the operation of the doctrine of precedent

material facts

important facts that could affect the outcome of the case and are vital to the reason for the decision. It is the ratio decidendi and the material facts that are considered when deciding cases in the future.

disapproval

judges in an inferior court can express disapproval about a precedent set in a superior court, however they are still bound to follow it.

obiter dictum

remark made by a judge in passing, which is not binding. It means 'things said by the way' This statement may be influential on decisions in the future - it will act as persuasive precedent.

Ways judges can develop precedent or avoid following an earlier decision

- Distinguishing a previous precedent: A court decides that the main facts of a case are sufficiently different to a previous precedent and therefore that the precedent is not binding. This is known as distinguishing a previous decision. - Reversing a precedent: when a case is taken on appeal to a higher court, the superior court may change the decision of the lower court, thereby reversing the earlier decision (precedent) in the same case. A higher court makes a different decision than a lower court in the same case. - Overruling a precedent: when a superior court decides not to follow an earlier precedent of a lower court in a different case, it can overrule the previous precedent. This means that a new case in a higher court creates a new precedent, which means the previous precedent in a different case is no longer applicable.

persuasive precedent

A decision of another court which is of persuasive value only (not binding) Precedents considered to be persuasive but not binding are: - From courts in another hierarchy - From courts on the same level of the hierarchy - From courts lower in the same hierarchy - Obiter dicta contained in a judgement of a court in the same hierarchy or in another hierarchy

binding precedent

A decision of a higher court that must be followed by lower courts in the same hierarchy The High Court is not bound by its own previous decisions. However, in the interests of consistency, it will usually follow its previous decisions unless it believes that a previous decision is not good law or outdated.

interpretation of past decisions

Courts can be called upon to interpret the meaning of the words in past decisions and apply precedents set in previous cases. Sometimes courts are bound by past decisions while at other times the courts are able to distinguish, overrule, reverse or disapprove past decisions. This allows the law to develop through courts. Decisions may also be broadened or narrowed when interpreted by future courts. When interpreting past decisions it might be difficult to find precedents because there might be a number of precedents covering one issue. There may also be conflicting precedents. This situation will remain until a High Court decision can clarify the area of law. There has been a gradual development of the law through the courts. The law of negligence is a good example of the development of common law. Development of the law of negligence: pg.208-211

disapproving a precedent

When a previous decision (precedent) has been made in a court at the same level in the court hierarchy, or at a lower level, the present court may state that it does not agree with the earlier decision. The present court is not bound to follow the earlier decision, although for the sake of consistency it usually will. Both the precedent created in the earlier case that has been disapproved and the precedent that may be created in the present case remain in force until another case is taken to a higher court.

doctrine of precedent

the common-law principle by which the reasons for the decisions of courts higher in the hierarchy are binding upon courts lower in the same hierarchy where the material facts are similar. The principle of the doctrine of precedent creates consistency and predictability. When a person takes a case to court they will have some idea of the outcome because like cases are decided in a like manner.

stare decisis

the principle at the heart of the doctrine of precedent. It means, 'to stand by what is decided'.

precedent

the reason for a court decision that is followed by another court lower in the hierarchy

ratio decidendi

the reason for a decision (the binding part of a decision).