Judicial Precedent
Extra exceptions to the COA binding itself
-COA (criminal division) has flexibility as it can also depart from its own previous decisions if the law has been 'misapplied or misunderstood' - occurred in R v Gould (1968), R v Rowe (2007) - had to be remembered they were dealing with the liberty of an individual, and if it was in the interests of justice to depart from a previous decision, 'then this court should not shrink from so acting' -COA criminal division does not bind civil division, just act as persuasive precedent - Re A (2001) -COA can also use the normal rules of distinguishing as shown in Balfour v Balfour and Merritt v Merritt
Disadvantages of the COA having power to depart from its own decisions
-COA could be reluctant to use the power like the SC due to the fact that it values the certainty that the law should offer rather than old decisions being changed -would reduce certainty in the law - make it more difficult for lawyers to advise clients on likely outcome of the case - however some may argue it is a good thing that each case will be decided on its own merits rather than being influenced by what has happened in the past -would undermine the power and authority of the SC -if the SC and the COA both had the power to depart from their past decisions then the whole system of precedent would break down -could cause an increase in the number of appeals from the COA to the SC if the law was changed unfairly
R v Gotts (1992)
-COA followed an obiter dictum statement by the HOL in R v Howe (1987) about duress - using decision as persuasive precedent
Miliangos v George Frank (Textiles) Ltd (1976)
-COA refused to follow HOL decision in Havana Railways (1961) which said that damages could be awarded in sterling -Miliangos went on appeal to the HOL, where it was pointed out that the COA had no right to overrule the HOL -HOL then used the practice statement to overrule its own decision in Havana Railways
Re Medicaments (no 2), Director of Fair Trading v Proprietary Association of Great Britain (2001)
-COA refused to follow HOL in R v Gough (1993) because it was slightly different to decisions of the European Convention of Human Rights
County Court and Crown Court
-County - civil jurisdiction -Crown - criminal jurisdiction -courts of first instance -bind no one -bound by all higher courts
Davis v Johnson (1979)
-HOL - 'expressly, unequivocally and unanimously' reaffirmed the rule in Young v Bristol Aeroplane (1944)
Horton v Sadler and another (2006)
-HOL departed from its previous decision in Walkley v Precision Forgings (1979) as: (1) it unfairly deprived the claimants of a right that Parliament had intended them to have (2) it had driven the COA to draw fine distinctions (3) it went against the clear intention of Parliament
London Street Tramways v LCC (1898)
-HOL held that certainty in the law was more important than the possibility of individual hardship being caused through having to follow a past decision -therefore if a bad decision has been made the only way to change it would be a new Act of Parliament -this rule of precedent became criticised over time and it was argued that allowing the former HOL to change their minds and depart from a previous bad decision would provide justice
Mendoza v Ghaidan (2004)
-HOL implicitly approved the new operation of the doctrine of judicial precedent that an inferior court is allowed to overrule a decision of a superior court in relation to human rights
A v Hoare (2008)
-HOL overruled a previous decision (Stubbins v Webb) allowing the rape victim to claim damages from her attacker when he won the lottery after being released from prison -previously she would not have been allowed due to the time that had lapsed between the incident and claim
Donoghue v Stephenson (1932)
-Mrs Donoghue was at a cafe with her friend -friend bought a bottle of ginger beer for her -as she got to the end of the bottle, she found the remains of a decomposed snail inside the bottle -she suffered nervous shock and gastroenteritis PRINCIPLE -HOL recognised that a manufacturer owed a duty of care to the consumer -the 'neighbour test' was created - someone so closely related to your actions that you should have had them in mind at the time
Use of the Practice Statement in criminal cases
-Practice statement stressed that criminal law needs to be certain, so it is unsurprising that the HOL did not rush to overrule any judgments
Decisions of the Judicial Committee of the Privy Council
-Privy Council is not part of our court hierarchy and therefore does not form precedent but does deal with final appeals albeit mostly from commonwealth countries -made up of senior judges from the Supreme Court -sits in the Supreme Court building but remains separate -due to the seniority of its judges it does give very persuasive authority
Austin v London Borough of Southwark (2010)
-SC confirmed that the Practice Statement applied to the SC -despite this they decided not to use this power in this case as it involved tenancy law and they believed that certainty in the law was crucial in this area
Herrington v BRB (1972)
-a 6 year old boy wandered onto an electrified line and was badly injured -earlier case of Addie v Dumbreck (1929) had decided that an occupier of land would only owe a duty for injuries to a child trespasser, if those injuries had been caused deliberately or recklessly PRINCIPLE -HOL held that social and physical conditions had changed since 1929, and the law should also change
AG for Jersey v Holley (2005)
-about old defence of provocation -Privy Council decision conflicted with an earlier HOL decision (Smith 2000) -however the COA in R v James; R v Karimi (2006) confirmed that the Privy Council decision should be followed in this instance
Should the COA have to follow the SC?
