Case law - Analogy, rules and precedent (binding and persuasive). Ascertaining the ratio decidendi. Following, over-ruling and distinguishing.
The Judge as Law Maker
(1972) 12 J.S.P.T.L.22
R. Cross, Precedent in English Law.Discuss.
"In practice the characteristics of the case law process impose the most important limitations on judicial law making. The process is unpredictable, based on limited evidence and is incremental in nature." ('A' Level Law Dugdale et. al.)
Discuss critically this view ofjudicial law making. (25)
1997/2 "The traditional view of the function of an English judge is that it is not to make law but to decide cases in accordance with existing rules."
(English Legal System, Walker & Walker).
Discuss critically this statement in relation to the doctrine of precedent. (25)
1998/7 " legal decisions can logically by logical means from predetermined legal rules without reference to social aims, policies, morals standards " (H.L.A. Hart, Positivism and the Separation of Law and Morals (1958) 71 Harvard Law Review 593 at p. 602.)
Discuss how far the attitudes of the judges to precedent determines the way that they apply the system of precedent.
The doctrine of precedent states that a decision made by a court in one case is binding on other courts in later cases involving similar facts. In this way, uniformity within the law is, in theory, to a large extent maintained, and one of the most basic demands of our conception of justice is met, by the treating of like cases in like manner.
Allen, in his review of the history of the doctrine, presents evidence that English judges were making use of previously decided cases as guides as early as the thirteenth century. But it was not until the sixteenth century that the availability of reports of decided cases - and some of the earlier series of law reports were grossly unreliable and inadequate - brought any certainty or consistency into the operation of what gradually became the doctrine of binding precedent.
Precedent is the basis of the common law; that body of law emerging from cases as they are decided by the judges. We have seen several examples of cases containing points of sufficient legal importance to constitute precedents - Shaw v. DPP with its statement of law relating to conspiracy to corrupt public morals, which was followed in Knuller v. DPP ten years later; Donoghue v. Stevenson in 1932, containing Lord Atkin's statement of the 'neighbour principle' which was to become the foundation stone of later cases involving negligence, and so onm. What we are concerned with here is precedent in theory and in pratice: how the practical operation compares with the formal rules of the doctrine.
The doctrine of precedent is that of stare decisis (standing by previously decided rules of law). It only applies to rules of law decided in superior courts, is applicable to all future cases, and is immediately operational.
It should be distinguished from res judicata, which means standing by a past decision unless it is reversed (as distinct from overruled) on appeal, applicable in all courts, only affecting the parties to a case, and operational once all appeals have been exhausted.
Both doctrines are of practice rather than law, although they are, in effect, as binding (or more so) than any statute.
Judicial overruling is retrospective (i.e. any cases that appear before the court in the future having happened before the date of overruling will be decided on the basis of the rule that was not in existence when the act (etc.) was committed) - unlike statutory overruling; it is said that the earlier rule did not exist, and the law is being restated correctly.
Unreported cases are still binding, but judges will only allow them to be used if the same principle is not contained in a reported case, if a barrister present for the whole time the judgement given vouched for its veracity, if the court granted leave, and if the counsel assured the court that the unreported case contains a binding authority.
A settled hierarchy of courts emerging between 1873 and 1876 (through the Judicature Acts 1873-5) meant that it was clear who should obey whom, and allowed for the modern system of stare decisis to grow and thrive (although it should be noted that there was a system of precedent before this date.)
Precedents may be persuasive or binding. To be binding the precedent must:
If a precedent is not contained in the ratio, then no matter what court it was made in, it is not binding, merely persuasive. Such precedents are termed obiter dicta (things said by the way, e.g., in the previously cited example, the judge might say "But if he had been offered payment to unblock your drains, then the case would have been won.").
In essence, any 'rule' of law that does not satisfy both of the conditions above is a persuasive precedent.
Persuasive precedents should, in general, be followed unless there is a good reason not to do so.
