ‘stare decisis’ which means standing by the
previous decisions. This means when a particular point of law is decided in a case, all
the future cases with the same material will be bound by that decision. According to Sir
Rupert the binding precedent is “all courts must consider the relevant case laws,
secondly lower courts must follow the decision of the court above them in hierarchy.
Lastly, judges of appellate courts are usually bound to follow their previous decision”.
For example the ratio of Carlill v Carbolic Smoke Ball Co is followed for the purpose of
unilateral offer situations. Generally two types of precedents can be found in the English
law i. authoritative or binding precedent and persuasive precedent. Authoritative
precedent binds the court in the same position and all the lower courts in the hierarchy,
eg- the Court of Appeal is bound to follow the House of Lords decision and if there is no
higher court’s decision for a case, the Court of Appeal will follow its previous decision as
confirmed in Young v Bristol Aeroplane Co Ltd. On the other hand persuasive precedent
doesn’t actually have to be followed and intended to pursue the court to make a
particular decision. However, sometimes it may influence judges to reach a decision as
it also includes case law from other countries judicial decisions and the Privy Council
(the senior appellate court for Commonwealth cases) decisions have been traditionally
merely persuasive on the English courts because of the status of the judges.
Nonetheless, the Privy Council decisions may be binding despite being persuasive as
seen in the case of Attorney General for Jersey v Holley. When a decision is made by
the judge, it contains a large amount of material. Generally, decisions contain material
about the facts of the case, arguments that were made in the court and the reasoning
behind the decision as it is necessary to be able to determine what a point of law is.
Ratio decidendi and obiter dicta are found in a decision given by the court. Ratio
decidendi is “the reason for deciding the case” i. the legal principle/decision of a case
which is authoritative (binding) and applied in the later cases with the same material fact
or are looking at the same point of law. While delivering a judgment, the judge will set
out their reasons for reaching a decision reasons that are essential for them to be able
to attain their decision corresponds to the ratio decidendi of the case. Sir Rupert Cross
defined ratio as “any rule expressly or impliedly treated by the judge as a necessary
step in reaching
his conclusion”. Thus, ratio is the part of the case which stands out to be binding on the
other cases with the same material fact and forms as an authoritative/binding
precedent. Obiter dictum/dicta directs to “other things said by the way” and usually
aren’t binding, they may be referred to as persuasive precedent’s form. It’s just other
legal arguments and statements found in the judgement but not forming a part of the
ratio decidendi. It can be any hypothetical situations considered by the court. Eg: in Hill
v Baxter, the judge talked about a situation (what would happen if a swarm of bees flew
into the car) that had nothing to do with the case. Such hypothetical discussion is not
binding and is obiter dicta. However it's interesting enough to note that very occasionally
the obiter dictum parts, being a persuasive precedent of the judgment, may be of the
most importance for the future development of case law. This happened in the very
recent case of Ivey v Genting Casinos Ltd (2017) where the obiter dicta of Lord Hughes
of Supreme Court was applied which apparently overruled the case R v Ghosh
changing the law for the purpose of dishonesty in criminal law. And this was confirmed
in the more recent case of R v Barton and Booth (2020) by the Court of Appeal
decision. Moreover, the case R v Howe & Bannister outlined obiter dicta was
followed by the House of Lords in R v Gotts (1992) which held duress as a defence was
not sufficient for the purpose of attempted murder. Hence, it is vividly evident that obiter
has been playing a vital role in recent days. Nonetheless, unanimously advocating the
decision signified that it got very persuasive and made the lower courts prone to follow.
The Supreme Court appears to have made a notable change to the criminal law in an
obiter statement in a civil case.

