Doctrine of Precedent

1. Doctrine of Precedent

2. Key Questions • What is precedent? (stare decisis) • Why have it? • How does it work, i.e “who binds who” and “when”? • What does ratio decidendi mean? And obiter dictum? • How does European law impact upon the rules of precedent?

3. What is the doctrine of precedent? • Often called the Doctrine ofStare Decisis • Literally means…’stand by things that have been decided’ • Put simply – courts in the UK are bound by the decisions of earlier courts on similar issues unless they can be ‘distinguished’.

4. Why have it? • Not all systems have this – characteristic of common law jurisdictions where judgments are a major source of legal principle • Designed to ensure consistency and legal certainty • Reflects our hierarchical court structure – lower courts more constrained than superior courts

5. How does it work? • Basic rule is that precedents created by a higher court bind lower courts • House of Lords decisions therefore bind all lower courts • Does the House of Lords bind itself? • Yes; but see also the [1966] Practice Direction • Benefits and problems

6. Application of the doctrine to the Court of Appeal • Court of Appeal is bound by House of Lords • But what if the HL decision is per incuriam? • In general the CA is also bound by previous CA decisions… EXCEPT: • Conflicting judgments • Previous decision overruled by HL • Per incuriam decisions • EWCA judgments in NI and visa-versa (persuasive)

7. A closer look at how the doctrine works in practice….. • Courts are only bound by the previous decision in similar cases unless they can be distinguished or are per incuriam. • Must identify the binding part of the earlier decision & assess whether the two cases are in fact similar.

8. Identifying the Binding ‘Decision’ • When we talk about courts being bound by previous precedent – they are bound only by the ratio decidendi of the previous decision. • RD of a case can be defined as the material facts and the decision thereon. In other words, it is the core reason for the decision. • Defining the concept of a ratio in abstract terms is easy(ish), locating it in a specific case can be another matter! • This process is a key legal skill and takes years to refine – it will be fundamental to the success of your legal studies

9. The concept of ‘obiter dictum’ • Obiter Dictum is regarded as something said “by the way” but is not central to the core legal reasoning (i.e., the ratio) that determines the case. • Obiter usually arises in course of lengthy judgments • That part of the judgment deemed to be ‘obiter’ does not bind subsequent courts – the doctrine of precedent only applies to the ratio.

10. Problem of divergent judicial opinions…. • Finding the ratio can become much more complex when dealing with decisions of senior courts where each judge delivers a separate decision…. • ‘Majority’ and ‘dissenting’ decisions • Majority may agree on the decision but for different reasons

11. Can the earlier case be ‘distinguished’? • Doctrine of precedent only binds a court where the material facts are similar to an earlier case. • If the material facts of the previous case can be ‘distinguished’ then its ratio will not bind the later court.

12. UK Precedent and EU law • EU law enjoys primacy over domestic law • The HL must therefore depart from inconsistent UK precedents in order to give effect to EU law (see, e.g., R v Secretary of State for Transport, ex p Factortame [1991] 1 AC 603) • Lower courts are also able to depart from the rule of precedent where a previous UK court’s decision is at odds with a decision of ECJ ruling or EU legislation.

13. The impact of the Human Rights Act 1998 • Domestic precedents must yield to conflicting human rights requirements when the case is heard in the court that established the precedent: see, e.g., Ghaidan v Godin-Mendoza [2004] 3 All ER 411 • But what if the issue arises in a “lower” court?: Lambeth LBC v Kay; Leeds CC v Price [2006] 4 All ER 128 – lower court should follow precedent of higher court save in extreme circumstances

14. Concluding comments… • Understanding the legal ‘weight’ of a precedent or decision • Mastering the skills of reading judgments!

15. Take a break…

16. A precedent case study • Negligence • Hill v Chief Constable of West Yorkshire [1989] AC 53 • How it was subsequently followed • What European law said • How the precedent has survived

17. What is negligence? • Tort law • Duty of care; breach; causation • Duty of care? Foreseeability of harm; proximity of relationship between P and D; fair, just and reasonable to impose liability (Caparo Industries v Dickman [1990] 2 AC 605)

18. The Hill case - facts • Plaintiff was mother of the ‘Yorkshire Ripper’s’ last victim • Argued that the police had been negligent when investigating the Ripper’s activities and that this had caused their daughter’s death • Did the police owe a duty of care? (note that the test different at the time of the case, i.e. Caparo post-dates Hill)

19. 1989 Hill Ruling • Police did not owe a duty of care • No proximity of relationship • And arguments of “public policy” – resources; time; public less well served; etc • Court followed the decision in Rondel v Worsley [1967] 3 All ER 993

20. 4 years later, a similar case aroseOsman v Ferguson • Teacher “formed an unhealthy attachment to a 15-year-old male pupil” • Patterns of harassment and the police had been in contact with the teacher and with the boy • Teacher then shot the boy and killed his father • Boy and mother sued: but did the police owe a duty of care?

21. Osman v Ferguson[1993] 4 All ER 344 • Court held that it was arguable that sufficient proximity existed • But concluded that no duty of care was owed because of the rule of public policy in Hill • As a result of these cases, the Police effectively enjoyed an “immunity” from suit and did not owe legal duty of care. • New cases were therefore “struck-out” as disclosing no reasonable cause of action. This meant that cases did not go to a full hearing

22. Osman went to ECtHR… • ECtHR found that the immunity violated Article 6 ECHR (Osman v UK[1999] 1 FLR 193) • Although the ECtHR has since changed its mind in part; UK courts have become a little bit less absolute about duties of care & the police

23. So what about the decision in Hill? • It is still a precedent, although one that will now be followed much more on a “case-by-case” basis, rather than on a “category of case” basis (categories being apt to give rise to immunities). And note, e.g., the demise of Rondel v Worsley • For example: in Brooks v Metropolitan Police Commissioner [2005] 2 All ER 489 – Hill applied, but with modification (see, in particular, the opinion of Lord Steyn at paras 27-30)

24. Conclusions • Precedent, for some, defines the working of the common law system • And flexibility, for others, defines the common law • Hill is perhaps an example of both assumptions in operation