BINDING PRECEDENT

Requirements of a Legal System:

 One of the requirements of a just legal system is that decisions of courts

are consistent – like cases are treated alike- so that litigants can, to some
extent , predict the likely outcome of cases

Concept of Stare decisis:

 In the common law system this principle is elevated to a formal system of
binding precedent which requires judges to follow the decisions of earlier
courts in certain circumstances. This is known as the principle of stare
rationibus decidendis; usually referred to as stare decisis. It translates
simply as ‘ let the decision stand’

Hierarchy:
 Hundreds of cases are decided each day, but it is only cases decided in the
higher courts, that is the High Court and above, which are binding on the
lower courts and must be followed in subsequent cases.

Law Reporting:
 In order for a case to be followed by later courts it must be written down
and published (reported). Historically only a small proportion of cases were
reported. This factor as a significant limitation in the system of precedent.
Today, this poses less of problem as there are full reports.

 The process of reporting is not the responsibility of the courts, but is left to
publishing companies, newspapers and journals – some still go
unreported.

 There are two main parts of a decision:

A) Ratio decidendi
B) Obiter dictum

Ratio decidendi:
It is the comination of the rule of law and the material facts to which it
applies.
What constitutes the precedent that must be followed in later cases is
the ratio decidendi_ the reason for deciding. There is not a single test
for identifying the ratio in a case. At its simplest ratio is the because
factor.
These statements are binding on the later judge.

Obiter dictum:
Anything else said in the case that does not relate to the material facts
of the case. This means ‘a thing said by the way’- plural is obiter dicta.
These statements are not binding on a later judge.

so how to determine what are the material facts?

Stare decisis will only be applicable if the ‘material facts’ are the same. If
the facts are ‘materially different’ then the court may distinguish the
case from the earlier one and so apply a different rule.

In Camplin (1978), the House of Lords held that a 15- year old boy who
killed a man by striking him with a chapatti pan after he was sexually
assaulted by him, could claim a defence of provocation to a charge of
murder.

It has generally been agreed that the ratio in Camplin was that in
deciding whether or not a person could claim the defence of
Provocation to a charge of murder, the court should consider the effect
of provocation on a reasonable person with the same general
characteristics as the defendant.

1) So if there was a later case and in that, the assailant used a kettle
that would not be a material difference and therefore the case would
be binding precedent.
2) What if the assailant was 30, would that be a material fact?

Looking at the ratio, it would appear that the age of the defendant
would be a material fact. The court may still be bound by the general
rule laid down in Camplin but might distinguish the outcome of the
facts.

It is not easy for courts to determine what the material facts of a case
may be and what may be relevant.

How does the system of Precedent operate in the court structure of

the ELS?

First question to always ask is, is the court bound its own decisions,
Does it bind the lower courts?
The answer to the second is obvious. Yes. Issue arises with
reference to the first.

Supreme Court (HOL)

The SC is the highest court in England and its decisions bind all lower
courts.

There has been a long debate as to whether the House should be

bound by its own previous decisions.

In London Tramways v LCC:

 The HOL decided that it was bound by its own previous decisions.

Stress for a general principle:

Lord Halsbury acknowledges that cases of individual hardship may
result from the HOL being bound by its own decisions. However,
the need for clear general principles overrides the hardship caused
in individual instances. He stated that justice is of little consequence
with the need for finality in litigation.

However,
 68 years later, the PS of 1966 issued by Lord Gardiner stresses
the need for flexible development of law:

1) While former decisions of the HOL would normally be binding, the

law lords would have the liberty “to depart from a decision when it
appear right to do so”

2) In considering this, the court will keep in mind “the dangers of

disturbing the basis on which contracts, settlement of property and
fiscal arrangements have been entered into and also the especial
need for certainty as to the criminal law”

It was stated that the law would be illegitimate if it simply asserted

the need for general rules, and ignored the fact that justice
required general rules to be changed.

However, it would also be illegitimate if it simply treated each case as

exceptional and failed to develop general principles.

If there is an implicit acknowledgement of judicial law making in the

PS, there is also an understanding that the power should used
sparingly, and that stablitity would ultimately be preferred to
creativity.
In fact the House has departed from a previous decision of its own no more than
fifteen or twenty times since the Practice Statement was issued, though the
"special need for certainty in the criminal law" seems at times to have been
forgotten.

Conway v Rimmer [1968] 1 All ER 874, HL

A former police officer suing for wrongful prosecution sought disclosure of

certain police files, and the Home Secretary claimed public interest immunity
for all such files. The House of Lords said the Home Secretary's certificate was
not conclusive of the matter: the court should examine the documents itself
and order disclosure if the public interest in the administration of justice
outweighed the public interest in confidentiality. The decision in Duncan v
Cammell Laird [1942] 1 All ER 587 should not be followed.

British Railways v Herrington [1972] 1 All ER 749, HL

The plaintiff, aged 6, was badly burnt on the electric rail after going through a
gap in the fence. The stationmaster knew the fence was in poor condition, and
knew children often trespassed, but took no steps to correct this.

The House of Lords declined to follow its own decision in Addie v Dumbreck
[1929] AC 358, in which it had held that an occupier of premises had no duty of
care to a trespasser and applied Lord Atkin's "neighbour" principle instead: the
occupier might not owe to the trespasser a duty to take reasonable care to see
that he would be reasonably safe, but did have a duty to treat him with
ordinary humanity.
R v Shivpuri [1986] 2 All ER 334, HL

A decision of the HOL one year earlier – Anderton v Ryan had received great
criticism. In R v Shivpuri the HOL changed its mind on whether it was possible to
to attempt to do the impossible.

D was arrested entering the country, carrying with him a package which he
believed contained either heroin or cannabis, but was in fact ground dried
cabbage and quite harmless. D was charged with attempting to import a
prohibited drug, and his appeal was dismissed by the Court of Appeal.

This is a rare example of the HOL overturning its own decisions simply because
it felt that the earlier decision was wrong. Usually the Lords look for wider policy
considerations.

R v Howe [1987] 1 All ER 771, HL

D took part with others in two separate murders, and on a third occasion the
intended victim escaped. D's claim to have acted under duress was left to the
jury on two of the three counts, but D was convicted on all three, and
appealed.

The House of Lords reviewed the authorities, and then exercised its power
under the Practice Statement to depart from its decision in Lynch v DPP for
Northern Ireland [1975] 1 All ER 913 and say that no participant (whether
principal or accessory) can claim duress in defence to a murder charge.

