Law Doctrine of Precedent The principle of the doctrine of precedent comes in 2 parts: 1.

Decisions made by superior coutrs is a binding precedent (a.k.a madatory authority), which an inferior court cannot change. 2. A court should not overturn its own precedent, unless there is a strong reason to do so. Persuasive precedents are those that have been set by courts lower in the hierarchy. They may be persuasive, but are not binding. Most importantly, precedents can be overruled by a subsequent decision by a superior court or by an Act of Parliament. Precedent works in the following ways: 1. Comprehensive and reliable system of law reporting. 2. A court hierarchy must exist, to guide judges on what court decissions they must follow (courts above it). 3. Identify the parts of judgement, if they are binding or seperating from any other. Law Reporting A system recording precedents, in volumes, arranged on a yearly basis. Council of law reporting was established in 1865. Eg the all england law report (All. ER), Chancery (Ch.), Queens bench division (QBD). Court Hierarchy A court is bound to follow the ratio (heart of precedent) of any decission, by a court above it in the hierarchy, whether or not it considers the decissions of the above court correct or not. Precedent in the House of Lords/ Supreme Court It stands at the summit of the English court structure, and its decissions are binding to courts below it. Untill 1966, it regarded itself bound to its previous decissions. In the case of London Street Tramways v London County Council [1898] AC 375. After this case, once the Lords had given a ruling on a point of law, the matter was closed unless and until Parliament made a change by statute. This is the most strict form of the doctrine of stare decisis (one not applied, previously, in common law jurisdictions, where there was somewhat greater flexibility for a court of last resort to review its own precedents). In this year the practice statement of Lord Gardiner, indicated the HL, in future, regard it self-free to depart from its previous decisions, where it appeared correct to do so. In Food Corp. of India v Antclizo Shipping Co. [1988] 1 WLR 603, [1988] 2 All ER 513, HL (on behalf of the court) stated that their Lordships would not depart from a previous House of Lords decision unless: (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. A few examples of the supreme court skyving its precedent include: 1. British railways vs Herrington (1972) L.All.ER.749.HL Claimant aged 6 was badly burnt by the electric rail, after passing through a gap in the fence. The station master knew about this gap, but did not correct this, despite knowing children often tresspassed. The HL, declined to follow this precedent in the case of Addie vs Dumbreck (1929) AC.350 in which it held an occupier of a premises had no duty to care for a tresspasser. (NEIGHBOUR PRINCIPLE). 2. R vs Shivpuri (1986) 2.All.ER.334.HL Defendant entered the country with a package that was believed to have heroine, yet it was brown dyed cabbage. D was charged with attemp to import drugs and convicted all the way to the court of appeal. The HL took note of the criticism in the case of Anderson vs Ryan (1985) 2.All.ER.355 (where it held that mens reus had to strictly cordinate with acteus reus- a guilty mind had to cordinate with a guilty act) The court convicted him and it was said he did attempt to bring drugs in the country. Court of Appeal It is bound by decissions of HL, even if it considers them to be wrong. In the case of Young vs Bristol Aeroplane Co Ltd (1944), the civil dision of the court of appeal held that it was bound by its own decissions subject to the following 3 questions: 1. Where there are 2 conflicting decissions the court of appeal must decide which to follow and which to reject. 2. Where a decission of its own has been appliedly overruled by HL. 3. The previous decission was given per inqarium (by carelessness/ mistake- 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) In the criminal division, precedent is not followed as rigidly because a persons liberty would be at stake. In P vs Taylor (1950) the court of appeal held that the law was misunderstood/ missapplied, then it must re-consider its previous decissions. Eg of criminal division overruling its previous decission, Gould (1968) , who was charged with bigamy (marrying more than one wife). He was under the honest but mistaken belief that his 1st marriage was dissolved. In the earlier case of Wheat vs Stocks (1921) held that it did not matter if the accused person thought about his earlier marriage. The court acquitted that the D Gould is held that the earlier case had been made per inqarium. Divisional Courts It hears cases from civil and criminal lower courts. For criminal division it is bound to cases of the HL and court of appeal. It may depart from its previous decissions to prevent injustice. In civil cases it is bound by decissions of the HL and the civil court of appeal and bound by previous decissions, subject to the 3 exeptions in Young vs Bristol Aeroplane Co Ltd

(1944).

