Judicial Precedent


Law 9084

Judicial Precedent

Judicial Precedent


This topic is tested every year in Paper 1; if not, it will be assessed in Paper 2, where you will have to use the cases and match the facts with the current scenario to analyze and back your judgment.

Judicial precedent relates to the source of law in which past judges ' judgments create laws to be followed by future courts. It is also known as the case law. It is both historically and today one of the main sources of law. The judges use these cases to compare the facts of the current case and the previous cases to provide judgments.

The Doctrine of Precedent

The English precedent is based on the Latin principle of stare decisis et non quieta movere (usually simplified to stare decisis).  This means ' stand by what has been decided and don't dispute the existing.' It supports the idea of justice, which upholds the certainty in the law. 

You can remember this as Star e decisis: Stand by what has been decided.

Ratio decidendi

This is the actual and the central part of the judgment. It is binding.

Precedent can only function if the legal explanations behind past decisions are established, so there will be a verdict at the end of a trial. The verdict will have to things: The ratio and the obiter statement. 

The ratio is the law for the verdict, while the obiter will be the reasoning behind it.  In a verdict, the judge is likely to give a review of the ratio of the matter, examine the arguments put forward in the case by the proponents, and then clarify the principles of law that he uses to make the conclusion.

Those principles are the essential factor in the decision and are known as the decision-making rule. They are the foundation of the decision. This is what sets the standard for judges to follow in future cases. Sir Rupert Cross defined the ratio decision endi as any rule explicitly or implicitly regarded by the judge as a necessary step in reaching his conclusion'.

Obiter dicta

These are the other things that a judge might say in a trial. However, they are not as crucial as a ratio. These can be used as persuasive precedent. They are not binding.

The rest of the decision is called obiter dicta ('other things said'), so courts will not have to enforce it in future cases. A judge will sometimes focus on what would have been his opinion if the facts of the case were different.

This hypothetical example is something known as the obiter dicta, and the legal rationale may be seen in future cases. However, it's not a binding precedent, as with all obiter declarations.

A major issue when looking at a previous judgment is to separate the decision-making ratio from the obiter dicta. This is because as the analysis is generally in a continuous form, with no headings defining what is meant to be part of the decision-making ratio and what is not, 


It is also important to note that, based on the number of justices reviewing the case, there may be more than one statement after a trial. There will be only one judge in first-instance trials and thus one decision.

Nonetheless, at least two and generally three judges take cases in the appellate courts (the Divisional Courts, the Court of Appeal, and the Supreme Court). In reality, in the Supreme Court, there must be an odd number of judges in the court, which could be three, five, seven, or even nine.

If there are two or more justices does not indicate that there are always multiple judgments because it is very common for one judge to give the judgment and the other judge/judges merely saying' I agree.' 

Nevertheless, more than one judge may want to clarify his rationale on the issue of situations where there is an especially important or complex point of law. 

For future cases, this may create problems since each judge may have had a myriad of reasons for their judgment.  So there will be more than one decision-making factor, hence, more ratios than one. (The plural of the ratio is rationes.)

Some English phrases are important for understanding the definition of legal precedent as well as studying the Latin phrases ratio decidendi, obiter dicta, and stare decisis.

There should be a majority of judges agreeing on one decision for it to pass. 

Original precedent

When the case comes to the court for the first time, it has never been raised as an issue before. Remember the case of R V R (marital rape), and it is the main case. 

If the point of law has not been determined before in a court, so whatever the judge decides, there will be a new precedent for upcoming, similar cases to adopt, i.e., it is an original precedent. Since there are no previous cases on which the judge may focus his judgment, he is likely to look for situations that are in theory nearest to the case and might continue to use similar rules.

One such case is R V R, where a wife sued her husband for marital rape. While there has been no previous precedent for marital rape, there was an original precedent for it. A case on marital rape has never come to the court earlier. In this case, it was decided that a woman can be raped by her husband, and the husband was considered guilty.

In contrast, this method of making a conclusion is called reasoning.

Many legal experts used to say that the judge simply applies what the rule is (i.e., the statute is always there, but it's the first instance a judge has had to determine which law to apply). 

This perception maintains that judges are not making law; they are simply stating what it has always been. It is now recognized that judges do have a regulatory position in these cases–the judge creates new legislation when a new point has to be determined.

Hunter and others v Canary Wharf Ltd and London Docklands Development Company (1995) can see this idea to create new law by comparison. Part of the decision was whether a broad building's conflict with tv coverage could be an actionable private nuisance. The details of the case were that the first claimant in an industrial field in East London constructed a tower known as the Canary Wharf Tower in 1990.

The tower was about 250 meters high and more than 50 meters high. The plaintiff, and dozens of others trying to sue her, claimed the first defendant's damages for interference over several years in receiving television broadcasts at their East London homes. The tower reportedly induced the damage.

Binding Precedent

It is decided by the higher courts (Vertical hierarchy) or the court of the same level (Horizontal hierarchy), hence, binding on the lower court and the courts of the same hierarchy.

It is the precedent from old cases to be preceded even if the court does not agree with the legal doctrine in the latter case.

Only when the facts of the second case are closely similar to the original case, then it is a binding precedent produced. This means that the decision was taken by a court that is senior to (or, in some cases, the same level) the court hearing the latter case. Hence, the judgment of the higher court is binding upon, the lower courts. 

Persuasive Precedent

Not binding but may be used. Lawyers can use this to argue their cases. If no case of such an issue can be found in the percent of the English Legal system, cases from the USA (Shuey V USA), Australian the other parts of the world can be used. Obiter can also be used as a persuasive precedent.