-both divisions of the COA are bound by the ECJ and the HOL/SC - but there have been attempts to argue that the COA should not be bound by the SC
Advantages of using precedent
-certainty - public know what the law is and how it will be applied - lawyers can advise on the likely outcome of a case -consistency - just and fair that similar cases are decided in a similar way -flexibility - SC can now use the practice statement to overrule cases when 'right to do so' - and courts can now use the tool of distinguishing -saves time inside and outside of court
Persuasive Precedent
-decision that is not binding on the court, but the judge may consider it and decide that it is a correct principle so he is persuaded that he should follow it -many different types of persuasive precedent
Overruling
-decision which states that a legal rule in an earlier case is wrong -normally has a retrospective effect as it is saying that something that happened in the past is wrong -may occur when a higher court overrules a lower court -practice statement allows SC to overrule its past decisions -exceptions in Young v Bristol Aeroplane allow the COA to overrule its past decisions in limited circumstances -cases to illustrate the concept of overruling are BRB v Herrington, Pepper v Hart, Miliangos v George Frank Textiles
Rylands v Fletcher (1868)
-defendants employed independent contractors to build a reservoir on their land -contractors found disused mines that had been partially filled in -decided not to fill them properly and proceeded to fill the reservoir with water -water flooded through the mineshafts into the plaintiff's mines on the adjoining property PRINCIPLE -plaintiff secured a verdict at Liverpool Assizes -Court of Exchequer Chamber held the defendant liable and the HOL affirmed their decision
Balfour v Balfour (1919)
-doctor advised Mrs Balfour to stay in the country when her husband travelled abroad to work -upon leaving he promised his wife he would pay her an allowance -when they later separated he stopped paying her PRINCIPLE -court said there was no intention to create legal relations as it was a domestic arrangement
Decisions of courts in other countries
-especially happens where the other country uses the same ideas of common law as in our system e.g. Commonwealth countries such as Canada, Australia and New Zealand
Jones v SoS for Social Services (1972)
-even though this case was decided in the same year as Herrington the HOL showed a clear reluctance to use the practice statement -even though 4/7 judges regarded the earlier decision in the case of Re: Dowling as wrong the Lords refused to overrule it
The Practice Statement 1966
-eventually it was agreed that the HOL should have more flexibility -in 1966, the Lord Chancellor issued a change to rule in London Tramways, called the practice statement: The HOL will depart from its previous decisions where 'it appears right to do so'
The Court Hierarchy
-every court is bound to follow any decision made by a court above it in the hierarchy -in general, appellate courts are bound by their own past decisions which means they have to follow their own past decisions -the European Court of Justice (ECJ) binds all lower courts but does not bind itself
Conway v Rimmer (1968)
-first use of the practice statement in a civil case but the case only involved the procedure of asking for certain documents in a civil case -HOL overruled the previous case of Duncan
The COA: Precedent
-has the power to hear appeals from the lower courts -split into criminal and civil divisions -each division is bound by itself -not bound to follow each other -each division acts as persuasive precedent on the other division -it has power to consider referrals from the Attorney General on any points of law as well as unduly lenient sentences -COA can use the tool of distinguishing to avoid a precedent like all courts
Court of Appeal
-hears appeals -has a civil and criminal division -binds all lower courts and each division binds itself (not each other) -bound by ECJ and SC
Supreme Court
-highest court of appeal -has civil and criminal jurisdiction -binds all lower courts but does not bind itself -bound by ECJ
Merritt v Merritt (1971)
-husband and wife were separated when they agreed that he would pay the mortgage so the court said they did have intention to create legal relations
Should the COA have to follow the SC's decisions? - YES
-if COA could overrule SC precedent would break down and the law would become uncertain - there would be two conflicting precedents for lower courts to choose from
Original Precedent