Murphy v Brentwood DC [1990] 2 All ER 908, Times 27/7/90, HL

The purchaser of a house which subsequently developed serious cracks sued

the local authority for its alleged negligence in approving building plans with
inadequate foundations. A seven-man House of Lords formally departed from
the decision in Anns v Merton BC [1977] 2 All ER 492 and said the Council
owed no duty of care to the purchaser.
 Reasons for departure:

Lord Mackay stated that the facts had not been considered in detail. Case may
have worked in theory but did not relate to real facts.

There could be no doubt, said Lord Keith, that to depart from that decision
would re-establish a degree of certainty in this field of law. He stated that the
case was ‘unsatisfactory’

Miliangos v George Frank

The HOL changed the rule laid down in the Havanna Railways case that all
damages in an English court had to be made in sterling. Lord Wilberforce
argued that because the law in the area was judge-made, it was legitimate to
change it provided that ‘on principle and in reason’ it appears correct to do so.
The sterling principle had clearly become outdated and it was essential to
change the law in order to enable the court to ‘keep up with commercial
needs’. Miliangos thus suggests factors that legitimize judicial law-making in
civil law.

But as indicated in the first part of the Practice Statement, the House will not
necessary depart from a previous decision that it considers wrong.

Jones v Secretary of State for Social Services [1972] 1 All ER 145, HL

The House's power to depart from one of its previous decisions (Re Dowling)
should only be sparingly exercised, said Lord Simon (one of the four), for the
advantage of finality should not be thrown away too readily.
 A difference of view on a matter of statutory construction would rarely by
itself provide a suitable occasion for departing from a previous decision, and
it had not been shown that the construction adopted in Dowling's case was
causing administrative difficulties or individual injustice.

Knuller v DPP [1972] 2 All ER 898, HL

The publisher of a gay contact magazine was charged with inter alia
conspiring to corrupt public morals. Affirming his conviction, Lord Reid said
he still believed the House's decision in Shaw v DPP [1961] 2 All ER 446 (that
such a crime existed) had been wrong, but it did not follow that it should
now be reconsidered.

The 1966 Practice Statement does not mean that whenever the House thinks
a previous decision is wrong it should reverse it, he said; in the general
interest of certainty in the law their Lordships should be sure there is some
very good reason for so acting.

Food Corp. of India v Antclizo

Lord Goff stated that the HOL’s will only depart from its previous decision if:
1) It felt free to depart from both the reasoning and decision of the earlier
case; and
2) Such a review would affect the resolution of the actual case before them
and not be of mere academic interest.

Hall v Simons (2000) Times 21/7/00, HL

In three conjoined appeals relating to alleged negligence by solicitors, a seven-
man House of Lords decided that the advocate's immunity from suit, confirmed in
Rondel v Worsley [1967] 3 All ER 993, should be abolished. Lord Hoffmann said
the earlier decision was not wrong in its time, but the world had been different
then and blanket immunity could not be justified today.
In A v Hoare (2008) their Lordships chose to overturn one of their decisions –
Stubbings v Webb. Reason was that the previous case had placed too much
weight on authorities external to the statute and so was simply wrongly
decided.

In Rv Kansal(2001), the House criticized R v Lambert but did not overrule it

Howe and Shivpuri tell us something important about the operation of precedent
within Criminal Law:

a) There has to be very compelling arguments for change,

b) The HOL will only overrule itself when it has fallen into serious error.
These narrow guidelines preserve the legitimacy of judicial law-making.

Austin v Mayor and Burgesses of London Borough of Southwark: overruled a

previous decision in Knowsley Trust v White. This case is important for two
things. First that the practice statement applies to the supreme court, and second
that the UK SC will be cautious about overturning an earlier decision on statutory
interpretation unless there are very strong reasons doing so.

THE COURT OF APPEAL

Two important qs:

To what extent is the COA bound to follow decisions of the HOL:

 Strictly speaking ALWAYS.

However, there have been campaigns in the COA to overcome the principle.
These campaigns have been led mainly by Lord Denning. It was only his
retirement that halted this conflict.
Per incuriam campaign:

Per incuriam means that a court failed to take into account all the relevant and
vital statutes or case authorities and that this had a major effect on the
decision.

Therefore Lord Denning stated that if a HOL decision had been made ‘per
incuriam’ it need not be followed.

Per incuriam does not simply mean that an earlier court got things wrong but
there was a significant oversight. Not only must there have been a failure to
take account of relevant authorities- the fault must have been such a major
defect that it seriously affected the reasoning in the case and would have
affected the outcome.

He applied this in Broome v Cassell to ignore a HOL case Rookes v Bernard.

Lord Denning persuaded the other members of the COA to reach a decision
contrary to the earlier case. He stated that Rookes was a decision made per
incuriam because it had failed to consider earlier HOL’s authorities.

But when Broome went on appeal to the Lords, it struck down Denning’s
reasoning, believing it to be a plain excuse to avoid the principles of stare
decisis.

Lord Hailsham stated:

I am driven to the conclusion that when the COA described the decision in
Rookes v Bernard as decided ‘per incuriam’ or ‘unworkable’ they really only
meant that they did not agree with it….. .. It is necessary for each lower tier,
including the COA, to accept loyally the decisions of the higher tiers”

The Lapsed rule campaign

 Basically this rule is based on the fact that the reason for the rule has
disappeared, should the precedent created by the HOL still be followed even
though the whole basis of this precedent has disappeared.

This was the question considered by Lord Denning in Schorsh Meier GmbH v
Hennin:

A Latin maxim described the rule thus:

Cessante ratione legis, cessat ipsa lex (with the reason for the rule ceasing, the
law itself no longer exists)

The COA was divided on this:

Lord Denning and foster J agreed that a 1961 decision of the HOL had run its
course (Havanna case). The case had stated that damages in English law are
only to be awarded in sterling.

Lord Justice Lawton however did not recognize that the COA had such power
and therefore should be bound to follow the HOL.

The case did not go on appeal to the HOL; however they had an opportunity to
comment on this rule in Milliangos v George Frank:

They disapproved of Lord Denning’s attempts to vary the notion of stare

decisis.

They did overrule their own previous case on the same grounds he had
proposed.

This one is forced to say that the campaigns failed. It is for the HOL to change
its mind, not for the COA to decide the issue for it.

To what extent is the COA is bound by its OWN previous decisions?

The basic rule is that it is bound.

Three exceptions were given in the leading case of Young v Bristol Aeroplane Co.
Ltd by Lord Greene:

1) The COA can choose between its own conflicting decisions :

The one chosen would render the other overruled; a general rule which
may have emerged is that the latest case would probably be followed in
preference to the earlier case.