2. Where decisions were made ‘per

incuriam’ (in ignorance) of some rule
of law that was binding on the
court. Morelle v wakeling
Other situations may arise where the
court of appeal is allowed to depart
from a previous decision. On the issue
of
departing from their own previous
decisions Lord Denning was a big
advocate of the court of appeal being
allowed
to depart from their own earlier
decision much like the house of lords
but this debate was settle in the case of
Davis v Johnson when the case was
heard on appeal although the house of
lords overruled their own decision
they
took the opportunity criticize
Dennings approach and to make an
unequivocal and profound statement
which
emphasized that the court of appeal is
never to depart from a decision of the
house. The pattern for horizontal
precedent is the same in the criminal
division but there is more flexibility.
Horizontal precedent in the divisional
courts of the high court is they are
usually required to follow their prior
decisions. For the high court itself the
decisions are persuasive (can be used
as a strong argument) but the court is
not bound to follow them.
In the crown court the rules of
horizontal precedent can sometimes
create radical uncertainty as the
example laid
out in Hales: history of pleas of the
crown three different crown courts
gave different judgment on 3 cases
with the
same issue concerning marital rape.
The vertical dimension of precedent is
that all courts bound courts beneath
them in the hierarchy.
The supreme courts bound every court
but no court can be binding up it.
Vertical precedent in the court of
appeal is that the court is bound by the
House of Lords’ previous decisions as
well
as the supreme courts it is binding
upon all courts below it. On occasions
the court of appeal has tried to rid
themselves of this restraint. For
example in the case of Casselle & Co
Ltd where Lord Denning rejected a
prior
judgment made by the house of lords.
His tactic was frowned upon by the
House as lord Hailsham in his
statement
said: that all the courts lower down the
hierarchy are to follow the decisions
of the house including the court od
appeal and the court of appeal has no
right to advice lower tier first instant
courts to deviate for the decisions of
the house of lords.
The divisional courts of the high court
also bind the courts below them and
they themselves are bound by courts
above them. The same goes for the
crown courts.
It is safe to say that the system of
binding precedent as can be observed
by the activities of the courts, is not a
rule
set in stone it is flexible and is not as
perfect in practice as it is in theory.
But it is followed to a larger extent
than it
is deviated from.
Describe the vertical and horizontal dimensions of the doctrine of binding precedent and discuss how
vertical precedent operates in England and Wales.

The doctrine of binding judicial precedent is a distinctive feature of the English law which makes the
reasoning and decision made by judges in previous cases binding on later courts even if they do not
approve of the decision that the previous court has given, this is known as the rule of ‘stare decisis’.
Judicial precedent operates with reference to the court hierarchy i.e. the decisions of all superior courts
are binding on all courts below them as well as courts that are at the same level as them. Also referred
to as the concepts of vertical and horizontal precedent respectively. Horizontal precedent; the extent to
which a court is bound to follow its own previous decision. The view in English law up until the mid-19th
century was that the House of Lords (HL) are not to be bound by their previous judgments so horizontal
precedent was not a common concept at this point in time. Then in 1898 the case of London Street
Tramways was brought before the HL in which they decided that to promote the idea of certainty and
predictability in legal rules they decided that they would from now on be bound by their previous
decisions. This however proved to not be the greatest idea as it led to the exact opposite of the Lords
intention of certainty as it was too restraining and there was little to no room for flexibility which is the
most important factor in the development of common law. So as a way to remedy the situation the lords
released The Practice Statement in 1966; almost half a century later. The law lords realized that “…too
ridged adherences to precedent may lead to injustice in a particular case and also unduly restrict the
proper development of the common law…” they decided that they would now be able to depart from
decisions they saw to be unfit. A carefully worded press release was introduced alongside the Practice
Statement which specified the limitations that would be placed on the lords when and if they decided to
depart from a previous case, as a way to restrict themselves so they would use this use this new power
