Judicial Precedent

Outline
1. What is Judicial precedent?
1.1 Why do we need it?
1.2 How does it work? Binding + Persuasive precedent
1.3 Ratio decidendi + orbiter dicta
1.4 Material facts & distinguishing cases
1.5 How do cases lose binding authority?
a) Overruling
b) Express & implied
c) Reversal
2. Role of Judiciary
2.1 Do judges make or declare the law?
2.2 Judges as law makers
3. Court hierarchy
4. Vertical & Horizontal Precedent
4.1 Vertical precedent
4.2 Practice statement
4.3 Horizontal precedent
4.4 Practice statement in SC
4.5 Vertical precedent & Horizontal precedent in CA- Young v. Bristol Aeroplane exceptions

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• ‘Precedent’- a decision in an earlier, similar case, to help the court reach a decision in the case before
them- why do we need it?
• To promote justice
• To maintain consistency
• To promote certainty
• To increase predictability
• To avoid continually litigating legal points
• To maintain fairness
• To increase efficiency
• Binding precedent- courts are bound to follow earlier decisions even though a judge in second
instance might not agree with it – stare decisis; to stand by what has been decided. Precedent will
continue to bind courts unless
• Another court decides case was incorrectly decided
• For some other reason cannot be allowed to stand
• A court higher in hierarchy overturns the decision
• Until parliament decides to change the law by passing an Act that overrules the rule
• Persuasive Precedent- not binding but still taken into account- types of persuasive precedent;
• Ratio of Judicial committee of privy council (JCPC)
• Ratio of superior courts in other common law jurisdictions
• Decisions of other High Court judges Created by: MURK SHAH
Ratio decidendi and Obiter dicta
Decisions comprise of:
• Material facts of the case
• Information about arguments made in court
• Decision of the case
• Reasons for those decisions
• Reasoning that lead to the decision

Ratio decidendi: material facts and application of legal principles to those facts –
i.e. ‘reason for deciding’; legal rule of the case
“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 having regard to the line of
reasoning adopted by him”- Precedent in English law 1977 (Sir Rupert Cross)
Obiter dicta: things said by the way but not essential to the caseCreated by: MURK SHAH
What are material facts and how do judges distinguish the facts/point of law?
• Material facts: facts that are important to the decisions
• Donoghue v. Stevenson (1932): whether a manufacturer of a food product could be liable for causing
injury to the consumer of product resulting in negligent manufacturer
• Facts: Plaintiff fell ill as a result of consuming ginger beer poured from a brown bottle which contained a
dead snail- what are the material facts?
• ‘BROWN BOTTLE’ – to show that the contents could not have been examined
• ‘Ginger beer’- not material

• Distinguishing; judges must follow precedent unless a similar precedent can be distinguished
on material facts or point of law involved
• Merritt v. Merritt (1970): Husband left wife, 180 pound left owing to house jointly owned by couple,
couple entered into written agreement where he would be 40 pounds/month to help her meet mortgage
payments until it was paid off, he would transfer his share of house to her. Mortgage fully paid, she
brought an action for declaration that the house belonged to her.
• Held: Precedent Balfour v. Balfour: In both cases, the wife made a claim against her husband for breach
of contract. In Balfour, it was held that the claim was invalid, because the matter between the husband
and wife did not involve legal arrangements. In Merritt, the case of Balfour was distinguished because
the parties actually had a legal agreement in writing, so it was a legally enforceable contract. In Balfour,
agreement was purely domestic/social agreement & presumed to not be legally binding.
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Cases losing binding authority: three ways cases can lose its binding force
• Express or implied overruling: Expressly by Parliament by passing an act- impliedly if
inconsistent with a later Act of Parliament
• Reversal: loser appeals and appellate court agrees. If cases reverse only on issue of fact,
ratio does not reverse and stays binding.
• Overruling: overruled by higher court either by expressly overruling an earlier case or
produces a ratio which is inconsistent with that of earlier case. Example, R v R where the
courts had previously decided that the Sexual Offences Act did not recognize spouse to be
accountable for rape and so sexual intercourse in marriage (without the wife’s consent)
could not be considered as rape. On appeal, the HOL overruled the decision of the courts
and gave the judgment that when the wife withdraws consent from sexual intercourse, the
husband could be convicted of rape.
How to identify ratio decidendi of a case?
• Look for
• Analysis of the judge
• Key legal principles followed
• How principles have been applied to facts
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Role of Judiciary
Precedent is a judge made rule that they have implemented on themselves (not by Parliament) which has been
subject to change and challenge over the years.