-if a point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow, i.e. it is an original precedent -may come about in a case that involves new technology or some other modern development that has never been an issue before -as there is no past law to follow - the judge may reason by analogy - Hunter v Canary Wharf (1995), about loss of TV reception reasoned by analogy with Aldreds case (1611) about loss of view -some people argue that creating an original precedent that other courts have to follow is going beyond the powers of the judiciary as they are not elected to make new law - however Parliament cannot be expected to create law for every conceivable scenario
Hunter v Canary Wharf (1997)
-in 1990 the Canary Wharf tower was built in London -many local residents complained this interfered with their television reception PRINCIPLE -HOL held unanimously that such interference could not amount to an actionable nuisance
Kay v Lambert London Borough Council (2006)
-in contrast to this, if there has been a decision from the European Court of Human Rights that conflicts with a COA decision, then the matter can be referred to the SC -normal rules of precedent apply and the matter should be appealed to the SC for the law to be changed
Distinguishing
-judge finds that the material facts of the case he is deciding are sufficiently different for him to draw a distinction between the present case and the previous precedent -he is not bound by the previous case
Courts lower in the hierarchy
-judgment from a case that was decided by a court lower in the hierarchy may be used as persuasive precedent -R v R (1991) - HOL followed the reasoning of the COA in deciding a man could be guilty of raping his wife
Magistrates Court
-mainly criminal jurisdiction -binds no one -bound by all higher courts
Human Rights cases
-one situation where it has been argued that the COA need not follow the SC
Former HOL: Precedent
-originally the view was that the former HOL has the right to overrule its past decisions -gradually throughout the 19th century flexibility disappeared as this court felt that certainty in the law was reinforced when they stuck to their past decisions
Obiter dicta
-other things said e.g. speculation on hypothetical situations; minority judgments; general comments -remainder of the judgment is obiter and judges do not have to follow it
R v Shivpuri (1986)
-overruled Anderton v Ryan (1985) on attempts to do the impossible -HOL recognised they might sometimes make mistakes and the most important thing was to put the law right
R v R and G (2003)
-overruled the earlier decision of R v Caldwell (1982) on the law of criminal damage -in 2003 the HOL admitted they had got the law wrong -this changed the mens rea from objective to subjective recklessness
Statements made obiter dicta
-particularly in HOL/SC judgment, there could be some very persuasive comments in the obiter dicta
Advantages of the COA having power to depart from its own decisions
-practical advantage - final appeals court for most cases, as many do not get as far as SC for practice statement to be used and law changed - bad law can stay in place under the current system as COA don't have the power to change it -COA deals with vast majority of appeals - would be more effective if it could change a wrong decision it had made in the past -stop unnecessary appeals going to SC - save time and money -improve flexibility of the doctrine of precedent - give public more confidence in the fairness of the legal system -allow justice to be sought more quickly rather than waiting for the case to be heard by the SC
Change of name
-pre-2009, the HOL was the highest and most senior court in the country, but it also referred to one of the Houses of Parliament -Constitutional Reform Act 2005 changed this - from October 2009 the highest court became the Supreme Court and was given a separate building to hear cases
Binding Precedent
-precedent from an earlier case which must be followed even if the judge does not agree with the legal principle -only created when the facts of the second case are sufficiently similar to the original case and the decision was made by a court which is senior to (or in some cases the same level as) the court hearing the later case
Ratio decidendi
-reason for deciding -creates precedent for judges to follow in future cases -means that accurate law reporting is crucial to the concept of stare decisis
Doctrine of Judicial Precedent
-refers to the source of law where past decisions of judges create law for future judges to follow -known as case law/common law
Disadvantages of using precedent
-rigidity - law can be inflexible and bad past decisions cannot always be put right -complexity - it can be difficult to assess which is the ratio in a past case -distinguishing - enables cases to be separated from each other but it can be like splitting hairs which confuses the law for the future -slow/expensive - few cases go to the SC who has the power to change the law - can take a long time and a lot of money
Should the COA be bound by its own previous decisions?