This is a precedent i.e. not binding on the court. Still, it can be considered and decided by the judge that it is the right principle, so he is convinced that it should be followed. Persuasive precedent, as described below, comes from several sources:

Courts lower in the hierarchy

Such an example can be seen in R v R (1991), where the House of Lords accepted and applied the same logic as the Court of Appeal when it ruled that a man might be guilty of raping his wife.

Rulings of the Judicial Committee of the Privy Council

This committee is not a member of the England and Wales judicial system, and therefore its rulings are not final. Still, since many of its justices are also representatives of the Supreme Court, their opinions are treated with respect and can often be enforced.

The law on the remoteness of damages in the law of torture and the decision taken by the Privy Council in the case of The Wagon Mound (No. 1) (1961) are an example of this. In this scenario, various cases in England and Wales upheld the judgment.

This was seen in A-G for Jersey v Holley (2005) when the majority of the Privy Council (six out of nine judges) decided that a suspect should be measured by the criterion of an individual of ordinary self-control abilities in the protection of aggression. 

This was contradictory to the House of Lords' previous decision. As a consequence, the House of Lords and the Privy Council have made contradictory actions.

Although a Privy Council ruling is not obligatory or binding on English courts, the Court of Appeal supported Holley in R v Mohammed (2005) instead of the House of Lords's judgment. Instead, in R v James; R v Karimi (2006), a five-member Court of Appeal decided that courts in England and Wales will obey the ruling in Holley.

Statements made obiter dicta (particularly where the comment was made in a Supreme Court or previously a House of Lords decision)

This is also seen in the ruling on intimidation as a shield against a criminal charge, where the House of Lords found in R v Howe (1987) that violence could not be a defense against a murder charge. 

The House of Lords has reflected in the judgment as an obiter argument that coercion would not be necessary as a defense to someone convicted of attempted assassination. When a man convicted of attempted murder tried to argue later in R v Gotts (1992) that he could use the protection of duress, Howe's obiter argument was adopted by the Court of Appeal as a persuasive precedent.

A Dissenting Judgment

Where the minority of judges decide something. 

Where a decision has been determined by a majority of judges (for example, 2–1 at the Court of Appeal), his arguments will be clarified by the judge who disagreed.

If that appeal goes to the Supreme Court, or if there is a subsequent case to the Supreme Court on the same issue, the Supreme Court may choose the opposing decision and decide the case in the same way. We were convinced by the opposing opinion to obey it.

Decisions of Courts in Other Countries

This is particularly the case where the other nation is using the same common law concepts as in the UK. It applies to countries of the UK such as Britain, Australia, and New Zealand.

The Hierarchy of the Courts

If you do not know this part of the law, you will not be able to attempt the answers on any chap. You must know the importance of each court, their standing, and how they work to pass the exam or attempt any question.

The courts practice a very strict judicial precedent theory in England and Wales, which has the consequence that:

In the hierarchy, each court must follow any decision i.e. taken by a court above it.

In fact, appellate judges are constrained by their own previous decisions (courts considering appeals).

So the courts ' structure is the next important point to explain.

Remember that the House of Lords was the high court in the British legal system until October 2009. The Supreme Court then dissolved this court and substituted it. The lower courts will obey Supreme Court decisions as well as House of Lords's judgments that the Supreme Court has not modified.

Appellate Courts

Appellate courts are those that hear appeals.

The European Court of Justice

Remember the difference between the European court of justice and the European court of human rights. The European court of justice is BINDING. The European Court of human rights demands the judges to “read the law of UK in line with the European court of human rights after the Human rights act 1998” hence it is not binding, Write this in the paper for extra marks.

The European Court of Justice has been the highest court influencing our legal system since 1973. A decision taken by this court is binding on all other courts in Wales and England in questions of European law. However, there are still rules that are not influenced by EU law, and the Supreme Court is the Supreme Court for these regulations. 

An important feature of the European Court of Justice is that if it thinks it is appropriate, it can overrule its own past decisions. This flexible approach to historical precedents is seen in many European legal systems. It compares with our national courts ' more static approach.

Supreme Court

The Supreme Court is the final Supreme Court, and its judgments are binding on all other courts in the English legal system. Although it will usually obey them, the Supreme Court is not constrained by its own past decisions.

The highest court in the UK. Binding on all. Previously known as HOL.

Court of Appeal

A step down in the hierarchy is the Court of Appeal, which has two divisions: Civil and Criminal.  The Court of Appeal's two branches is required to agree with the rulings of the European Court of Justice and the Supreme Court.

However, they generally have to obey their own past decisions. Although, there are some specific exceptions to this rule, and the Court of Appeal (Criminal Division) is more accommodating when the issue involves the subject's rights.

Divisional Courts

The three Divisional Courts (Queen's Bench, Chancery and Family) are bound by the European Court of Justice, Supreme Court and Court of Appeal decisions. 

Furthermore, the Divisional Courts are bound by their own previous decisions, even though they function similar exemptions to the Court of Appeal's ones.

Courts of the First Instance

The word ' courts of first-instance' includes any court where a jury is heard at the original trial. Few first cases are considered by the appellate courts. 

We are only concerned with lawsuits from other court decisions. Quite often, a point of law is going to be an appeal.

It requires the courts of appeal to determine the rules, and that is why the courts of appeal are much more relevant than first-instance courts when it comes to setting precedent.

First-instance courts seldom set a precedent. They have to follow the decisions of the court mentioned above. 

