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The Lordships regard theuseofprecedentasanindispensablefoundationuponwhichto decide

what is the law and its application to individual cases.1 The quote above illustrates that
precedent has animportantroleinboththeformationandthedevelopment ofthelaw. Thisessay
will analyse the effect of the doctrine of precedent on New Zealand legal system while
simultaneouslydiscussingitspositiveandnegativevalues.

The doctrine of precedent in New Zealand upholds the principle that all like cases are treated
alike.2 Precedentexistsaseitherbindingorpersuasiveauthority.3Staredecisisisthedoctrineof
binding precedent which mandates thattheratiodecidendiofpreviouscaseswhichweredecided
by the higher courts are followed by the lower courts in the hierarchy. 4However, none of the
courts at any level of the hierarchy are boundbytheirowndecisions.5Also,abindingprecedent
does not need to be applied if the judge manages to distinguish a decision on its facts.
Alternatively, persuasive authority indicate sources of law that a judge might have considered
whenmakinghisdecisiononacase.6Thismayincludevariouslegalsourcessuchasdecisionsof
lowercourtsortheobiterdictaofajudgement.

The mainvalue ofthedoctrineofprecedentisthatitcreatesacomprehensivelegalsystemwhich


develops through the involvement of judges at all levels of the court hierarchy. Hence the legal
system maintains its certainty alongside balancing its main priority of effecting justice. The
employment of stare decisis ensure that the development of law progresses according to
decisions made by the highest court in New Zealand the Supreme Court.7Thelower courtscan
only decideoncasesaccordinglywiththelegalprinciplesestablishedbythehighercourtrulings.
Hence, there is a clear element of certainty in the law which benefit bothjudgesinlowercourts
aswellasindividualsseekinglegalintervention.

PracticeStatement(JudicialPrecedent)[1996]1WLR1234(HL)ascitedinLaw131LegalMethodp46
TheDoctrineOfStareDecisis,P38,Law131LegalMethod2014
3
ibid
4
ibid
5
TheDoctrineOfStareDecisis,P4041,Law131LegalMethod2014
6
TheDoctrineOfStareDecisis,P38,Law131LegalMethod2014
7
TheDoctrineOfStareDecisis,P4041,Law131LegalMethod2014
2


However, the Supreme Court can overrule decisions of the lower courts and also expand
existing/ create new legal principles which allows for consistent development of the law.8 For
example, the case of Donoghue v Stevenson [1932]9, created the modern legal concept of
negligence. This landmark decision by the House Of Lords also established Lord Atkins good
neighbour principle10 which expresses that there exists a duty of care between consumer and
producer in the law of tort. Hence, the doctrine of precedent ensures that the law maintains
reliabilitywhilealsoallowingittodevelopwiththetimes.

Judges in lower courts also play an important role in ensuring thedoctrineofprecedentremains


useful in the development of the law. Although they are bound by higher courts, well reasoned
decisions of theirs are regarded as persuasive precedent by the higher courts.11 Moreover,
although only Supreme Court judges decide on the principles oflaw,itisuptothejudgesofthe
lower courts to decide how widely those principles of law may be applied. If stare decisis
mandates that like cases be treated alike, it is the lower courts that reinforce theprincipleofthe
law by deciding how alike these cases are12. For example, although the Supreme Court
established the good neighbour principle in DonoghuevStevenson,itisuptothelowercourts
to decide the extent to which a relationship between individuals constitute that of being agood
neighbour, when deciding subsequent cases. Hence, the doctrine of precedent ensures that
development of the law takes place consistentlythroughoutthehierarchyofjudgesthuscreating
acohesivesystemoflaw.

However, there is a clear distinction between the principle of development that the doctrine of
precedent seemingly embraces and the realistic practicality of the difficulty in ensuring that the
legal system continuously evolves. Although judges inlowercourtsdohavethelibertytodepart
from their own decisions, they are stillobligatedtofollowtheprinciplesoflawdecideduponby

ibid
DonoghuevStevenson[1932]AC562(HL)ascitedinLaw131LegalMethodp66
10
DonoghuevStevenson[1932]AC562(HL)ascitedinLaw131LegalMethodp66
11
TheDoctrineOfStareDecisis,P38,Law131LegalMethod2014
12
ExtendingandDistinguishingPrecedent,p65,LegalMethod2014
9

the Supreme Court. To potentially develop a new principle of law, the said case has to proceed
through the hierarchy of the courts13 which is both a long and expensive process. Realistically,
very few cases will be decided by the Supreme Court and that results in the law developing
slowly.

Moreover, the concept of stare decisis which allows higher courts to overrule lower courts and
not vice versa insinuates the misconception that due to extra years of experience, judges in
higher courts are not prone to mistakes. Decisions which are madeperincuriam(ignoranceofa
relevant statute or precedent) are still meant to be implemented by lowercourtsregardlessofan
oversight in regards to relevant principles of law14. A declaration of per incuriam by a lower
court is considered to be null and is not required to be followed, evenbycourtslowerdownthe
hierarchy15. Through this requirement, the doctrine of precedent appears to createahierarchyof
legal values where certainty in thelawisconsideredmoreimportantthantheoverallprincipleof
enforcementofjusticeinthelegalsystem.

In conclusion, the doctrine of precedent serves its purpose as a powerful legal tool in ensuring
that the judicial system operates systematically and methodically. However, its focus on
fortifying the value of certainty in the legal system has effectuated rigidity in the law.
Nevertheless, one can only hope that as the system of thelawevolves,thedoctrineofprecedent
will progress alongsideitandreinforceitselfasalegalprinciplewhichallowsthelawto develop
flexiblywhilepreservingitsreliability.

(1064wordsincludingfootnotes)

13

StareDecisisandtheNewZealandcourts,p40,Law131LegalMethod2014
Decisionsreachedperincuriam,p39,Law131LegalMethod2014
15
ibid
14