sensibly. It specified that court would only rarely depart from a decision; if the precedent was outdated;
to keep English law in step with other jurisdictions and would only very rarely would they depart from
the decisions in criminal cases because of the extra need for clarity because the civil liberties of citizens
are at stake. The Supreme Court which has only recently come into being (by the CRA 2005); an evolved
form of the HL. The application of the practice statement in the Supreme Court can be seen by the
judgment in the case Austin v Southwark the judgment in which stated that the supreme court did not
think it necessary to reissue the practice statement as a fresh statement of practice in the courts own
name. The practice statement is an example of how judges have made scope for flexibility, while
maintaining certainty and predictability in the common law. Judges have taken a prudent approach
when using the practice statement for example is a criminal case; Knuller v DPP, case that was related to
namely the corruption of public morals, the House of Lords decided not to overrule the precedent set by
the case of Shaw v DPP. In contrast the case of Andertone v Ryan was overruled. As lord bridge said: that
if an incorrect decision has been made and is the cause of distortion of the law then it must be changed
as soon as possible. The same pattern is followed for civil cases the judges do not simply depart from
decisions without a real and sufficient reason. In Murphy v Brentwood District council the HL departed
from their decision in the case of Anns v Merton London Borough the decision in this case was criticized
and was very inaccurate and so it was overruled. In the court of appeal the basic principle regarding
horizontal precedent is that it is bound by its own previous decisions. But exceptions to this rule exist
which were stated out in the case of Young v Bristol Aeroplane. Two of the situations stated in this case
relate to horizontal dimension of precedent. 1. Where two conflicting precedents exist the courts may
follow the one they prefer. National Westminster Bank v Powney Downloaded by Sher Khan
(khanssk1223@gmail.com) lOMoARcPSD|23978803 2. Where decisions were made ‘per incuriam’ (in
ignorance) of some rule of law that was binding on the court. Morelle v wakeling Other situations may
arise where the court of appeal is allowed to depart from a previous decision. On the issue of departing
from their own previous decisions Lord Denning was a big advocate of the court of appeal being allowed
to depart from their own earlier decision much like the house of lords but this debate was settle in the
case of Davis v Johnson when the case was heard on appeal although the house of lords overruled their
own decision they took the opportunity criticize Dennings approach and to make an unequivocal and
profound statement which emphasized that the court of appeal is never to depart from a decision of the
house. The pattern for horizontal precedent is the same in the criminal division but there is more
flexibility. Horizontal precedent in the divisional courts of the high court is they are usually required to
follow their prior decisions. For the high court itself the decisions are persuasive (can be used as a strong
argument) but the court is not bound to follow them. In the crown court the rules of horizontal
precedent can sometimes create radical uncertainty as the example laid out in Hales: history of pleas of
the crown three different crown courts gave different judgment on 3 cases with the same issue
concerning marital rape. The vertical dimension of precedent is that all courts bound courts beneath
them in the hierarchy. The supreme courts bound every court but no court can be binding up it. Vertical
precedent in the court of appeal is that the court is bound by the House of Lords’ previous decisions as
well as the supreme courts it is binding upon all courts below it. On occasions the court of appeal has
tried to rid themselves of this restraint. For example in the case of Casselle & Co Ltd where Lord Denning
rejected a prior judgment made by the house of lords. His tactic was frowned upon by the House as lord
Hailsham in his statement said: that all the courts lower down the hierarchy are to follow the decisions
of the house including the court od appeal and the court of appeal has no right to advice lower tier first
instant courts to deviate for the decisions of the house of lords. The divisional courts of the high court
also bind the courts below them and they themselves are bound by courts above them. The same goes
for the crown courts. It is safe to say that the system of binding precedent as can be observed by the
activities of the courts, is not a rule set in stone it is flexible and is not as perfect in practice as it is in
theory. But it is followed to a larger extent than it is deviated from.