The High Court

This is bound by all the above courts ' rulings and binds the lower courts in effect. Judges of the High Court do not have to obey the rulings of each other. However, they typically do so. In Colchester Estates (Cardiff) v Carlton Industries plc (1984), it was established that two older rulings were in dispute; instead, given that the first ruling in the latter case had been fully considered, the latter judgment should be adopted.

Inferior Courts

These are the Crown Court, the County Court, and the Magistrates court. Courts are obliged to follow all higher courts ' rulings, and a lower court's decision would rarely create a precedent. 

The one exception to this is technical precedent for the Magistrates ' Court is created by a legal ruling on the point of law in the Crown Court. Nevertheless, this is of no practical effect as such decisions are rarely reported in the law books.

The Supreme Court

The Supreme Court's main debate (previously the House of Lords) is the degree to which it can obey its own past decisions, and the views on it have evolved over time. The initial claim was that the House of Lords was able to overturn past decisions. 

Still, this more flexible approach slowly vanished during the 19th century. By the end of that century, the House of Lords ruled in London Street Tramways v London County Council (1898) that certainty in the law was more essential than the risk of individual hardships being incurred at having to follow precedent. 

From 1898 to 1966, however, the House of Lords found it to be absolutely bound by its own previous decisions unless it had made the decision per incurium, that is' in mistake.'

The definition of wrongdoing, though, applied only to cases where a decision was made without taking into account the influence of a relevant statute.

This was not considered to be acceptable because the legislation was unable to change to meet changing social circumstances and views, nor could the courts alter the future' false' rulings. If the House of Lords ' judgment became inadequate, then the only way to change it was by Parliament introducing a new Parliament Act.

It occurred as an aspect of a criminal offense in the law of intention. The House of Lords in DPP v Smith (1961) found that if a reasonable person expected that death or very serious injury could arise from the conduct of the perpetrator, an accused could be guilty of murder.

This decision was criticized because it meant that the accused could be guilty even if he didn't intend to cause injury or death, nor did he realize that his behavior could have that effect. Finally, after adopting the Criminal Justice Act 1967, Parliament changed the law.

The Practice Statement

The law was becoming rigid and outdated, so the judges decided they can now depart from the previous judgment. This was only allowed to the SC.

It was known that there should be more discretion in the ultimate Court of Appeal (then the House of Lords). 

The crucial date for today's legal precedent structure was 1966 when the Lord Chancellor released a statement of Procedure proposing a reform in the London Street Tramways v County Council statute.

The Practice Statement said:' their lordships see the use of precedent as an indispensable basis for deciding what the law is and applying it to individual cases. It gives at least some level of certainty that people can rely on when conducting their affairs, as well as a foundation for the equitable advancement of legal rules.

"However, their lordships understand that strict adherence to the precedent in a specific case will contribute to discrimination as well as unduly hinder the law's proper development. We also propose to change their current practice and, though considering this House's former resolutions as usually binding, to deviate from a previous decision when it seems appropriate to do so.

In this regard, they should bear in mind the danger of retrospectively upsetting the grounds on which contracts, land acquisition, and tax agreements were signed, as well as the particular need for clarity as to criminal law. 

This statement is not intended to impact the use of precedence anywhere other than in this House”

The practice statement is the major chunk of analysis. 2/3 of your discussion on SC should be about the practice statement. Write about its pros and cons and if it was a good decision.

Use of the Practice Statement

Note: The practice statement is used mostly in civil cases and not the criminal cases, that is because the courts made it clear that certainty in criminal law is the most important. 

This Practice Statement had enabled the House of Lords to amend the law since 1966 when it considered a prior case was wrongly decided. 

It had the freedom to refuse to comply with a previous case because' it seemed right to do that.' For example, this term is very ambiguous and offered no clarity as to when a prior ruling could be overruled by the House of Lords. 

In general, the House of Lords, particularly in the first few years after 1966, was reluctant to use this control. Conway v Rimmer (1968) was the first instance in which the Procedure Notice was used, but this covered only a technical point about evidence disclosure.

It was not until 1972 that the first significant use took place in Herrington v British Railways Board (1972), which implicated the law on the duty of care due to a child trespasser.

Addie v Dumbreck's (1929) had determined that a landowner would only owe a child trespasser a duty to care for injury issues if those injuries were intentionally or negligently caused. 

The Lords ruled in Herrington that social and physical circumstances have improved after 1929, and the legislation was also supposed to change.

The House of Lords continued to be very reluctant to be using the Practice Statement, as the case of Jones v. Secretary of State for Social Services (1972) shows. 

This case involved the understanding of the 1946 National Insurance (Industrial Injuries) Act and four of the seven judges reviewing the case considered that the earlier Re Dowling (1967) decision was wrong. Notwithstanding this, the Lords declined to overrule the earlier case, continuing to stick to the principle that consistency was the precedent's most important feature. 

Knuller v DPP (1973) demonstrated the same mentality as Lord Reid said:

“Our reform in procedure in not finding this House's previous decisions as strictly binding does not mean that we should always revoke it whenever we expect that a previous ruling was false. We must be confident that there is some really good reason in the general interest of consistency in the law before we behave like that.”

From the mid-1970s onwards, the House of Lords showed a little more willing to make use of the Practice Statement. 

For example, in Miliangos v George Frank (Textiles) Ltd (1976), the House of Lords used the Practice Statement to overrule a previous judgment that damages could be awarded only in sterling. 

More recently, in Murphy v Brentwood District Council (1990), the House of Lords overruled the decision in Anns v Merton London Borough (1977) regarding the test for negligence in the law of tort. 

Another major case was Pepper v Hart (1993), where the previous ban on the use of Hansard in statutory interpretation was overruled.

