 The English system of precedent is capable of demonstrating flexibility.

Describe how
the the Supreme Court can depart from previous decisions. Assess the significance of
these courts in allowing precedent to be flexible.

The English system of precedent is based on case law, which is when law is made
through the past decisions of judges by their interpretation of the law. In most cases, courts
will follow in the footsteps of decisions made in past cases with sufficiently similar facts,
according to the doctrine precedent. This doctrine, also known as stare decisis, states that
courts stick to what has been decided in the past, and this is also true for the Supreme
Court. The basis for a judgement or decision is the ratio decidendi, or the reasoning, while
the rest of the judgement is called the obiter dicta, or the other things said. There are a few
types of binding precedent, such as binding precedents, which must be followed by a later
or inferior court. Decisions made by the Supreme Court often become binding precedents
that the lower courts must follow. Besides that, the Supreme Court can also consult
persuasive precedents which are not binding but can be referred to which are made by a
lower court or the Judicial Committee of the Privy Council, such as when R v Howe and
Bannister was followed by the Supreme Court in R v Gotts which stated that a defense of
duress was not available for the crime of attempted murder.

To determine binding and non-binding precedents, the hierarchy of the courts must
be referred to. Cases start in the court of first instance, where hearing are held. Unhappy
parties may appeal to the appellate courts, such as the European Court of Justice, the
Supreme Court and the Court of Appeal. The Supreme Court, unlike the European Court of
Justice, prioritises certainty rather than flexibility by following past judgements more rigidly,
as seen in London Street Tramways v London County Council, where it was held that
upholding previous precedents was in public interest and would prevail over individual
hardships due to the importance of certainty. However, despite this, the Supreme Court has
demonstrated flexibilities that allow it to depart from past decisions which can be useful
especially to adapt to new circumstances and to prevent absurdities from occurring.

One flexibility is by way of overruling, which is when the Supreme Court finds that an
earlier judgement or theirs was wrong or if it disagrees with the decision made in a lower
court upon appeal. An example of this was in Pepper v Hart where the Supreme Court
overruled its own decision in Davis v Johnson to allow the right to use Hansard, or the
records of parliamentary debate in statutory interpretation. This change allowed later
courts to consult valuable material to better inform their decisions, meaning that they could
better uphold the law made by Parliament while also preventing injustice in future cases.

Besides that, distinguishing can be used by the courts, including the Supreme Court
to avoid following precedent. This is used when a court finds that two cases have sufficient
differences between their facts to draw a distinction between the two. An example of this is
when Merritt v Merritt was distinguished from Balfour v Balfour, which both involved a wife
claiming their husband has a breach of contract. IN the earlier case, Balfour v Balfour, the
wife’s claim failed because it was held that they had only made a domestic arrangement
which could not be enforced. However, in Merritt v Merritt, it was held that since the couple
was already separated and had their agreement in writing, they had established a legally
enforceable contract. This flexibility allows the courts to avoid lumping many different cases
into the same monolith, thereby preventing injustice by acknowledging different
circumstances between parties.

Besides distinguishing different cases, the judgement for a single case can be
changed upon appeal. This is called reversing and is when a higher court reverses the
decision made in a lower court, such as in R v Kingston. The defendant had been convicted
of sexual assault in the trial court, but this conviction was then overturned in the Court of
Appeal, citing the fact that he was inebriated at the time of the offense and had no criminal
intent due to an impaired judgement. However, the Supreme Court reinstated his
conviction. This power allows the Supreme Court to exercise its function as the highest
national court by altering the decisions of lower courts. This flexibility forms the basis of the
appeal process. Without it, it would be rendered useless, because judgements would not
change no matter how far they appealed.

While the above flexibilities apply to cases with precedents, an original precedent
may form if a point of law has never been brought up before. Thus, a new precedent can be
formed for future cases to follow. The Supreme Court made an original precedent in Hunter
v Others v Canary Wharf Ltd and London Dockland Development Corporation. This case was
about whether a building blocking a TV signal could be considered a private nuisance. As this
case pertained to relatively new technology and developments such as high-rise buildings
and TV signals, a case like this has never been decided before. Thus, Lord Pill drew from an
older case, Aldred’s Case, which had similar principles and stated that a loss of TV signal, like
a loss of view, was ultimately not actionable. Reasoning by analogy and the formation of
original precedents allows the law to adapt to new circumstances and technology, thereby
preventing the law from becoming antiquated and irrelevant.

In addition, the Supreme Court can also adapt to new circumstances with the use of
modification, which is when past precedents are extended to fit new situations. The
Supreme Court applied a past precedent from Donoghue v Stevenson in Ogwo v Taylor,
which both concerned the duty of care owed to a party. Donoghue v Stevenson established
the ‘neighbor test’ to determine the duty of care owed to a party, but while it was initially
used for corporations, it was extended to be used on individuals and private citizens as well.
This flexibility, like original precedent, allows the Supreme Court to adapt to ever-changing
circumstances, even developing major areas of law such as the law of negligence in the law
of tort.

While the Supreme Court has stated that flexibility in the law was not to be
proritised, this view has been challenged through the Practise Statement, issued in 1996. It
allowed the Supreme Court to overrule past judgements “if it felt right to do so”. However,
the Supreme Court was initially reluctant to use this power, first using it only in a very minor
instance involving the technical discovery of documents in Conway v Rimmer. However, the
Practise Statement was eventually used in major cases such as for the first time in
Herrington v British Railways Board which deviated from Addie v Dumbreck about the duty
of care owed to trespassers. The Practise Statement gained increased usage in the 1980’s
and the 1990’s, even extending to criminal law such as in R v Shipuri which deviated from
Anderton v Ryan about attempts to do the impossible. The Practise Statement gives the
Supreme Court agency to correct previous decisions of theirs that they believe is wrong,
allowing them to change the landscape of case law for the better as their judgements are
highly influential. Thus, this flexibility allows the Supreme Court to right their previous
wrongs to prevent the administration of justice becoming robotic and cookie-cutter.
However, it is important to note that the Supreme Court is still rather conservative in their
use of the Practise Statement in the name of upholding certainty. In some cases, they even
limit their own power to prevent infringing on the doctrine of parliamentary supremacy,
such as in the case of Airedale NHS Trust v Bland. Still, the existence of the Practise
Statement gives the Supreme Court another route or pathway to achieve the ultimate end
goal of justice.

The current court system that tries to strike a balance between flexibility and
certainty has its advantages and disadvantages. Flexibility allows the courts to adequately
fill in the gaps left by legislation, as new points of law can be brought up. Thus, it promotes
justice through the development of law, preventing the justice system from becoming
obsolete and losing its purpose. However, overuse of flexibilities offered may cause
unwanted effects, such as retrospective effects and illogical distinctions made by judges who
want to avoid following precedent. This may lengthen the litigation process as many cases
must be consulted due to increasing complexity. The public may also suffer as lawyers may
be less able to advise their clients, due to unpredictable judgements, thereby hampering
accessibility to the law.

While flexibilities come with their upsides and downsides, as long as the courts do
not overuse said powers, flexibility still has a place in the English legal system. The public
can be sure that the courts can exercise their function properly, which is to see that justice
is served. However, to ensure that the system performs its intended purpose, it must be
reformed occasionally, to prevent vague or unclear laws from affecting how the law is
carried out. With the proper checks and balances, public confidence and accessibility in the
law can be upheld while also ensuring that the people can get the justice they deserve while
taking into account personal circumstances and hardships.