Examples of which are:

a) There may be two or more cases being heard in the different court
rooms at strand, which may later prove contradictory
b) One court may find the previous case distinguishable from the facts of
the present one and therefore should not be followed whilst another
may not find it distinguishable and therefore binding (Starmark
Enterprises Ltd.)

An example of the use of this rule is National Westminster Bank v Powney

where the case was faced with two irreconcilable decisions both decided in
1948: Lamb v Rider and Lough v Donovan. The court followed Lamb v
Rider.

2) If its own previous decision has been overruled expressly or impliedly by the
HOL it need not be followed

3) The court is not bound by its own decisions found to have been made per
incuriam:

Often misleadingly considered to mean a case wrongly decided, in Morelle

v Wakeling Lord Evershed limited the use of the per incuriam rule to cases
where:
 There was ignorance of authority which would have been binding on
the court , and
  That ignorance led to faulty reasoning

Duke v Reliance Systems:

The COA has shown itself ready to use the per incuriam rule but with
reservations.

It has been applied in Rakhit v Carty and Peter Limb v Union Jack
Removals Ltd.

Another unsuccessful campaign led by Lord Denning:

After the House of Lords Practice Statement in 1966, Lord Denning conducted a
campaign to free the Court of Appeal from having to follow its own earlier
decisions. He argued in the case of Gallie v Lee [1969] 1 All ER 1062 that the Court
of Appeal need not be absolutely bound by its own prior decisions. He said that
this was a limitation self-imposed by the judiciary and that if the House of Lords
could free itself from this constraint there was no principled reason why the Court
of Appeal could not do the same thing. Lord Denning’s main concern was that if
the Court of Appeal had made an error in a case, the rule in Young v Bristol
Aeroplane would mean that the Court would be bound to continue to apply a bad
precedent unless and until an opportunity arose for the precedent to be
overruled in the House of Lords. He repeated this view in the case of Tiverton
Estates v Wearwell [1975] Ch 146, but was unable to persuade all of the Court of
Appeal judges to agree with him.

the position was finally settled in the case of Davis v Johnson

Davis v. Johnson:

The COA had to consider the case of a victim of domestic violence.

Ms Davis had unsuccessfully asked the court for an order to compel her abusive
partner to leave the flat that they had been sharing. To allow her appeal, the COA
would need to depart from its previous decisions where injunctions had not been
awarded in similar situation: B v B and Cantliff v Jenkins.

Lord Denning made a strong argument:

He agreed that normally, the COA was bound by its own decisions. However, he
criticized the consequences of such an argument.

a) It may be that an appeal is never made to HOL,

b) There is long delay before such an appeal is made; the example is the 60 year
period before the wrong decision in Carlisle and Cumberland Banking Co. Ltd v
Bragg was corrected in Gallie v Lee.

c) Or individual lacks the financial means to bring the appeal to HOL.

d) Moreover the delay would cause hardship to MS. Davis as she was a resident
in a battered women’s refuge in 'appallingly' overcrowded conditions.

An argument that the lower courts may be left in confusion as to which case they
would follow, was cured by Lord Denning stating that the later one will be
preferred as long as the latter case contains 'full consideration' of the earlier
case.

The court of Appeal was set up in 1873; it was the final appellate court as the
jurisdiction of the HOL was not established in 1875.

The court inherited the Jurisdiction of the COA in Chancery and the Exchequer
Chamber. As these courts were always considered to have the power to review
their own decisions, it would be fair to say that the new court had inherited this
Jurisdiction.
Lord Denning wanted to extend the powers similar to those that the HOL’s had
allotted to themselves through the PS 1966 to the COA. They stated as the
practice of precedent was laid out by the court itself, the court should have the
power to alter or amend it according to their own needs.

Lord Denning was well aware that in doing this he was failing to follow horizontal
precedent. He said however:

On principle, it seems to me that, while this court should regard itself as normally
bound by a previous decision of the court, nevertheless it should be at liberty to
depart from it if it is convinced that the previous decision was wrong. What is the
argument to the contrary? It is said that if an error has been made, this court has
no option but to continue the error and leave it to be corrected by the House of
Lords. The answer is this: the House of Lords may never have an opportunity to
correct the error; and thus it may be perpetuated indefinitely, perhaps forever.

These arguments ultimately failed.

The HOL rejected the argument that the CA could depart from its own decisions if
it considered itself to be in error, and affirmed the doctrine with which we are
familiar. The CA is bound by its own decisions exceptions laid down in Bristol
Aeroplane.

Viscount Dilhorne elaborated this argument, it had to be the case that the 1966
PS applied only to the HOL, and if it did not then any court could argue that it was
not bound by its own previous decisions. Denning’s arguments ignored ‘the
unique character of the HOL sitting judicially’

Lord Diplock and Lord Salmon elaborated this point by citing the concluding
words of the 1966 Statement: ‘This announcement is not intended to affect the
use of precedent elsewhere than in this House’.

CRIMINAL DIVISION OF THE COA

  The Criminal division is and has traditionally been more relaxed on stare
decisis, especially where an individual’s liberty is at stake.
 This seems strange as the HOL has often declined to change its view on
criminal matters to promote certainty.
 In R v Parole Board ex parte Wilson, the court applied the principle that,
where liberty is at stake and injustice might occur, stare decisis was not
applicable. (The CA found the case distinguishable in any case so the
comments on stare decisis were not strictly necessary.
 In R v Simpson – the COA affirmed this approach; there Lord Woolf stated
that the power to depart from the earlier decisions was not akin to the
power of the HOL under the PS 1966. He stressed the need for public
confidence in the criminal justice system.

Decisions of the HOL and the Judicial Committee of the Privy Council:

 Judicial Committee of the Privy Council was once the final court of appeal
for the British Empire, it now remains so for a diminishing number of
countries,
 The JCPC is not a part of our system and cannot create binding precedent
 Any decision of the JCPC is treated as highly persuasive

Q 1:Now what will the COA do if there is JCPC case which conflicts with an
EARLIER COA’s authority:

In the case of R v James and Karimi [2006] the Court of Appeal held that, in
exceptional circumstances, a Privy Council judgment can bind the English courts
and effectively overrule an earlier decision of the House of Lords. The case
concerned the interpretation of s.3 of the Homicide Act 1957. The question was
whether, when considering provocation as a defence to murder, the court should
take into account the particular characteristics of the defendant, for example if he
was a young person or had learning difficulties. In the case of R v Smith (Morgan
James) [2001] the House of Lords held that all of the characteristics of the
defendant should be taken into account by the jury when deciding whether loss
of self-control was enough to make a reasonable man do what the defendant did.
This decision was the subject of considerable criticism on the ground that it had
misinterpreted Parliament’s intention in s.3. In 2005 a similar case came to the
Privy Council in AG for Jersey v Holley [2005] UKPC 23. The appeal was against a
decision of Court of Appeal of Jersey that had applied Morgan Smith. A majority in
the Privy Council concluded that Morgan Smith had been wrongly decided thus
leading to a conflict between the Privy Council decision in AG for Jersey v Holley
and the House of Lords decision in R v Smith (Morgan James). In the case of James
and Karimi the Court of Appeal was faced with the two conflicting decisions. The
Court of Appeal held that it was inclined to follow Holley and not Morgan Smith.