The House of Lords used the Practice Statement in Horton v Sadler and another (2006) to depart from its own previous decision. 

The case involved a lawsuit for personal injury, but the point of law to be determined was the right to require out - of-time operation under s 33 of the 1980 Limitation Act. The House of Lords in Walkley v Precision Forgings Ltd (1979) differed from their ruling.

The Law Lords departed from Walkley for three reasons:
It deprived the claimants in an unfair way of a right that Parliament had intended them to have.

It had driven the Court of Appeal to draw distinctions that were correct but were so fine as to reflect no credit on the area of law.

It clearly went against the Parliament’s intention.

During his address, Lord Bingham considered the issue of moving away from a previous decision. He found out that the situation was not one where leases, land agreements, or contractual deals had been signed, nor did it include criminal law where clarity was of particular importance. Furthermore, by breaking from the previous decision, there would be no downside to public administration.

The Practice Statement in Criminal Law

The Procedure Statement emphasized the need for consistency in criminal law, so it was not shocking that the House of Lords did not rush to overturn certain criminal decisions. In R v Shivpuri (1986), which overruled the Anderton v Ryan (1985) ruling on efforts to do the unthinkable, the first use in a criminal case was. The interesting point was that the Anderton decision had been made less than a year ago, but research lawyers had strongly criticized it. Lord Bridge said in the case of Shivpuri:

I'm undeterred by the reality that the ruling was so new in Anderton v Ryan. The Declaration of Practice is an intentional abandoning of our claim of infallibility.

If the rule has been skewed by a serious error reflected in this House's ruling, the quicker it is fixed, the greater.' In other terms, the House of Lords admitted that they might often make mistakes. Then the most important thing was to amend the legislation.

Where a prior ruling is overruled by the Procedure Notice, the specific situation is effectively ignored. The law is now the one set out in the new case.

R v R and G (2003) was also a major case concerning the use of the Practice Statement. The House of Lords used the Procedure Statement in this instance to overrule Caldwell's earlier (1982) ruling on the regulation of criminal damage.

The House of Lords also found in Caldwell that recklessness included the case where the convict did not realize the danger of his conduct causing damage. 

Still, there was a possibility that an average conscientious individual would have known. It was considered that this was the wrong test to use in R v R and G.

Caldwell was overruled by the Law Lords, who argued that an offender is reckless even because he recognizes that there is a chance of injury and goes on and ignores the danger.

This case shows the House of Lords to be able to use the Code of Procedure when they felt it was ' appropriate to do so. '

The Supreme Court

With the transition from the House of Lords to the Supreme Court in October 2009, the Practice statement does not refer only to the Supreme Court, so it is not certain if this court will use the Statement of Practice. 

Nevertheless, the Supreme Court's Procedure Rules state that' if an applicant for approval to appeal requires the Supreme Court to differ from one of its own rulings or from one of the House of Lords', this should be clearly stated in the request and full details should be provided.

It means that, under the Procedure Declaration, the Supreme Court must run a similar system to that.

Even though SC can use Practice Statement, they have been very reluctant. 

The Court of Appeal

As has already been mentioned, this court has two sections, the Civil Division and the Criminal Division, and the precedent laws in these two courts are not quite the same.

COA can’t use PS. 

Decisions of Courts Above It

The Court of Appeal's two branches is governed by rulings of the European Court of Justice and the Supreme Court. 

This is so while attempts have been made in the past, particularly by Lord Denning, to claim that the House of Lords (now the Supreme Court) should not warrant the Court of Appeal.

In Broome v Cassell & Co Ltd (1971), Lord Denning declined to follow the House of Lords ' earlier decision in Rookes v Barnard (1964) as to the conditions under which exemplary damages could be granted.

Once, in the cases of Schorsch Meier GmbH v Henning (1975) and Miliangos v George Frank (Textiles) Ltd (1976), the Court of Appeal disobeyed a ruling of the House of Lords in Havana Railways (1961) holding that only sterling (English money) could be awarded damages.

Lord Denning's reasoning for refusing to obey the House of Lords's judgment was that the global economic climate had shifted and that sterling was no longer a stable currency; there were circumstances where justice could only be done by awarding damages in a different currency.

Schorsch Meier GmbH v Henning's argument was not taken before the House of Lords, but Miliangos v George Frank (Textiles) Ltd appealed to the Commons, finding out that the Court of Appeal had no ability to ignore or overrule the House of Lords ' judgments. Miliangos's most remarkable aspect was that the House of Lords then used the Declaration of Procedure to circumvent its own Havana Railways ruling.

Should the Court of Appeal have to follow Supreme Court/House of Lords decisions?

Use this part for the analysis in your answer. 

The biggest argument in favor of the Court of Appeal being able to ignore the judgments of the Supreme Court / House of Lords is that very few appeals hit the Supreme Court, so that if there is a mistake in the legislation, it may take years before an acceptable case is brought before the Supreme Court. 

Schorsch Meier and Miliangos ' proceedings demonstrate the possibility for discrimination if the Supreme Court / House of Lords does not have an appeal.

What would have changed if the Schorsch Meier Court of Appeal had decided to follow the Havana Railways ruling of the House of Lords?

Discuss this in your answer for an A grade. 

It is quite likely that Miliangos ' subsequent appeal may not even have been taken before the Court of Appeal. After all, why waste any money on an appeal when previous cases have been ruled on that point of law in both the Court of Appeal and the House of Lords? The rule would have been deemed set, and it could have never been modified.

On the other side, if the Supreme Court / House of Lords could be overruled by the Court of Appeal, the legal structure would break down, and the legislation would become unclear. With lower courts to choose from, there would be two contradictory precedents. This would make it hard for the lower court prosecutor.