-rule is that the COA does bind itself -must follow its own previous decisions -however there are three exceptions to this rule in Young v Bristol Aeroplane (1944)
Tools to avoid stare decisis
-sometimes the judge may find that it is inconceivable to follow a decision and may look to find ways that they can avoid a past precedent -this is not always possible but there are some tools that may be available to the judge
Stare decisis
-stand by what has been decided and do not unsettle the established -different concepts that must be followed for stare decisis to work: -ratio decidendi must be known -cases must be reported in an accurate way -court hierarchy must be respected
Use of the Practice Statement in civil cases
-the 1966 practice statement allowed the former HOL to depart from previous decisions if 'right to do so' -did not apply to any other court
Broome v Cassell (1971)
-the COA refused to follow an earlier decision of the HOL
Pepper v Hart (1993)
-the practice statement was used to overrule a previous ban in the case of Davis v Johnson on the use of Hansard for the purpose of statutory interpretation
High court
-three divisions: Family, Chancery and Queen's Bench -courts of first instance but their divisional courts also hear appeals -divisional courts bind the courts below, and each binds itself -bound by ECJ, SC and COA
Should the COA have to follow the SC's decisions? - NO
-very few cases reach the SC and so an error in the law may remain for years -Schorsch Meier and Miliangos illustrate the potential injustice if there is no appeal to the HOL/SC. The similar case of Schorsch Meier was never appealed to the HOL and therefore the COA decision not to follow the senior court remained. Whereas in Miliangos, the case was appealed and the decision was changed.
Judgements
-when a case is heard in one of the senior courts such as the Supreme Court, the judge listens to the evidence and legal arguments -prepares a written decision stating which party wins the case based on what he believes the facts are and how the law applies to those facts -written judgement is usually quite long and will contain comments and discussion about the facts and perhaps some comments and opinion about the law but is not strictly about the case - obiter dicta -explanations about legal principle and how they apply to the case - ratio decidendi - forms binding precedent and must be followed by courts lower in the hierarchy
A dissenting judgement
-when there have been a panel of judges on a previous case, the outcome will be taken from the majority decision -sometimes very sensible are persuasive things are said by the judges who formed the minority decision - called the dissenting judgment -therefore in a future case the HOL/SC may prefer the dissenting judgment and decide the case in the same way
Reversing
-where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case -e.g. COA disagrees with the legal ruling of the High Court and comes to a different view of the law; they reverse the decision made by the High Court
Young v Bristol Aeroplane (1944)
1. Where there are conflicting decisions in past COA cases, the court can choose which it will follow and which it will reject - occurred in Starmark Enterprises v CPL Enterprises (2001) 2. Where there is a SC/HOL decision which effectively overrules a COA decision it must follow SC/HOL - occurred in Family Housing Association v Jones (1990) 3. Where the decision was made per incurium, the the COA does not have to follow its previous decision - means when the previous decision was made without reference to an Act of Parliament or precedent - occurred in Williams v Fawcett (1985) (Rickards v Rickards 1989 said this exception should only be used in rare and exceptional circumstances)