However, a recent case casts a new light on this established principle. In the case
of Willers v Joyce [2016] UKSC 44, the Supreme Court gave an important
clarification on the precedent value of decisions of the Privy Council. In this case
the judge at first instance had had to consider a House of Lords case which would
lead her to strike out the claim in question, and also a more recent Privy Council
case which would lead to a different legal result.

The Supreme Court made it clear in its judgment that the courts should normally
follow the usual rules of precedent, and therefore not follow a decision of the
Privy Council if it conflicted with the decision of a court that did set precedents
(e.g. the Supreme Court). However, as the Privy Council is in practice often made
up of Justices of the Supreme Court, it is open to them to say that decisions of
other courts (e.g. the Court of Appeal or the Supreme Court) are wrong, and that
the Privy Council decision should be treated as representing the law of England
and Wales.

If the Privy Council has made this statement that a decision is to be treated as
being the law, then its decision would be binding as a matter of precedent.
The Supreme Court sat in a panel of nine Justices, rather than the more usual five,
recognising that this was an important case. Although the judgment to a large
extent set out the accepted rules of precedent, the decision that the Privy Council
could in some circumstances overrule the Supreme Court or Court of Appeal was
seen as controversial by some.

Decisions of the ECJ

The ECJ is the only court that can make authoritative rulings on the meaning
and interpretation of European legislation. Therefore all courts in the EU
should follow the ECJ’s decisions.

The ECJ only decides what the law means and does not decide the cases
themselves.

Application of that interpretation to facts is the province of the national

courts

The ECJ itself has frequently stated that EC Law takes supremacy over national
laws.

Sharp v Caledonia Group Services Ltd:

In so far as there is a conflict between the later ECJ decision and earlier UK
decision, the ECJ decision should be followed (to this extent stare decisis is
disapplied

Decisions of the ECHR:

Decisions of the ECHR must simply be taken into account by our judges , but
they do not create precedent.
On the question of which decision should be followed if a HOL decision is
incompatible with an ECtHR decision, see the case of Price v Leeds City Council.
the case concerned rights of gypsies to occupy land and whether attempts to
remove them breached their rights under the ECHR , art 8 (respect for private and
family life). The problem was that an earlier HOL decision (Harrow LBC v Qazi)
was incompatible with a subsequent decision of ECtHR (Connors v UK). The COA
decided to follow HOL decision in Harrow. Lord Phillips MR provided that:

“It seems to us that in these circumstances, the only permissible course is to follow
the decision of the House of Lords but, to give permission, if sought and not
successfully opposed, to appeal to the House of Lords, thereby and to that extent
taking the decision in Connors into account.”

Trial Courts:

All courts lower than the COA such as the HC, Crown court, magistrates
court, county court and the various tribunals are bound by stare decisis in
the normal way.

Courts like the Crown court are trial courts, dealing mostly with facts and
evidence rather than questions of high legal analysis. They do not therefore
create precedent.

Divisional courts of the High Court

Since the divisional courts have mostly appellate jurisdiction, the rules of
precedent are similar to the COA. Vertical precedent: divisional courts of high
court are bound by decisions of the SC/HOL and the COA. Decisions of Divisional
courts are binding on inferior courts. Horizontal precedent: the DC are normally
bound by their previous decisions subject to the exceptions in Young v Bristol
Aeroplane.

Now remember that when the DC are not exercising appellate powers, they are in
the same position as the high court.

The High Court

The high court is bound by the SC/HOL, the COA and Divisional courts. Its
decisions bind all inferior courts and tribunals. However the High court does not
regard itself as bound by its own previous decisions, although they are regarded
as highly persuasive.

Crown court

The Crown Court is bound by decisions of the superior courts and its own
decisions are binding on the courts below it in the hierarchy. Decisions on points
of law are persuasive but not binding precedents, although inconsistent decisions
can lead to uncertainty. An obvious example is the issue of marital rape. Before
the case of R v R was finally decided in the House of Lords in 1991, cases dealing
with marital rape had come before the Crown Court sitting in different parts of
England. The courts had reached different decisions. The question for the courts
was whether a man could be criminally liable for raping his wife. The law until this
point was based on an historic principle set out in Hale’s History of the pleas of
the Crown (1736) that on marriage a woman gave irrevocable consent to sexual
intercourse with her husband. In the case of R v R [1991] the Crown Court sitting
in Leicester accepted that consent to intercourse was implied from the fact of
marriage. Some three months later in the case of R v C [1991] the Crown Court
sitting in Sheffield declined to follow that decision and held that a husband could
be guilty of raping his wife. In a third case in the same year R v J [1991] the Crown
Court sitting in Teesside refused to follow R v C.

Magistrates’ Courts and the County Courts

These courts are bound by decisions of the High Court, the COA, and the HOL.

Magistrates and County Courts are not bound by their own decisions; neither do
they bind any other court. (Although it is expected they exercise consistent
decision making).

Do Judges Make Law?

Until relatively recently the traditional interpretation of the judicial function was
that judges do not make law. This understanding of the judicial role was founded
on a fiction that ‘cases do not make law, but are the best evidence of what the
law is’. Judges therefore in their decisions were merely declaring what the law
was.

Constitutionally, it is for the legislature to make law and for the judiciary to give
effect to that law. The judiciary is not elected representatives of the people and
therefore lack legitimacy for law-making in a democratic society governed by the
rule of law (what is often referred to as a ‘democratic deficit’). This strict
approach to the role of the judiciary was expounded by William Blackstone and is
known as the ‘declaratory theory’ – that the role of the judge is to declare what
the law is, and not to make it. An example of this approach is given by Lord
Simonds in the case of Midland Silicone Ltd v Scruttons Ltd [1962] where he said:
Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to
ignore our first duty which is to administer justice according to law, the law which
is established for us by an Act of Parliament or the binding authority of precedent.