It would also make the law so uncertain that counseling clients on the law would be difficult for lawyers. 

Since the Miliangos judgment, though, there has been no further opposition by the Court of Appeal to this fundamental idea (in our legal precedent system) that in the order lower courts will obey court decisions above them.

Lord Denning tried a lot to not follow the decisions of the SC. Nevertheless, the Supreme Court told, “it is not up to the COA to guide the lower courts in not following the decisions of the supreme court, they are bound to follow the rulings of the SC.” Lord Denning had believed that most cases do not even go to the SC, and hence the COA should be given the power to use the PS.

Human Rights Cases

Human rights disputes are one area of law where the Court of Appeal does not need to obey the House of Lords / Supreme Court decisions. Section 2(1)(a) of the 1998 Human Rights Act specifies that any verdict or ruling of the European Court of Human Rights must be taken into account by the courts. In the case of Re Medicaments (No 2), Director-General of Fair Trading v Great Britain's Proprietary Association (2001), the Court of Appeal refused to follow the ruling of the House of Lords in R v Gough (1993) because it varied significantly from the European Court of Human Rights rulings.

The situation of the Director-General was about whether a recommendation should be set aside because of one of the panel's possibility of prejudice.

For Gough, the prejudice check included the Court of Appeal, determining if there was a real danger that the Court would be biased. 

The Court of Appeal noted that the focus in the cases of the European Court of Human Rights was on the reasonable interpretation that the evidence might offer. The Gough tests was a ' modest change.' However, this appears to be one situation where a Supreme Court / House of Lords' decision does not need to be followed by the Court of Appeal.

The Court of Appeal and Its Own Decisions

The first concept is that rulings will not attach the other branch with one section of the Court of Appeal. Nevertheless, decisions are generally binding within each branch, particularly for the Civil Branch. The rule comes from the Young v Bristol Aeroplane Co Ltd (1944) case and the only variations permitted are:

Where in previous Court of Appeal cases there are contradictory opinions, the Court can choose which one to obey and which one to ignore.

Where there is a House of Lords (now Supreme Court) decision that effectively overrules a decision of the Court of Appeal, the Court of Appeal must follow the House of Lords / Supreme Court's decision.

Where the incurium decision was made, that is, carelessly or by accident because the Court did not consider valid statutory legislation or another rule.

The Court of Appeal's Civil Division under Lord Denning tried to challenge the provision in the case of Young, saying it could modify it because it had taken the earlier decision. As Lord Denning said in Gallie v Lee (1969):' It was a self-imposed restriction and us who made it can also abolish it.' This perspective was not held by the other judges in the Court of Appeal, as is shown by Russell LJ's comment in the same Gallie v Lee case where he said:' The House of Lords ' willingness to correct mistakes in the Court of Appeal renders it, in my judgment, redundant for the Court of Appeal.

In Davis v Johnson (1979), however, the Court of Appeal failed to obey a ruling on the reading of the 1976 Domestic Abuse and Matrimonial Courts Act issued only days earlier. 

The matter was taken to the House of Lords on appeal where, while struggling with the particular understanding of the law, the Statute Lords found that the Court of Appeal needed to obey their own prior rulings and claimed that they 'reaffirmed the regulation in Young v Bristol Aeroplane explicitly, firmly and unanimously.'

Since this case, and perhaps more importantly, after Lord Denning's retirement in Young's case, the Court of Appeal has not contested the law, although it has made some use of the per incurium exemption permitted by Young's case.

Per Incurium

By mistake/ error 

In Williams’s v Fawcett (1986), the Court refused to follow its own previous decisions because they were founded on a misconception of the laws of the County Court governing the process for sending anyone violating court undertakings to prison. 

The Court refused to follow a ruling that it had resolved in 1981 in Rickards v Rickards (1989). This was because the consequence of a House of Lords ruling had been overlooked in the previous case.

Although the Court did not follow its own previous decision, Lord Donaldson said that it would be reasonable for the Court of Appeal to refuse to follow a previous decision only in' rare and exceptional cases.' Rickards v Rickards was known as a' rare and unusual' case because the dispute occurred over whether the Court had the jurisdiction to consider the specific type of case. It was also very difficult to challenge the issue to the House of Lords.

The Court of Appeal seems to have expanded the reach of the per incurium exception in R v Cooper (2011). The limited or conventional interpretation of per incurium is that it is used only where the applicable legal regulations and/or case authority have not been taken into account by the earlier trial. R v Cooper included the Crown Court case where a person accused of a sexual offense was barred from working with children or vulnerable adults.

Under the Safeguarding Vulnerable Groups Act 2006, a new system was introduced, and it was not clear what procedure to follow. 

On the grounds that not all the relevant issues had been brought before the earlier trial, the Court of Appeal overruled an earlier decision on its own. This seems to be larger than failing to take the relevant legislation and proceedings into consideration.

The Court of Appeal (Criminal Division)

As well as using the provisions from the case of Young, the Criminal Division may also refuse to follow its own previous ruling if the statute is' misapplied or mistaken.' An additional provision exists because the protection of citizens becomes involved in criminal proceedings. In R v Taylor (1950), this concept was acknowledged.

R v Gould (1968) made the same point. Furthermore, in R v Spencer (1985), the judges claimed that there should usually be no difference in the way in which the case was applied in the Criminal Division and in the Civil Division,' except that we should note that we may be grappling with the independence of the issue and that, if a divergence from jurisdiction is appropriate in the interests of justice for an applicant, the Court should not be retreating from its decisions.