Do judges make law?

Judges are not elected representatives & lack authority/legitimacy to make law.
Declaratory theory- William Blackstone: The declaratory theory relates to the fact that judges do not make laws
they simply discover and declare what the law has always been. 
”judges do not make the law, but merely, by the rules of precedent, discover and declare the law that has always
been: [the judge] being sworn to determine, not according to his own sentiments... not according to his own private
judgment, but according to the known laws and customs of the land: not delegated to pronounce a new law, but to
maintain and expound the old one”
This is often seen as a mere fiction and the reality is that judges do make and change the law.
“…we must accept the fact that for better or worse judges do make law and tackle the question how do they
approach their task..”- Lord Reid (The judge as law maker)
“...there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he
does. How can he help it?” Lord Radcliffe (Not in Feather Beds)

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Where should the judges be reluctant in making new law?
• Where citizens have organized their affairs on basis of their understanding of the
law
• Where a defective legal rule requires detailed amendments, qualifications and
exceptions
• Where issue involves a matter of social policy where there is no consensus;
example compelled speech regarding pronouns
• Where the issue is in a field outside of ordinary judicial experience
The judges will try to achieve a balance between competing requirements when
innovating on existing law:
• stability
• Certainty
• flexibility
• Justice
• abstaining from usurping role of parliament Created by: MURK SHAH
Court hierarchy

The Supreme Court (House of Lords) is the highest domestic court of UK whose decisions are
binding on all inferior courts and after the Practice Statement 1966, it is not necessarily bound by its
own decisions.
The decisions of the Court of Appeal are binding on the High court judges sitting individually, other
divisional courts and all inferior courts, the practice of following precedent is stricter in civil courts
as compared to criminal courts.
The High Court’s decisions are binding on inferior courts but not on other High court judges (except
divisional courts of High Court).
The decisions of Magistrate’s and Crown courts are not binding on any courts.

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Vertical and Horizontal Precedent
• Vertical precedent
• SC binds all courts below it
• Horizontal Precedent
• Until 1898 HOL (SC) was not bound by its own decisions.
• London Street Tramways Ltd v. London County Council 1898 HOL made itself bound by own decisions
• 1966 Practice Statement: generally bound by precedent but can deviate when needed

• Practice Statement 1966; Lord Gardiner;

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its
application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of
their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and
also unduly restrict the proper development of the law. They propose therefore, to modify their present practice and, while
treating former decisions of this house as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively 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.
This announcement is not intended to affect the use of precedent elsewhere than in this House.”

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Key points of Practice Statement:
• court will only rarely depart from earlier decisions
• such as in social changes, or precedent is outdated or when it doesn’t sit appropriately with
modern
• conditions, practices and values (example, would a court in UK today hold a homosexual couple to be
committing a crime? (civil partnerships act)
• court will likely depart from precedent to keep up with law of other jurisdictions
• court will be careful in departing from decisions where certainty is required in criminal law
Horizontal Precedent in SC today:
• Austin v. Southward London Borough Council (2010) – prior jurisprudence of HOL had been transferred to
UKSC and so UKSC would not regard itself bound by earlier decisions:
“SC has not thought it necessary to reissue the Practice Statement as a fresh statement of practice…It was part
of established jurisprudence relating to conduct of appeals in the HOLD which was transferred to this Court by
section 20 of Constitutional Reforms Act. So the question which we must consider is not whether the Court has
power to depart from previous decisions of HOL which have been referred to but whether..it would be right to
do so.”