The following quotes from senior judges in the 1940s and 1950s sum up the
traditional to judicial law-making:

“The function of the legislature is to make the law, the function of the
administration is to administer the law and the function of the judiciary is to
interpret and enforce the law. The judiciary is not concerned with policy. It is not
for the judiciary to decide what is in the public interest. These are the tasks of the
legislature, which is put there for the purpose, and it is not right that it should
shirk its responsibilities” (Lord Greene, 1944)

By the nineteenth century, legal thinkers such as Austin and Bentham had written
about the concept of ‘judge-made law’. But it was not until the late twentieth
century that judges themselves fully admitted their role in judicial law-making,

A key moment came with the publication by a law lord, Lord Reid, of an article in
1972 called ‘the Judge as Lawmaker’ which included the following statement:

“There was a time when it was thought almost indecent to suggest the judges
make law-they only declare it. Those with the taste for fairy tales seem to have
thought that in some Aladdin’s Cave there is hidden the common law in all its
splendor and that on a judge’s appointment there descends on him knowledge of
the magic words ‘Open Sesame’ .. We do not believe in fairy tales any more”
(Lord Reid, 1972)
In the case of National Westminster Bank v Spectrum Plus [2005], Lord Nicholls
said:
“The common law is judge-made law. For centuries judges have been charged with the
responsibility of keeping this law abreast of current social conditions and expectations.
That is still the position. Continuing but limited development of the common law in this
fashion is an integral part of the constitutional function of the judiciary. Had the
judges not discharged this responsibility, the common law would be the same now as it
was in the reign of King Henry II…”

A recent quote from Lord Dyson also shows that Judges are do take part in law making
procedure.

Whilst most judges see themselves constrained by binding precedent, there is a scope
within the rules for development of common law principles, for correction of errors and
for the making of new law-albeit in a measured and incremental way (Etherton 2010,
Dyson2014). The UKSC however adopts a cautious approach to the making of
new law. The SC does not have the democratic legitimacy to introduce major changes to
law and it is mindful of its constitutional position and relationship with legislature.

The loopholes in the common law that enable judges to make law include:

Distinguishing precedents

The judge or lawyer may show a significant difference in the material facts or the
legal reasoning employed in the two, such that the court does not feel obliged to
follow the previous case.

Rylands v Fletcher (1866) LR 1 Ex Ch 265, Ex Ch; (1868) LR 3 HL 330, HL

Water escaped from the defendants' reservoir, through some old mine shafts
that had not been adequately sealed, and flooded the plaintiff's working
mines. Blackburn J said the true rule of law was that the person who for his
own purposes brings on his land and collects and keeps there anything likely
to do mischief if it escapes, must keep it at his peril, and if he does not do so
he is prima facie answerable for all the damage which is the natural
 consequence of the escape. Upholding this judgment in the House of Lords,
Lord Cairns LC said the defendants might lawfully have used their land for any
purpose for which it might in the ordinary course of the enjoyment of land be
used, and if in the natural use of the land there had been any accumulation of
water, which by the operation of the laws of nature had passed off into the
land occupied by the plaintiff, the plaintiff could not have complained. On the
other hand, if the defendants not stopping at the natural use of their land had
desired to use it for any non-natural purpose, and if in consequence of their
doing so the water came to escape and pass off into the plaintiff's

land, then that which the defendants were doing they were doing at their own
peril.

Green v Chelsea Waterworks (1894) 70 LT 547, CA

A water main burst and flooded the plaintiff's premises. In the Court of Appeal,
finding for the defendant, Lindley LJ said the rule in Rylands v Fletcher was not
to be extended beyond the legitimate principle on which the House of Lords
decided the case. If it were extended as far as strict logic might require, it
would be a very oppressive decision. The company having been authorised by
Act of Parliament to lay the mains, and having a statutory duty to maintain a
water supply, were not liable.

Rickards v Lothian [1913] AC 263, PC (Australia)

A sink in D's upper flat had been blocked and water turned on by an intruder,
causing damage in P's flat below. Lord Moulton, giving their Lordships'
judgment, said a defendant is not liable under the rule in Rylands v Fletcher for
 damage caused by the wrongful acts of third persons. He also took up Lord
Cairns' emphasis on non-natural use, and said it is not every use to which land
is put that brings into play the rule in Rylands v Fletcher. It must be some
special use bringing with it increased danger to others, and must not merely
be the ordinary use of the land or such a use as is proper for the general
benefit of the community.

Read v Lyons [1946] 2 All ER 471, HL

The plaintiff was injured by an explosion at the defendants' munitions works.

In the House of Lords, Lord Simon LC said the strict liability recognized by the
House to exist in Rylands v Fletcher is conditioned by two elements: the
condition of escape from the land of something liable to do mischief if it
escapes, and the condition of non-natural use of the land. In this case there
had been no escape - the plaintiff was injured on the defendants' premises - so
the claim must fail. Lord Simon and Lord Macmillan both expressed doubts as
to whether making munitions in time of war is a non-natural use of land
adopted by the occupier for his own purposes. Lord Simon emphasized the
national interest, while Lord Macmillan thought more generally that in an
industrial community it was a probably not a non-natural use of land to build a
factory and manufacture explosives, though in a populated urban area it might
be different. It was unnecessary, said Lord Simon, to consider whether the rule
in Rylands v Fletcher applies where the claim is for damages for personal injury
as distinguished from damage to property. Lord Macmillan, on the other hand,
was sure that the doctrine of Rylands v Fletcher had nothing to do with
personal injuries.

Perry v Kendricks Transport [1956] 1 All ER 154, CA

Children playing around an old bus caused an explosion, in which some of

them were injured. Parker LJ disagreed with the dicta above and said personal
injuries were covered by the rule in Rylands v Fletcher, but found for the
 defendant nevertheless. Like Lindley LJ, he saw no need to confine the
exception of "acts of strangers" to acts which proceed from the deliberate act
of the stranger; the relevance of the exception, he said, is that the stranger is a
person over whose acts the occupier of the land has no control.

British Celanese v Hunt [1969] 2 All ER 1252, CA

Metal foil strips stored outside an electrical components factory on an

industrial estate were blown by the wind and caused damage to an electricity
substation. The Court of Appeal said the storage of metal strips was not a non-
natural use of the land, and the plaintiff's claim must therefore fail.

Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, Taylor J

During a siege, the police caused damage to a building by firing a CS gas

canister. Taylor J ruled this was a matter of trespass rather than a case for the
rule in Rylands v Fletcher, but added obiter that the rule probably applied to
escape from a vehicle as well as to escape from land: I can see no difference in
principle, he said, between allowing a man-eating tiger to escape from your
land onto that of another and allowing it to escape from the back of your
wagon parked on the highway.

Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53, Times 10/12/93,
HL

Chemicals spilled from drums at a tannery on a small industrial estate seeped

slowly through the ground and contaminated water supplies some years later.
 The water board sued in negligence and nuisance and under the rule in
Rylands v Fletcher. Kennedy J dismissed the claim, finding as a matter of fact
that the pollution had not been reasonably foreseeable at the time of the
operations in question, and holding that the operations of the tannery were a
natural use of the land. The Court of Appeal reversed this decision, but the
House of Lords restored the judgment and found for the defendants, on the
grounds that the relevant damage was not foreseeable. Lord Goff said that
having regard to the steps which the House had already taken to contain the
scope of liability under the rule in Rylands v Fletcher it appeared to be
appropriate now to take the view that foreseeability of damage of the relevant
type should be regarded as a pre-requisite of liability in damages under the
rule. It was not necessary for the purposes of the present case, he added, to
attempt any redefinition of the concept of natural or ordinary use, but he
doubted the correctness of the dicta in Read v Lyons and was satisfied that the
storage of chemicals in substantial quantities and their use in the manner
employed on the defendants' premises could not possibly be within the
natural user exception to the rule.

R v Pleydell (Michael Aaron) [2005] which distinguished another Court of Apeal

judgment(R v Woodward (Terence) [1995], both cases concerned causing death
by dangerous driving.

In Woodward, The fact that the driver had been seen with a glass of alcohol in his
hands just before driving was held not to be admissible as proof that he had been
over the limit whilst driving because there was no evidence of quantity consumed
or effect (he had been inquired in the crash and no samples had been taken). But
this was distinguished in Pleydell where there was no evidence that the driver
consumed cocaine before driving.
In Pacitti Jones (A firm) v O’Brien [2005] for instance, The Employment Appeal
Tribunal distinguished a House of Lords’ decision (Dodds v Walker [1981]) when
they held that the definition of a ‘month’ was different under an employment law
statute than under a landlord and tenant statute.

What the judge cannot do is to ignore a binding precedent or say that a decision
of a higher court was given per incuriam (without due care) and need not be
followed.

Very rarely, a judge may decline to follow a binding precedent if the point of law
has been taken on appeal to the House of Lords and their Lordships have not yet
ruled. In such a situation he normally adjourns the case or makes a decision that
will leave the matter open.

Reversing:

Overturning on appeal of the higher court below it, substituting it with its own
decision:

R v Kingston:

The HOL overturned decision of COA, it was held involuntary intoxication not a
defense unless prevents mensrea from forming.
Novel points

Further flexibility is provided by cases which raise novel points of law never
previously decided: where there is no precedent, or where there are precedents
pointing opposite ways, the judge has the opportunity of creating a new rule. In
so doing he does not simply toss a coin or impose his own personal opinion: he
may instead reason by analogy following a step-by-step process, or he may look
for the broad principles that seem to be illustrated in the decided cases.

In McLoughlin v O'Brian, for example, Lord Scarman and Lord Wilberforce came to
the same conclusion by different lines of reasoning.

McLoughlin v O'Brien [1982] 2 All ER 298, HL

A mother P saw members of her family in hospital about an hour after a fatal
road accident - one daughter was dead and her husband and two other
children were seriously injured - and she suffered psychiatric injury for which
she sued the other driver. Lord Wilberforce reviewed the history of
"psychiatric injury" cases and their step-by-step development of the law, and
proposed an extension from a victim at the scene to one who (like P) came
upon the "immediate aftermath" of the accident, subject to other criteria
which P satisfied. Lord Scarman took a different approach, and said there was
a general legal principle that tortfeasors were liable for the foreseeable
consequences of their acts: it was foreseeable that P would suffer
psychological injury in these circumstances, and that was enough.

There are a number of other cases in which the judge or judges had no clear
precedents to follow, and in which a decision either way would have created a
new precedent.

Gillick v West Norfolk &Wisbech Health Authority [1985] 3 All ER 402, HL

 A mother of five daughters sought a declaration that a doctor would be acting
unlawfully if he gave contraceptive treatment for any of her daughters without
the mother's consent. The House of Lords said a child under 16 who has
sufficient intelligence to understand fully the implications of the proposed
treatment (a "Gillick-competent" child) can give her own consent to medical
treatment. The fact that her parents have not consented, or even that they
have expressly refused the treatment, is then irrelevant. Prior to this decision
the law on this

point was unclear, but the Lords' decision made new law to fill the gap.

Airedale HA v Bland [1993] 1 All ER 821, HL

A young man seriously injured in the Hillsborough disaster was being kept alive
only by extensive medical care and had no chance of recovery; his doctors
(with the support of his family) sought a declaration that it would be lawful for
them to discontinue treatment so that he might die peacefully. The precedents
were uncertain - the ability to sustain life artificially was relatively recent - and
the House of Lords could have decided either way. In fact they drew a
distinction between active euthanasia (which is unlawful) and the withdrawal
of treatment (which may be lawful if the treatment is no longer in the patient's
best interests) and granted the declaration sought.

Re A

Here the COA had to decide whether it was lawful for surgeons to perform a
surgery which would save only one of conjoined twins. As there was no law on
the topic, the court balanced the interests of the two children and looked
beyond the law. In the end they allowed the surgery.
Marks & Spencer v One In A Million [1998] 4 All ER 476, CA

DD registered a number of Web addresses including (for example)

marksandspencer.com, virgin.org, and spice-girls.net, and then offered to sell
these addresses at high prices to the companies concerned. PP claimed the
addresses were theirs by right and should be handed over at only a nominal
price. Because the Web was still relatively new the Deputy High Court Judge
(Sumption QC) had no direct precedents to follow, but ordered DD to transfer
the addresses to PP. Since DD could have no legitimate use for other
companies' registered trade names, they should not have registered those
addresses in the first place. [His decision was subsequently affirmed on
appeal.]

Overruling

Another way in which precedent can be avoided is by overruling. However

technically, this is not an exception for a court which has the power to
overrule a decision will also usually not be bound by the chains of
precedent in the first place (e.g. HoL isn’t bound by anyone, the CoA isn’t
bound by the lower courts and can overrule its previous decision in
several situations). Nevertheless, the courts are extremely cautious when it
comes to overruling previous cases as it greatly affects the stability of the
system.
 Some of the causes considered to be legitimate to overrule include:

Social Changes

Sometimes the precedents are clear but not in line with modern values and
therefore judges may depart from precedent.

R v R:

Rape within marriage was recognized for the first time and the husband was
no longer immune from being prosecuted.