In R v Simpson (2003), a jury of five judges, the Court of Appeal (Criminal Division), overruled an earlier decision reached by a court of three judges on the basis that the statute was confused or misapplied. The case argued that a five-judge majority of the judiciary has the discretion to decide that a prior Court of Appeal (Criminal Division) ruling should not be viewed as binding. This added to the belief that a panel of five judges always had the right to deviate from a panel of three judges ' earlier decisions.

Nevertheless, the Court of Appeal itself found out in R v Magro (2010) that Simpson had not reserved them the privilege to bypass a tribunal of three judges where that decision was made following the complete debate and thorough review of the applicable constitutional requirements.

The previous situation, in fact, should not be overruled when the effects of doing so would be to the defendant's detriment.

The Judicial Committee of the Privy Council

The Privy Council's Judicial Committee handles complaints from some Commonwealth countries and areas like the Channel Islands, lower courts will obey court decisions above them.'


However, where the case is particularly important, there may be more judges on the panel.

The Privy Council and Precedent

The Privy Council's Judicial Committee is not part of English law, and its rulings are not binding on English courts. His decisions, however, are persuasive precedents, which courts may decide to follow in England and Wales.

Typically the Privy Council Judicial Committee must obey the Supreme Court (and formerly the House of Lords) rulings. The exception to this is that in the nation from which the challenge originated, the point of law developed differently. 

In such a circumstance, the court is not bound by judgments of the Supreme Court and may decide to follow the countries laws.

An unusual case was A-G for Jersey v Holley (2005), which was Jersey's challenge on the rule of retaliation (a specific conditional remedy against killing). The extra-large jury of nine judges was used to decide the case, all of whom were themselves, law lords.

We refused to follow an earlier decision of the House of Lords in R v Smith (Morgan James) (2000) by a vote of six to three judges. However, the rule in Jersey was the same as in England. The majority of judges actually said that Smith's decision was wrong.

It created problems because, in a later case, the same question of fact was put before the Court of Appeal (Criminal Division).

Should the Court of Appeal adopt Smith's ruling of the House of Lords, or should it obey Holley's judgment of the Privy Council? 

The Court of Appeal will usually be constrained by any House of Lords ruling. The Court of Appeal, though, made the unprecedented decision to follow the Privy Council judgment rather than the House of Lords’ rule.

This was mostly because six House of Lords judges made the decision in Holley, even though the Privy Council was actually dealing with the issue.

Distinguishing, Overruling and Reversing


This is a technique that a judge can use to stop implementing a previous decision that he would otherwise have to obey. 

This ensures the judge finds that the underlying facts of the case he determines are sufficiently different to differentiate between the present case and the previous case. He is then not constrained by the situation before him.

Balfour v Balfour (1919) and Merritt v Merritt (1971) are two cases that illustrate this method. A lady filed a lawsuit against her spouse for breach of contract in both situations. It was determined in Balfour that the lawsuit could not prevail because there was no attempt to develop civil relationships; there was only a marital partnership between a husband and wife, so there was no legally binding contract. 

The second case was successful because the court found the circumstances of the two situations to be sufficiently different in that, although the plaintiffs were husband and wife, the agreement was reached after they had divorced.

Besides, the agreement was made in writing. It separated the situation from Balfour; the Merritt deal was not only a territorial agreement but also a legally enforceable contract.

Balfour and Meritt are cases that are applied at many places. Remember them.


This is wherein a later case, a judge claims that in an earlier case, it is incorrect to determine the legal rule. Overruling may arise when a higher court overrules a decision taken by a lower court in an earlier case, such as the Supreme Court overruling the Court of Appeal's decision

. It can also arise when the European Court of Justice overrules a ruling it has made in the past; or when the House of Lords has used its authority under the Code of Procedure to overrule its own judgment in the past.

An indication of this was seen in Pepper v Hart (1993) when the House of Lords decided that it was possible to use Hansard (the archive of what is said in Parliament) while trying to decide what certain terms in Parliament's Act represented. This ruling overruled Davis v Johnson's earlier decision (1979) when the House of Lords decided that it could not review Hansard.


This is where a higher court in the system in the same situation overturns a lower court's decision on appeal. The Court of Appeal, for instance, may interfere with the High Court's legal ruling and come to a different view of the law; it overturns the High Court's decision in this case.

Judicial Law-Making

While there used to be a line of thought whereby judges did not, in fact,' construct' new law, but simply declared what the rule had always been, it is well known today that judges utilize precedent to create new laws and expand old concepts. There are several aspects of the law that trace their origins to the judges ' decisions.

Law of Contract

Basically, all of the main rules regulating contract creation derive from case-specific cases. In the 19th century, many of the decisions were made, but today they also influence the rule.

Tort of Negligence

The major area that has been established and perfected through judicial decisions is the rule of responsibility in tort law. A significant starting point in this area of law was the case of Donoghue v Stevenson (1932), where the House of Lords established what is regarded as the' neighbor check' when it recognizes that a producer owes a duty of care to the' absolute customer.' In his decision on the issue, Lord Atkin said:' You will take reasonable care to avoid actions or omissions that are likely to injure your neighbor you may fairly predict.'

This definition has been used in several different situations by courts, so the abuse of incompetence has become huge torture. An important expansion was in the case of Ogwo v Taylor (1987), where it was established that a man who negligently started a fire in his roof trying to burn paint with a blowtorch owes a duty of care to a fireman who was burned trying to put out the fire.

Major developments have also arisen in case of law regarding responsibility for emotional shock where damage has happened. In the case of South Yorkshire's Alcock v Chief Constable (1991), which included claims made by people who had lost families in the Hillsborough incident, the House of Lords established the rules for this area of law.

