THE DOCTRINE OF PRECEDENT

THE DOCTRINE OF PRECEDENT Unit 5

Preview • Common law: precedent • Hierarchy of English courts • Stare decisis • Ratio decidendi • Obiter dicta • Distinguishing, overruling and reversing • Law reports • Legal terms • Exercises

Common law • Consists of substantive law and procedural rules that are created by the judicial decisions made in the courts • Although legislation may override such decisions, the legislation itself is subject to interpretation and refinement in the courts

Precedent • A judgement or decision of a court, normally recorded in a law report, used as an authority for reaching the same decision in subsequent cases

The Hierarchy of English Courts

Civil cases • European Court of Justice • The Supreme Court • Court of Appeal (Civil Division) • High Court • County Court • (Magistrates Court)

Criminal Cases • European Court of Human Rights • TheSupreme Court • Court ofAppeal (CriminalDivision) • Crown Court • Magistrates’ Court

Court ofJusticeofthe EU • DecisionsoftheEuropean Court ofJustice: binding on all othercourtsinEnglandandWales; • ECJ – prepared to overruleits own past decisionsifnecessary

TheSupreme Court • (formerly: theHouseofLords) • PracticeStatement (1966): TheHouseofLords no longerboundbyits past decisions

PracticeStatement (1966): consequences • R v R(1991): rapeinmarriage is a crime: activelaw-making • C v DPP (1995): refused to change a commonlawpresumptionaboutthecriminalresponsibilityofchildrenunder 14, statingthatParliamentshouldmakesuchchanges: passivelaw-making

CourtsofAppeal (Criminaland Civil Divisons) • BoundbydecisionsoftheSupreme Court • bound to follow past decisionsoftheir own, withlimitedexceptions

TheHigh Court • Divisionalcourts: 1. Queen’s BenchDivision (criminalappealsandjudicialreview), 2. ChanceryDivisionand 3. FamilyDivision • Boundbythe Court ofAppealandtheSupremeCourt • Civil divisionalcourts – boundbytheirpreviousdecisions • Queen’s BenchDivision – more flexible

TheCrown Court • Boundby all thecourtsabove it • Itsdecisions do notformbindingprecedents • Notboundbyits own decisions

Magistrates’ andcountycourts • Inferiorcourts • BoundbytheHigh Court, CourtofAppealandtheSupremeCourt • Theirdecisions - notreportedandcannotproducebindingprecedents, or evenpersuasiveones • Notboundbytheir own decisions

Stare decisis • Stare decisis (et non quieta movere) = stand by things decided (and do not unsettle the established) • Supports the idea of fairness and provides certainty in the law

Stare decisis • The principle of binding precedent: decision of a higher court is binding on a lower court, i.e. the decision must be followed, and in the course of a trial the judges must refer to existing precedents

Stare decisis • Judges will consider decisions made in a lower court, but they are not bound to follow them • A rule set by a court must be applied if it is to the point – relevant or pertinent

Ratio decidendi • A case involves many facts and issues of evidence • The eventual decision itself does not actually set the precedent • The precedent is the legal principle which the judge relied on in determining the outcome of a case

Ratio decidendi: “the reason for deciding”; • The basis for a precedent • The principle or rule of law on which a court’s decision is founded

Ratio decidendi • At the end of a case – judgement: a speech by the judge giving the decision and explaining the reasons for the decision

Ratio decidendi • In a judgement, the judge is likely to: • Give a summary of the facts of the case • Review the arguments given by advocates • Explain the principles of law he is using to come to the decision • These principles: ratio decidendi

Ratio decidendi • ‘Any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusions’ (Sir Rupert Cross)

Obiter dictum/dicta“something said in passing” • A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be persuasive)

Obiter dictum/dicta • “Strictlyspeakingan ‘obiterdictum’ is a remarkmade or opinionexpressedby a judge, in his decisionupon a case, ‘bytheway’ – that is, incidentally or collaterally, andnotdirectlyuponthequestionbeforethe court; or it is anystatementoflawenunciatedbythejudge or court merelybywayofillustration, argument analogy, or suggestion...