Describe the terms obiter dicta and ratio decidendi and discuss why the ratio of a case is said to be vital
to the operation of the doctrine of binding precedent Case law is one of the primary sources of English
law, which is formed by documenting judges' decisions and adheres to the principle of precedent. Ratio
Decidendi and orbiter dicta are two crucial components of a court's decision. However, the ratio of the
case only has binding power, therefore it must be used or taken into consideration in later cases that are
pertinent. An in-depth discussion of binding precedent, ratio, and obiter dicta will be carried out in this
essay using essential case law and theoretical frameworks. In the English legal system, judges provide
judgments by following the previous decisions , and such judgments are documented in the form of case
law and are enforceable by lateral and lower courts. The doctrine of binding precedent involves an
application of the stare decisis principle which means ‘stand by the decisions which have already been
made’. Binding precedent is the process whereby judges follow cases which have been previously
decided, and of which the facts are very similar. Here , like cases are treated alike in order to ensure
predictability. This rule of precedent is adhered to in English common law to promote justice and
uniformity in judicial rulings. According to Willers v Joyce , “Decisions on the points of law by more
senior courts have to be accepted by more junior courts .Otherwise, the law becomes anarchic ,and it
loses coherence clarity and predictability” . Although all the words of judges are important, from a
particular discission only the Ratio Decidendi and the obiter dicta make up the legal precedent . Ratio
Decidendi is the most significant portion of the court's ruling and is necessary for the establishment of
binding precedent. The ratio, nevertheless, neither represents the case's real outcome nor its
circumstances. Instead, a lateral judge is bound by the grounds for making the decision. As Sir Rupert
Cross explained ,”The ratio decidendi of a case is any rule of law expressly or impliedly treated by the
judge as a necessary step in reaching his conclusion” . There is a chance that a given case will include
more than one ratio. If more than one ratio is contained in a court of appeals ruling, according to Lord
Denning MR, the lateral court is not required to follow them all. The lateral court has the option to
disregard any specific one. But this again a threat to the consistency of the binding precedent .As judges
will spent lengthy hours to consult the previous decisions without necessarily resulting in predictable
outcomes . One of the persuasive precedent is obiter dicta .The part of the decision , which is not
essential for reaching the decision but has persuasive authority is known as obiter dicta . It is sometimes
regarded as things said by the way . The obiter dicta sections of a decision might at times be quite
important for the future development of case law. It was determined in the obiter dicta of Ivey v.
Genting Casinos that decisions should no longer be made using the long-established criteria of
dishonesty, discovered in the case of R. v. Gosh. It is commonly anticipated that this modification to the
definition of dishonesty will have significant effects on how the common law develops. Moreover , a
leading precedent regarding the law of negligence was set in the orbiter dicta of Hedley Byrne Principle .
Sometimes an opinion given in HL may appear to be obiter at first glance, but upon closer inspection, it
turns out to be forming part of the ratio, as the case was in National Carriers v. Panalpina. However , this
is occur in rare situations.

In R v Parole Board Leggatt Lj had said that ,”the ratio is (or is regarded by the judge as being ) part of
the best or preferred justification for the conclusion reached .” Furthermore, if the reasoning behind
that conclusion had been any different, the result would have been significantly different, according to
his statement. However, according to Sir Rupert Cross, a case's ratio is what the judge of that specific
case meant it to be. The issue with this strategy is that judges may occasionally have stated the concept
too broadly or too narrowly for it to be applicable in certain cases. In modern time , the real ratio of a
precedent , however, is established by the judges of lateral courts .therefore it is not a easy task to
decide the ratio of a case . due to this objective approach , A judge in a lateral case may end up making a
comment obiter that had previously been considered to be ratio or vice- versa . Critics argue that this
objective procedure of deciding the ratio makes the binding precedent quite uncertain and inconsistent .
however, binding precedent makes the result predictable, it also saves the time of the courts and
litigants.. The case law of English common law strike a better mix between predictability and flexibility.