Criminal Law

The judges played a major role in the creation of the rule on motive in criminal law. E.g., the intention to kill includes not only the intention to kill but also the attempt to inflict grievous bodily harm only because of judicial decisions. 

Judicial decisions had also created new offenses successfully, as in Shaw v DPP (1962), which produced the felony of fraud to corrupt public morality, and R v R (1991), when it was determined that adultery in marriage could be an offense.

There have been cases, however, in which the House of Lords refused to change the law, saying that only Parliament should make such a change. It occurred in C v DPP (1995) when it failed to remove the assumption that children aged 10 to 14 were unable to have the requisite intention of committing a crime. 

(This rule implied that there must always be proof that the kid realized he or she was doing something that was seriously wrong.) In addition, in the Crime and Disorder Act 1998, the legislation changed the law further.

Should Judges Make Law?

This part is very important for analyses. Do not miss out on the pros and cons. 

It is claimed that making law is inappropriate for judges. Their job is to put the rule into practice. It is Parliament's responsibility to make the rule. Parliament has selected to do this, but it is not the jury. This suggests that it is undemocratic to make laws by judges.

But in fact, in some cases, judges have to make law. The first is where a case involves an outstanding legal point. Since there is no law on it, a decision must be made by the judge in the case.

The stakeholders in the lawsuit would not, after all, want the judge to hesitate to handle the case; they want the question to be resolved.

The second aspect is a little more complex. This is where judges overrule old cases to create new rules in this manner. In this way, it is necessary to amend the legislation. The 21st-century legislation must be focused on the culture and beliefs of today. 

Law passed a hundred years ago, or more may no longer be appropriate. Ideally, Parliament will amend the legislation, but there are periods that Parliament is unable to do so. When courts have never overruled old cases, the statute may be' outdated.'

The case of R v R (1991) is an example of this. A man has been charged with raping his wife in this situation. The argument the court had to determine was whether a wife consented to sex with her spouse simply by being married and could never say' no.' The old law dated back to 1736, where it was said that' the wife gave herself up to her spouse through their mutual consent to marriage, which she could not revoke.' In other terms, a woman was always believed to agree while married and was unable to object to this. In R v Miller (1954), this was still considered to be the rule, even though the plaintiff had already begun divorce proceedings.

This law had not been amended by the Parliament. Therefore, when the R v R case was brought before the judiciary, the judges had to determine whether to follow the old rule, or whether to change the law to suit the late 20th century concepts. 

The judges in the House of Lords found out that' women's position and married woman's role in our legislation has shifted quite drastically.

A husband and wife are also joint partners in marriage for all practical purposes.' As a result, if a woman does not agree to sex, her spouse would be accused of rape. 

The House of Lords claimed that the common law "is worthy of adapting in the face of increasing social, economic, and cultural developments." This clearly recognized that, if they thought it necessary, judges in the House of Lords could change the law. 

The same power now applies to the Supreme Court.

The Effect of an Act of Parliament

In the UK, the parliament is sovereign and no one should dare messing with it. Remember: Parliament > Anything.

Although judges can and do make law, the decision is subject to statutory law, discretionary laws, and Eu regulations. 

This means that if (for example) a Parliament Act is passed and that Act contains a provision that contradicts a case that has been decided before, that case decision will cease to have effect; Parliament's Act is now the law on that point. 

This happened in 1996 when Parliament passed the Law Reform Act (Year and a Day Rule). 

Court rulings up to that point indicated that a person could only be charged with murder or suicide if the victim died within one year and one day of sustaining his injuries.

The law enacted that there was no time limit, and even if the victim died many years later, an individual could be convicted, and lawsuits follow the law since 1996 and not the old court decisions.

Comparison with Other Legal Systems

Codes of Law

Many jurisdictions have a method of reviewing prior court rulings, but they are not as strict as the England and Wales legal precedent framework. Precedent plays a much less important part in countries that have a code of law. 

This legal system operates in many European countries; the judges are less likely to make legislation, the code should provide for certain cases, and therefore the role of the judge is to read the code.

Since the code is the basis of the statute, it is not so closely followed by judicial decisions. Even lower court judges can refuse to follow another court's decision if they believe the code has not been properly interpreted.

Less Rigid Precedent

Analysis: Talk about what courts are rigid, pros and cons of the rigidness.

Even in other nations with a common law system close to that of Britain, where case rulings are a significant part of the law, the precedent theory is not so narrowly applicable.

For instance, in the United States of America, if it does not comply with scholarly support, a prior ruling is likely to be ignored: if there is significant disapproval of the judgment from leading academic attorneys, judges are likely to take notice of that opposition and rule accordingly in later cases.

In the case of R v Shivpuri (1986), this has occurred throughout Britain, but this is a rare occurrence, while it happens more often in America.

In America as well, situations in which the court's council differed (so that the ruling could have been taken by three or two jurors) are likely to be overruled in the future. In England, it doesn't make the rule less important because the majority was less. 

Prospective Overruling

The other distinction is that the prospective overruling method is used in Europe. In the situation being resolved by the judge, that means that the rule is not modified, but it is updated for the future.  

The courts are unable to do this in England; once a ruling changes the law, it will shift in the actual case. This was defined as' dog's rule;' that is, you don't realize that you've done wrong until the court changes the law in your situation, just as a dog doesn't think it's done wrong before you discipline it.

This is what took place when it was decided in the case of R v R (1991) that rape within marriage could be a crime. 