Fitzpatrick v Sterling House Association:

The HOL held that the term ‘family’ in the Rent Act 1977 should extend to
same sex partners. The court completed the change in this area of law in the
case of Ghaidan v Mendoza, where it was held that the provision of the Act
which permitted unmarried heterosexual couples to inherit statutory
tenancies should be interpreted to include same sex partners.
 White v White:

(Case concerning division of divorce assets)

HOL:

The court should begin with the presumption that the husband and wife were
entitled to equal shares, rather than looking to provide for the ‘reasonable
needs’ of the nonearning partner as it previously had done.

Multiple and inconclusive Rationes

Even crystal clear judgments’ may have more than one ratio and in some cases
it is very difficult to find the ratio.

For example the judge may say that I decide the case in favour of A however
the reason I give for it is this and also there is another unconnected reason
which I decide in A’s favor.

This occurred in the CA case of:

 Turner v London Transport Executive

The traditional answer is that both statements are ratio. However, later judges
do not follow a consistent line; some may relegate the ratio to be an obiter
statement.

This technique enables the later judges in lower courts to re-assess the ratio of
an earlier case:

Great Peace Shipping , the Court of Appeal re-assessed the words of Lord Atkin in
the famous HOL’s case Bell v Lever Bros and concluded that Lord Atkin had
proposed two rationes, the first of which was based on very weak authority and
so could be ignored in favour of the second ratio.

Sometimes the judges may agree on the result but may give many different
reasons for that:

Chaplin v Boys

Esso v Commissioners of Customs and Excise

Esso had established a campaign whereby their garages were giving away free
‘World Cup’ coins (token bearing the faces of English 1970 squad players) given
to every motorist buying over four gallons of petrol. The Revenue argued these
coins should have purchase tax charged on them because they were ‘produced in
quantity for general sale.’ The HOL’s held that Esso was not liable to purchase tax
on the coins. But when one reads the judgments one finds that:

a) The Law Lords held that there was no intent to create legal relation as
regards the coins, they were gifts (see Viscount Dilhorne and Lord Russell)
b) The Law Lords held that the advertisement on the garage forecourts was an
offer which the customer accepted when he bought the petrol. However,
the coins themselves were ancillary to the main contract and were
transferred only when the motorist bought the petrol. Therefore, the coins
themselves were not produced for sale (Lord Simon and Lord Wilberforce).

c) Lord Fraser dissented, finding that there was intent to form a contract and
that the coins were part of that contract.

Choosing between ratio and obiter

Donoghue v Stevenson:

 Mrs Donoghue and a friend went into a café, the friend ordered ginger beer
and ice cream. When her friend poured beer over the ice cream, a
decomposed snail fell out of the bottle. The bottle was dark opaque so that
the contents could not be detected.
Due to this, Ms Donoghue suffered gastro-enteritis and nervous shock. Her
cause of action was negligence and she was claiming damages for her loss
against the manufacturer. (Under contract law, she could not bring a claim
against the café owner because she had no contract with him, nor had he
been negligent)

The HOL’s upheld her claim, Lord Atkin said:

That a manufacturer of products will be liable for want of reasonable care if
he sells them in a form which shows they are meant to reach the ultimate
consumer in the same form as when they were manufactured (with no
reasonable possibility of intermediate examination) and if he knows that
the absence of reasonable care will cause injury)

Grant v Australian Knitting Mills

Grant purchased two underpants from Australia. He contracted sever

dermatitis owing to excess of sulphites in the garments which should have
been removed by the manufacturing process. Due to which he was ill for a
year.

He sued the retailer for breach of contract and brought a negligence action
against Australian Knitting Mills.

Grant won the claim under breach of contract and also the claim for
negligence, following the principles laid down in Donoghue v Stevenson.

‘Exploding underpants’ and dead snails are not the same thing.
The Privy Council stated that Donoghue v Stevenson could be applied only
where the defect is hidden and unknown to the consumer; but that in
Grant the chemical in the underpants represented a latent defect
equivalent to the snail in the opaque bottle.

Obiter Statements:

In Donoghue, Lord Atkin made a number of observations about liability for

negligent acts. One observation was that one owed a duty of care not to
injure ones ‘neighbour’ – a person so closely affected by ones acts that one
must take reasonable care not to injure them. This is an obiter statement
because it does not directly relate to the facts.
 A later court may anyway decide what was said by a judge in the prior case
was unnecessary to the decision and therefore was not part of the decision.
This ‘reassessment’ is one of the devices used to overcome the binding
element of the precedent.

A judge can decline to follow anything that is not the ratio.

One man’s obiter may be the next man’s ratio to a case:

Lord Atkin’s ‘neighbour principle’ was not an irrelevant statement; rather it

was used by later judges to form the basis upon which the law of
negligence was to develop. From a case about dead snails the ‘neighbor
principle’ has been extended to consumer items, industrial accidents, road
accidents, misstatements, and many other areas.

Boundaries of Judicial Law making:

McLoughlin v O’Brien:

This case raised question regarding the relationship of the judiciary and the
legislature.

Lord Scarman argued that the judge had a jurisdiction over common law that
‘knows no gaps’.

In creating new law, the judicial reasoning begins from ‘a baseline of existing
principle’. The judge works towards a solution that can be seen as an extension of
principle by process of analogy.
For Lord Scarman, this is the ‘distinguishing feature of the common law’: the
judicial creation of new law, as the justice of the case demands.

This process may involve policy considerations; the judge can legitimately involve
himself in the process, provided the primary outcome is the formation of new
legal principles.

Where the formation of principles involves too great an intrusion into the field of
policy, the judge must defer to Parliament:

“… by concentrating on principle the judges can keep the common law alive,
flexible and consistent, and can keep the legal system clear of policy problems
which neither they nor the forensic process which it is their duty to operate, are
equipped to resolve. If principle leads to results which are thought to be socially
unacceptable, Parliament can legislate to draw a line or map out a new path”

This argument demarcates the role of judges and that of Parliament. Judicial
interpretation keeps the common law flexible and responsive to change, and
defers to Parliament on those issues with which the courts are not well equipped
to deal.
Where the dividing line falls between matters of principle or policy is not so
crystal clear, we can refer to another aspect of Lord Scarman’s argument:

“The real risk to the common law is not its movement to cover new situations and
new knowledge but lest it should stand still, halted by a conservative judicial
approach. If that should happen, and since the 1966 Practice Direction of House it
has become less likely, there would be danger of the law becoming irrelevant to
the consideration, and inept in its treatment, of modern social problems. Justice
would be defeated. The common law has, however, avoided this catastrophe by
the flexibility given it by generation of judges”

This appears to describe the common law judge as the guardian of the conscience
of the common law. The judge is charged with the development of the law in such
a way that its principles remain coherent as it develops and adapts itself to
changing social conditions. Thus the flexibility of the common law is an element of
what makes it just.