Obiter dictum/dicta • In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as ‘dicta’ or ‘obiter dicta’, these two terms being used interchangeably” (William M. Lile et al, Brief Making and the Use of Law Books)

Ratio/obiter • A major problem: to divide the ratio decidendi from the obiter dicta, as the judgment is usually in a continuous form, without any headings specifying what is meant to be part of the ratio decidendi and what is not

Judgements • There may be more than one speech at the end of a case, depending on the number of judges • In appeal courts and the Supreme Court cases are heard by at least 2 judges and up to a maximum of 7 judges

Judgements • It is common that one judge gives the judgment and the other judges say ‘I agree’ • When there is a complicated point of law, more than one judge may want to explain his legal reasoning: more than one ratio decidendi

Original precedent • Ifthepointoflawin a casehasneverbeendecidedbefore, whateverthejudgedecideswillforma new precedent: original precedent • As there are no past cases to base a decision on, thejudge is likely to look at caseswhich are theclosestinprincipleandmaydecide to use similarrules: reasoningbyanalogy

Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995) • The question whether the interference with television reception by a large building was capable of constituting an actionable private nuisance

Hunter v Canary WharfFacts of the case • In 1990 the Canary Wharf Tower , 250 m high and over 50 m square, was built • The claimant and hundreds of others suing with her, claimed damages from the defendant for interference with reception of TV broadcasts in their homes • The interference was claimed to have been caused by the tower

Hunter v Canary WharfExtract from the judgement • Lord Irving (counsel for the defendants) submits that interference with television reception by reason of the presence of a building is properly to be regarded as analogous to loss of aspect (view). To obstruct the receipt of television signals by the erection of a building between the point of receipt and the source is not in law a nuisance.

Hunter v Canary Wharf Extract from the judgement • In Aldred’s Case (1611) Wray CJ what he had said in Bland v Moseley: “for prospect, which is a matter only of delight and not of necessity, no action lies for stopping thereof, and yet it is a great recommendation of a house if it has a long and large prospect …But the law does not give an action for such things of delight”.

Hunter v Canary Wharf: Extract from the judgement • ‘I accepttheimportanceoftelevisioninthelivesofverymanypeople. However, inmyjudgementtheerection or presenceof a building inthe line ofsightbetween a televisiontransmitterandotherproperties is notactionable as aninterferencewiththe use andenjoymentofland. Theanalogywithlossofprospect is compelling.

Hunter v Canary WharfExtract from the judgement • The loss of a view, which may be of the greatest importance to many householders, is not actionable and neither is the mere presence of a building in the sight line to the television transmitter’

Persuasive precedent A precedent that is not binding on the court, but the judge may decide that it is a correct principle so he is persuaded that he should follow it Sources: courts lower in the hierarchy, obiter dicta, dissenting judgements, decisions of courts in other countries

Avoidingprecedent • Distinguishing • Overruling • Reversing

Distinguishing • The judge finds that facts of the case he is deciding are sufficiently different to draw a distinction between the present case and the previous precedent; not bound by the previous case

Overruling • A court in a later case states that the legal rule decided in an earlier case is wrong • A higher court may overrule a decision by a lower court (The Supreme Court overruling a decision of the Court of Appeal, or where the highest court (ECJ or the Supreme Court) overrules its past decision

Reversing • A court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case • The Court of Appeal may disagree with the legal ruling of the High Court; in this situation they reverse the decision of the High Court

Law Reports • The development and application of the common law system pivots upon the existence of a comprehensive system of reporting cases • The Law Reports – the most authoritative and frequently cited set of reports

History of Law Reports • Law reports – since 13th c.; many early reports – very brief and not always accurate • Reports 1275 to 1535 called Year Books, short reports of cases, usually written in French • 1535-1865 cases reported by individuals who made a business out of selling the reports to lawyers

History of Law Reports • 1865 the Incorporated Council of Law Reporting set up – controlled by the courts • Reports became accurate, with the judgment noted down word for word

Law Reports • Cases are not always reported in the year that they are decided so a case citation will refer to the volume and year in which the case was published, e.g. Meah v Roberts, [1978] 1 All ELR 97

The structure of a law report • 1. catchwords – indicate what the case is about • 2. headnote – a summary written by the reporter • 3. majority judgements, dissenting judgements

Underlying principles • Law should be stable, secure and predictable • Similar cases should be decided in the same way and the decision should rely on the established tradition

Advantages of precedent • Certainty • Consistency and fairness in the law • Precision • Flexibility • Time-saving

Certainty • Because the courts follow past decisions, people know what the law is and how it is likely to be applied in their case

Consistency and fairness • It is seen as just and fair that similar cases should be decided in a similar way • The law must be consistent if it is to be credible

Precision • As the principles of law are set out in actual cases the law becomes very precise • It is well illustrated and gradually builds up through the different variations of facts in the cases that come before the courts

THE DOCTRINE OF PRECEDENT