High Court Bound by decissions of HL, court of appeal and divisional courts but not bound to it own previous decissions. It has deviated from its previous decissions in a big way like in the high trees house cases creating the equitable estopple. Ratio Decidendi & Obiter Dicta Ratio is the part of judgement forming binding precedent for future cases to follow. Obiter Dicta are statements made by the way. Eg in Donoghue vs. Stevenson the ratio was what is today known as the neighbour principle, it established that a person is only liable to pay damages, only if they negligently cause a person to suffer loses or injuries. Types of Precedent 1. Binding Precedent: Precedents that are followed by must by lower courts or by appeal courts that bind themselves. They are landmark precedents that have been followed including the 3 exceptions. 2. Persuasive Precedent: Do not have to be followed and a judge has the discretion whether to apply it or not. Include cases of foreign courts in common wealth. Flexibilty of Doctrine of Precedent 1. Distinguish: A judge may consider the facts of the case he is hearing, sufficiently different from that of a precedent, thus he is at liberty to abanndon the previous precedent and determine the verdict as to the merit of the cases. Eg, in the cases of Merrit vs Merrit & Balfour vs Balfour , Balfour was decided in 1919, where a husband who worked abroad decided to pay his wife 30 monthly. He failed to pay, forcing her to sue him. The court rejected a remedy on the basis, that a wife couldnt be bound legally by contract between the 2. Merrit was decided in 1970. The husband left the matrimonial home to live with a mistress. They met and decided the husband would pay his wife 40 and a transfer od the matrimonial house to her name. He did not do as promised. She sued him and the court held she was entitled to the matrimonial home and allowance, despite the contract between the 2 spouses. 2. Disapprovig: When a judge decides a previous decission is wrongly decided. It will not result to the case being overruled at the time, though judicial dissapproval may be persuasive to the judges in other cases, so that law percieved as followed is not perpetuated. Visible in the case of Anns vs. Merton London Borough Council (1978) , both in respect to the contribution to the duty of care principle and its specific relevance to cases relating to the liability of local authorities, for property damages caused by deffective construction work, was widely dissapproved by a number of later cases before being overruled by Murphy vs. Brentwood District

Council (1991)

3. Overruling: Occurs when a court believes a previous case is no longer good law and doesnt follow it. It doesnt extend to affect the parties in the authorities overruled. Illustrated in British railways vs Herrington (1972) L.All.ER.749.HL & Addie vs

Dumbreck (1929) AC.350 R vs Shivpuri (1986) 2.All.ER.334.HL & Anderson vs Ryan (1985) 2.All.ER.355
4. Reversing: This is when a court changes the ruling of a decision from a lower court through the appeal process. Eg in the case of Grobbelaar vs News Group Newspapers Ltd (2001) reversing the courts decision of the court of appeal.

Advantages System creates certainty within the law Judgements can give detailed practical rules for other judges to follow Outcome of a new case can be predicted for earlier decisions so that it avoids unnecessary litigation Flexibility within the system allow the law to develop when necessary and it can be changed quicker than an act of parliament Disadvantages The rigidity of the system of precedent prevents the law from being changed. In the case of A vs Hoare (2006), expressed dissatisfaction when it could not overrule an earlier decision of HL relating to time limits on a civil claim, relating to sexual assaults. It concerned a rape victim who wished to sue the convict, when she was informed he won the national lottery. Illogical distinctions may be made by judges in a case to avoid following a previous decision It is unpredictable and dependent on chance that a case will reach a court high enough to be able to change the law The Ratio Decidendi of a case may be difficult to find in the law report and may be misapplied to a future case It is undemocratic to allow judges to make laws