Judicial Precendent

Topics: Stare decisis, Precedent, Common law Pages: 5 (1504 words) Published: December 11, 2010
The system of law used in England is common law in which decisions are arrived at by a judge, this is also referred to as judicial precedent, or case law. It is where the past decision made by a judge is used for future cases. This is a critical analysis of the effectiveness of precedent in satisfying access to justice.

What is Judicial Precedent
As defined above, the doctrine of judicial precedent is based on the principle of stare decisis, meaning 'to stand by what has been decided'. Under this doctrine, in giving judgement in a case, decisions made by judges in the higher courts sets a precedent for judges in equal or lower courts to follow, Judicial precedent can be applied and treated similar when the material facts of the cases are identical.

There are two principles of judicial precedent. There are the latin terms ‘ratio decidendi’ and ‘obiter dictum’. The binding part of a prior decision is the ratio decidendi, meaning the reason for the decision, and it must be followed by judges in future cases. Obiter dictum, meaning other things said, is not a binding precedent, it is known as a persuasive precedent and judges in later cases do not have to follow it, however it can be considered when making a decision.

Types of Precedent and the Hierarchy of the Courts
There are generally two types of precedents, binding or persuasive. A binding precedent is one which must be followed, whereas a persuasive precedent is not mandatory but can still be considered. Precedents are binding based on what level of the court the decision was made, it is therefore important to understand the hierarchy of the courts.

The highest Court of Appeal is the Supreme Court (formerly the House of Lords). The decisions that are made here are binding and the lower courts must abide by it. Previously, the Supreme Court was bound to follow all of its previous decisions London Tramways Ltd. v London County Council (1898) AC 375. On July 26th, 1966, in a statement known as the Practice Statement, the Lord Chancellor announced that the House of Lords would no longer be ‘absolutely bound by its own precedents’.

The Consequences of the Practice Statement
Lord Reid stated in Jones v Secretary of State for Social Services (1972) that there are seven factors to be taken into consideration before the Practice Statement should be used, they are; * The statement should be used sparingly

* A decision should not be over-ruled if:
* It would upset the legitimate expectations of people who had regulated their affairs in reliance of it. * It concerned the construction of a statute or document
* It was impracticable to foresee the consequence of overruling * There ought to be a comprehensive reform by legislation * It is simply wrong
* A decision should be overruled if it gave rise to uncertainty or was unjust or outmoded.

Precedent and the Court of Appeal
There are two divisions of the Court of Appeal, the criminal and civil, which are both bound by the higher courts but not by each other. The Court of Appeal Civil Division is bound by its own prior decisions. In the case of Young v Bristol Aeroplane Co Ltd (1944) three cases were identified where it would disregard a previous decision. They are; 1. Where there is conflict between two decisions of the Court of Appeal, 2. If the decision made conflicts with a future decision of the House of Lords 3. If the earlier decision was given ‘per incuriam’ (through want of care). However, a decision of House of Lords cannot be ignored on this same basis. Divisional Court’s of the High Court have adopted the rule laid down in Young’s case. Even though judges at a first sitting are not bound to follow the decisions of other High Court judges, they usually do for the sake of certainty.

Avoiding a Precedent
A judge can avoid following a precedent by overruling, reversing or distinguishing the decision of the court. Overruling is when a higher court...

Bibliography: Antoine, R.B., 2008. Commonwealth Caribbean Law and Legal Systems. New York NY: Routledge-Cavendish
Duxbury, N., 2008. The Nature and Authority of Precedent. New York NY: Cambridge University Press
Mortimer, T., 2009. Business Law. 2nd ed., London: Pearson Education Limited
Available at: http://www.lawteacher.net/PDF/Judicial%20Precedent.pdf
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[ 1 ]. The Court of Appeal is bound to follow its own decisions and those of courts of co-ordinate jurisdiction
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