Prior decisions had held that this was not a crime until that case. In a case, this can be considered unfair to the parties. In such situations, it is better to use prospective American overruling.

Advantages and Disadvantages

of Precedent

As shown in the previous sections, the way in which the judicial precedent operates in England and Wales has both advantages and disadvantages. It could actually be said that there is a correlating disadvantage to each advantage.


The main advantages are:

1. Certainty
Because the courts obey past decisions, individuals know what the law is and how it is going to be enforced in their case; it helps attorneys to advise clients on the likely outcome of cases; it also enables people to run a business knowing that the law recognizes the financial and other agreements they make. The House of Lords' Declaration of Procedure referred to the value of confirmation.

2. Consistency and fairness in the law
It is considered fair, and just that similar cases should be resolved in a similar manner, just as it is considered fair in any sport that the rules of the game apply equally to each hand.

3. Precision
The rule becomes very specific as the rules of law are laid out in actual cases; it is well explained and slowly builds up in the cases that come before the courts through the numerous combinations of evidence

4. Flexibility
As the Supreme Court can use the Procedure Statement to overrule proceedings, there is scope for the rules to alter. The right to distinguish cases, therefore, provides more flexibility to all courts to escape past decisions and improve the rule.

5. Time-saving
Precedent, a valuable time-saving tool can be called. Where theory is developed, it is doubtful that lawsuits with identical evidence will go through the long court phase.

The main advantages have been summed up very neatly as follows:
Security, accuracy, and durability are said to be the key advantages of the preceding method.

Constitutional clarity is achieved, at least in theory, in that the judge is obliged to follow the remedy if the legal issue posed has been addressed previously. 

The sheer volume of reported cases providing approaches to endless objective problems ensures accuracy. No code or law can ever include the same number.

Flexibility is accomplished through the possibility of overruling decisions and the possibility of separating and restricting the process of unsound decisions.'


However, there are disadvantages as follows:

1. Rigidity
The idea that higher court judgments have to be upheld by lower courts, along with the reality that the Court of Appeal has to obey its own past decisions, will make the law more inflexible to uphold the wrong decisions made in the past. 

There is the added problem that the Supreme Court will have so few instances. The law will change only if the plaintiffs have the bravery, patience, and energy to challenge their lawsuit.

2. Complexity
Since there are almost half a million reported cases, even with computerized repositories, it is not easy to find all relevant case law. Another thing is the decisions themselves, which are often very long without any clear distinction between the opinions and the reasoning for the opinion.

In some cases, this makes it difficult to determine the decision-making formula; however, for Dodd's Case (1973), the Court of Appeal judges said they could not consider the ratio in a House of Lords ruling.

3. Illogical distinctions
Using differentiating to avoid past decisions can result in ' hair-splitting ' so that some areas of law have become very complex. There may be very small differences between some situations, and it may seem illogical.

4. Slowness of growth
Judges are well convinced that certain areas of law are unclear or need to be reformed; however, they can not make a decision unless a case has to be decided before the courts. This is one of the criticisms of the Court of Appeal's need to follow its own previous decisions, as only about 50 cases go annually to the Supreme Court. There may be a long wait for an appropriate case to be brought before the Supreme Court as far as it is concerned.

This part is what will give you high marks, the more you discuss all these advantages and disadvantages, and relate it to each court, the better you will score. If you say that rigidness leads to outdated laws, counter it by saying; however, it upholds certainty in the law.

Law reporting

There must be an accurate record of what those judgments were in order to follow past decisions. Written reports have been around since the 13th century in England and Wales, but many of the early reports were very short and not always reliable, it is believed.

The first publications were named Year Books from about 1275 to 1535 and included brief accounts of events, usually written in French. Individuals who did business out of supplying the papers to attorneys were recording lawsuits from 1535 to 1865. Such findings varied greatly in scope and precision. Some are still sometimes used today, though.

The Incorporated Law Reporting Council was founded in 1865–this was governed by the courts. Reports were reliable, and word for word, the decision is generally observed. 

This study consistency was one of the considerations in the establishment of the precedent's strict doctrine. 

Such records are still in force and are released by the trial in which the case took place. For, e.g., case comparisons abbreviated to' Ch' stands for' Chancery,' and the dispute in the Chancery Division will have been decided; while' QB' stands for' Queen's Bench Division.'

Other well-established publications are also available today, including the All England sequence (abbreviated to All ER) and the Weekly Law Publications (WLR). Magazines and magazines often print court reviews, but these are often abbreviated copies in which the legal writer sought to collect the essential parts of the decision.

Internet Law Reports

All cases concerning the High Court, the Court of Appeal, and the Supreme Court are now reported on the Internet. Some websites provide the full report free of charge; others provide summaries or a case index. There are also subscription sites that provide a very comprehensive law reporting service.

This is one of the most important and rewarding chapters of all. If you get a strong foundation in this chapter, you can ace almost every chapter. For the cases, you are supposed to remember 2 cases with brief facts and 1 or 2 cases by their names. Writer 2 case facts briefly and mention 2 cases in the bracket. Judgments are not important, but they get you extra marks. Dates are not important, but they help you stand out. If you don’t remember cases full name, just write “Dodds case, Shivpuri case, etc.” Whenever you make a statement, for example, COA wanted to have the PS, in brackets write (Young v bristol). The intro of your answer should explain what you are going to discuss for example “The question statement calls for a discussion on the question “explain the question” “write the topics you are discussing e,g working of COA, HOL, SC, etc.” write a case for each of these courts in front of it  and at the end discuss “lastly it will be discussed “ whatever the Question is asking, name it.”

© 2019-2022 O’Level Academy. All Rights Reserved