Constitutional reforms act 2005- Created the SC and abolished the appellate jurisdiction of the HOL
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Use of Practice Statement:
HOL/SC have been careful with using the PS while also remaining flexible, maintained
consistency & predictability.
R v. Shivpuri (1986): HOL overturned it’s own decision in Anderson v. Ryan. In
Shivpuri, D was holding a drug believing it to be a controlled drug where in fact it was
harmless. Previously in Ryan, courts had held that the D holding a recorder believing it
to be stolen while it wasn’t could not be guilty of attempting to steal goods as the goods
weren’t stolen in the first place. Whereas in Shivpuri, the judge considered Ryan as
wrong & held there was no distinguishable point which could hold a different decision.
R v. Howe (1987): overturned decision in DPP for Northern Ireland v. Lynch holding
that duress can never be a defense to murder.
British Railways Board v. Herrington (1972): under common humanity, a landowner
owes a duty of care to trespassers & should take reasonable steps to deter people from
trespassing; this case overturned Addie v. Dumbreck where a landowner was only liable
to trespasser for harm if it was caused intentionally.
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Horizontal & Vertical precedent in CA
Vertical Precedent (Civil)- CA is bound by decisions of SC.
• Lord Denning tried for years to free CA from binding precedent.
• Cassell & Co. Ltd v. Broome 1972- Denning J awarded 25k damages which did not follow the limit set by HOL in
Rookes v. Barnard. Appeal to HOL where Lord Hailsham disapproved & held “…in the hierarchical system of courts
which exists in this country, it is necessary for each lower tier, including CA, to accept loyally the decisions of higher
tiers”
Horizontal Precedent (Civil)- bound by previous decisions except the exceptions laid down
in Young v. Bristol Aeroplane Co Ltd (1944):
• Exceptions:
• Conflicting decisions: where material facts of two CA cases are similar but conflicting, the later court can decide which
case to follow however it is not bound to do so.
• Conflict with subsequent HOL/SC decision: previous CA decision conflicts with later HOL, CA must follow HOL/SC
decision.
• Decisions per incuriam: where previous CA decision was given in ignorance of a law or without sufficient care, later
court is not bound to follow it and the decision will lose binding force.
• Conflict with earlier decision of HOL/SC: when CA decision conflicts with previous HOL decision; this happened in
Miliangos v. George Frank Ltd 1976 where CA had to decide between following an earlier HOL decision in Havanah
& a later CA decision in Scorsch Meier v. Hennin where Denning refused to follow Havanah. The first instance judge
followed Havanah however on appeal Denning J upheld Scorsch. On final appeal to HOL, HOL held CA had
incorrectly followed Scorsch but overruled Havanah and reasserted that the courts must follow the decisions of HOL,
not CA.
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• Davis v. Johnson 1978- the debate whether CA should follow its own earlier
decisions was settled that it must follow. In Davis, the P ran away after being
subject to domestic abuse from partner & appealed to court to have the D
excluded from the apartment. Interpreting s1 of Domestic violence act, the CA
held that the act protects a female cohabitee even where she is just a joint tenant
or not a tenant at all. Previously, CA had held in B v. B and Cantliff v. Jenkins
that the Act only protected a cohabitee where she is a sole owner or sole tenant.
Denning J held:
“…while this court should regard itself bound by a previous decision of the court.. It should
be at liberty to depart from it if it is convinced the previous decision was wrong….the answer
is this: the House of Lords may never have an opportunity to correct the error and thus be
perpetuated indefinitely, perhaps forever”
• The case was appealed to HOL where the court overruled B v. B and Cantliff v.
Jenkins however made a statement about stare decisis- Lord Diplock said:
“The rule as it has been laid down in Bristol Aeroplane case had never been
questioned…..In my opinion, this House should take the occasion to reaffirm expressly,
unequivocally and unanimously that the rule laid down in the Bristol Aeroplane case is still
binding on the CA”. Created by: MURK SHAH
Horizontal precedent in CA (Criminal):
• Precedent is same as civil division except
• Where the court feels the law has been misapplied
• R v. Taylor 1950: Bristol Aeroplane case will apply however Court has power to depart
where:
• A full court is essential
• Power should be exercised in favor of citizen

• JCPC/Privy Council: decisions of JCPC do not bind English courts however

Willers v. Joyce 2016 has sparked debate. SC said that rules of precedent
should be followed however as Privy council is made of justices of SC, it is
open to them to say that decision of other courts are wrong and the law of
Privy council should be treated as laws of England and Wales.

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