However, it is important to note that flexibility is inseparable from the ‘risk’ of

‘uncertainty in the law’.

Lord Scarman argues that justice can demand a degree or loss in certainty of law,
however the law has to respond to advances in medicine, technology etc.

Following cases illustrate the role, legitimacy and concerns of judicial law-
making:
One of the best examples of judicial creativity:

Regina v R

The HOL’s determined that a husband could be held guilty of raping his wife. This
involved a particularly bold interpretation of the Sexual Offences (Amendment)
Act 1976 which would otherwise seem to perpetuate the husband’s exemption to
a charge of rape.

Lord Lane asserted that a literal interpretation would not solve the problem and a
‘radical’ solution would be necessary. He agreed that such powers go beyond the
bounds of judge-made law and trespass on the province of Parliament. To change
a rule of such long standing, despite its emasculation by later decisions, is a task
for the legislature and not the courts. There are social considerations to be taken
into account, privacy of marriage to be preserved and questions of potential
reconciliation to be weighed which make it an inappropriate area for judicial
intervention.

S v H.M. Advocate would appear to be on Lord Lane’s side.

The conclusion of the argument is compelling:

It seems to us that where the common law rule no longer even remotely
represents what is the true position of a wife in present day society, the duty of
the court is to take steps to alter the rule if it can legitimately do so in the light of
any relevant Parliamentary enactment”
R v Clegg:

The defendant was a soldier on patrol in Northern Ireland. He was convicted of

the murder of the passenger and attempted murder of the driver of a stolen car.
He said he had fired in self defence. The Court of Appeal had rejected his appeal
saying that on the facts it had been a grossly excessive and disproportionate use
of force. The House was asked: ‘whether a soldier on duty, who kills a person with
the requisite intention for murder, but who would be entitled to rely on self-
defence but for the use of excessive force, is guilty of murder or manslaughter.’ 
Held: The use of grossly excessive force in self defence can be no justification for
murder, even when the act was committed by a soldier on duty. The alternative of
manslaughter was not available in such a case. 

This case represents the circumstances in which a judge will refuse to legislate. In
this case the HOL refused to alter the law in relation to the reduction of a charge
of murder to one of manslaughter. Stating that it was a matter that required
legislation by Parliament, Lord Simon acknowledged in this case that judges do
make law but added that they are not to do so where the case raises policy
concerns. Lord Lloyd argued that unlike R v R the issue raised by this case was one
that needed Parliamentary legislation.

(History showed that parliament had avoided addressing the issue)

Curry v DPP

The case concerned the concept of doli incapax, or the presumption that a child
between 10 and 14 was incapable of committing a crime. The HOL refused to
abolish the rule, arguing that it was for Parliament to legislate on the matter.
A number of Acts showed that it was still necessary for the prosecution to show
that the child knew what s/he was doing was ‘seriously wrong’. Although this
policy had met with objections and criticism, this was not enough to justify
judicial legislation.

Again this begs the question of where the line between judicial intervention and
Parliament lies.

Lord Lowry draws support from R v Kearley:

(1)If the solution is doubtful, the judges should beware of imposing their own
remedy. (2)Caution should prevail if Parliament has rejected opportunities of
clearing up a known difficulty or has legislated, while leaving the difficulty
untouched. (3)Disputed matters of social policy are less suitable areas for judicial
intervention than purely legal problems.(4) Fundamental legal doctrines should
not be lightly set aside (5) Judges should not make a change unless they can
achieve finality and certainty.

The grounding idea appears to be deference to Parliament when the ‘solution is

doubtful’ or Parliament has already considered the issue and refused to legislate.
There is also a presumption against changing the law; and change should only
come when it brings with it ‘finality and certainty’.

In his essay judge as lawmaker (1997), Lord Bingham identified some situations
where judges would or should be reluctant to make new law. For example: where
citizens have organised their affairs on the basis of their understanding of the law;
where a defective legal rule requires detailed amendments, qualifications and
exceptions; where the issue involves a matter of social policy on which there is no
consensus; or where the issue is in a field outside of ordinary judicial experience.
The extent to which any judge is prepared to innovate will depend on their view
of the balance to be achieved between competing requirements of the common
law. These are:

 the need for stability in the common law

 the need for certainty in the common law

 the need for flexibility in the common law

 the desire to do justice between the parties in the instant case

 the duty not to usurp (take over) the role of Parliament.

As Lord Dyson concluded in his 2014 speech on the power of the judiciary:

“... in deciding whether to develop the common law or to leave any change to
Parliament, the courts do not apply some overarching principle … some judges are
more cautious than their colleagues; others are more adventurous. But despite
these differences, the common law continues to evolve. What is clear is that the
judges have great power in shaping the common law and, therefore, influencing
the lives of all of us. The existence of this power is, of course, always subject to
Parliament. If Parliament wishes to change the common law, it can do so. But,
despite some notable exceptions … Parliament rarely shows any appetite to
change the common law. So far as I am aware, the manner in which the judges
develop the common law has not excited much political comment or given rise to
a demand to clip the wings of the judges. I would like to think that this is because,
on the whole, the judges have done a good job in this area and no-one has
suggested a fundamentally different way of doing things that would command
popular support.”

ADVANTAGES AND DISADVANTAGES OF BINDING PRECEDENT:

ADVANTAGES

1. Continuity
Precedent means following the example or ruling set by a court when judging a similar
case. In theory this should provide a solid foundation for judges to base a future ruling
off, provided the line of reasoning and conclusions reached follow the established
precedent.

2. Clarity
The application of well known precedents also makes it easy for other actors in society
to understand and conform to the law. If judicial rulings and punishments follow an
established rule, it cuts down on the appearance of favoritism or unfair persecution
under the law that can arise as a result of different outcomes to similar cases.

3. Stability
Jurisdictions that apply common law are some of the oldest continuously operating
judicial systems in existence. This is in no small part a result of the continued
application of precedent over time. If citizens or actors in a society are clear about what
the rules are and outcomes when they are violated, it has been shown to support better
governance and economic performance.

4. Fairness

court decisions (and therefore precedents) are freely available to everyone to

read and understand, and so this is transparent and fair

5. Time Saving

DISADVANTAGES

1. Injustice

every case is different, and so it is unjust to simply apply the same reasoning as in a
past case. This injustice is difficult to fix because only a superior court, faced with a
case that raises the unjust precedent, can overrule the precedent
2. Multiple Judgments

in cases heard before more than be judge, those judges may issue a single
judgment together or they may issue one each.
If their judgments show different lines of reasoning to arrive at the same
outcome, what then is the precedent from the case?

3. Rigidity

4. Slow development of common law.