Furthermore , it can be argued that the doctrine of binding precedent is a self-imposed limitation by the
judiciary . Moreover, this idea has two dimensions. The first is vertical precedent, which states that
lower courts must abide by the decisions of higher courts, and the second is horizontal precedent, which
states that later courts must follow the judgements of previous courts of the same level. The
reinforcement of need for vertical precedent was found in the case of Davis v Johnson . Historically , The
house of Lords was not bound by its previous decisions .In the case of London Street Tram ways v
London county Council 1898 , HL decides that the doctrine of binding precedent will also be applicable in
the courts of HL so that same cases are not continually reargued . At present the supreme court of the
Uk has replaced the HL as the country’s highest court And , they will follow the same precedent practice
as HL . however , the strict adherence to precedence might lead to absurdity to combat that they issued
Practice statement in 1966 .The existence of binding precedent is stricter in CA than in Hl . The CA is
bound by its earlier decisions except for young v Bristol scenario . Besides practice statement the judges
have subsequently has left too rigid application of this doctrine by the process of overruling ,
distinguishing and reversing .By using distinguishing , in Merritt v Merritt court escaped the application
of Binding precedent of Balfour v Balfour . In one year difference , In R v Shivpuri 1986 , for the first
time ,the HL was invited to overturn its own decision of R v Howe 1987 . therefore , for courts its more
important to uphold the justice than to follow any precedent practice so, where it is necessary for the
betterment of the people courts have always tried to avoid rigid application of the doctrine . The action
of Binding precedent is stated to offer consistency, predictability, and assurance by following Ratio of
Case. By referring to a case's ratios, the legal laws are given an unified interpretation. The litigants' time
is saved. They can predict how a case will turn out since previous decisions are followed as result need
for litigation decreases . The methodical growth of common law depends on the practice of applying the
ratio of an earlier case to a lateral one. This process is adaptable because higher courts can swiftly
amend the law in reaction to societal developments, whereas parliament must go through drawnout
formalities in order to pass legislation.

2. Where decisions were made ‘per

incuriam’ (in ignorance) of some rule
of law that was binding on the
court. Morelle v wakeling
Other situations may arise where the
court of appeal is allowed to depart
from a previous decision. On the issue
of
departing from their own previous
decisions Lord Denning was a big
advocate of the court of appeal being
allowed
to depart from their own earlier
decision much like the house of lords
but this debate was settle in the case of
Davis v Johnson when the case was
heard on appeal although the house of
lords overruled their own decision
they
took the opportunity criticize
Dennings approach and to make an
unequivocal and profound statement
which
emphasized that the court of appeal is
never to depart from a decision of the
house. The pattern for horizontal
precedent is the same in the criminal
division but there is more flexibility.
Horizontal precedent in the divisional
courts of the high court is they are
usually required to follow their prior
decisions. For the high court itself the
decisions are persuasive (can be used
as a strong argument) but the court is
not bound to follow them.
In the crown court the rules of
horizontal precedent can sometimes
create radical uncertainty as the
example laid
out in Hales: history of pleas of the
crown three different crown courts
gave different judgment on 3 cases
with the
same issue concerning marital rape.
The vertical dimension of precedent is
that all courts bound courts beneath
them in the hierarchy.
The supreme courts bound every court
but no court can be binding up it.
Vertical precedent in the court of
appeal is that the court is bound by the
House of Lords’ previous decisions as
well
as the supreme courts it is binding
upon all courts below it. On occasions
the court of appeal has tried to rid
themselves of this restraint. For
example in the case of Casselle & Co
Ltd where Lord Denning rejected a
prior
judgment made by the house of lords.
His tactic was frowned upon by the
House as lord Hailsham in his
statement
said: that all the courts lower down the
hierarchy are to follow the decisions
of the house including the court od
appeal and the court of appeal has no
right to advice lower tier first instant
courts to deviate for the decisions of
the house of lords.
The divisional courts of the high court
also bind the courts below them and
they themselves are bound by courts
above them. The same goes for the
crown courts.
It is safe to say that the system of
binding precedent as can be observed
by the activities of the courts, is not a
rule
set in stone it is flexible and is not as
perfect in practice as it is in theory.
But it is followed to a larger extent
than it
is deviated from