It is not always easy to tell whether something is a dictum or is a ratio; but if something is expressed in the conditional, it is usually a dictum.
All decisions create at least a persuasive precedent, the degree of persuasiveness depending on the position of the court in the legal hierarchy and the contemporaneity of the decision. For example, precedents from the Judicial Committee of the Privy Council, not binding since the Committee is not part of the normal hierarchy of courts, are so persuasive (because the Committee is comprised of up to 9 of the most senior judges, the Lords of Appeal in Ordinary (or Law Lords)), that they empower the Court of Appeal, Civil Division to ignore its own binding precedents
Other sources of persuasive precedents include courts in foreign countries, for example, the decision in Eliason v. Henshaw.
Although obiter dicta are not binding, if they were made by a senior judge, they will usually be followed, particularly if the obiter was considered per curiam (by the whole court (as some are in the higher courts)).
It should be noted that the judges are not just playing a judicial game of 'What If?', but are recognising that the point of law may come up again, and are applying their skills to it so as to lay down some guidance to the more junior courts. This should decrease the likelihood of an appeal, if the higher court's opinion on the matter is clear. Without persuasive precedents the body of law set down by the Lords and, to a lesser extent, the Supreme Court, would be almost insignificant.
Obiter dicta have formed law, for example, in Central London Property Trust Ltd. v. High Trees House Ltd.  KB 130 and Pinnel's Case.
In some areas of law, persuasive precedents from very lowly courts have been seen as almost as inviolable as those of the mighty Law Lords, e.g., in the area of unfair contract terms
There are three main reasons why persuasive precedents are not binding:
Only points of law are binding. For example, in Qualcast v. Haynes 1959, it was decided that the 'precedent' that employers who failed to give instructions on the use of protective clothing were de facto negligent, was a question of fact and therefore not binding.
There are two main theories of precedent. The first of these is the declaratory theory, which states that the common law does not change - in each case the law is merely re-stated but not added to - the judges are declaring the law on the basis of past decisions.
The realistic theory is that they do - all principles must originally come from somewhere, and the abstraction of old principles is the creation of new law.
The declaratory principle states that law is not created, but exists within the judges, except where "the former determination is most evidently contrary to reason; more if it be clearly contrary to divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared not that such a sentence was bad law, but that it was not law, that is, not the established custom of the realm, as has been erroneously determined." - Blackstone.
In the 19th century, the judges generally adopted the position that they were not concerned with the justice of their decisions, and that they did not make law, but merely interpreted it - "It is the province of the statesman, and not the lawyer, to discuss, and of the legislature to determine, what is the best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors ..., from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion for the advantage of the community." - per Parke in Egerton v. Brownlow 1853.
This tended to lead to the stagnation of the law, and such new precedents as there were arose from novel situations rather than novel thinking. As a result many bad precedents came to be relied upon, and hence subsequently could not be overruled. This period of legalism continued, with judgments deduced rather than decisions reached until the 1950s. Judges now, as a contrast, are more ready to acknowledge that they make law.
In modern times judges have displayed only a limited reluctance to overrule what has been before them, and usually only when it would compromise the settled methods of the public have they decided against changes to the law, and many of the Law Lords now believe that the law should be developed according to changing circumstances in society - for example the abolition of the marital rape rule.
The likelihood of a judge overruling or making new precedents depends on the degree to which it would fundamentally change the law, the need for justice, the especial need to be non party-political, and the need to find a logical, rather than merely a just solution.
Judges (particularly in the Lords) have been, at times (and to an extent, still are - holding decisions to be wrong, but not refusing to overrule them) very strict in their adherence to stare decisis: they do not care whether a decision is 'right' or 'wrong', just or unjust.
It has been argued that since judges are unelected and unaccountable, stare decisis is all the more important, since it removes from judges the power to make political decisions overruling old laws.
The system of judicial precedent has long existed, but its modern importance was achieved through reliable reporting, which has only been guaranteed since 1865 (the Public law report), as well as the settled hierarchy of the courts (since 1876). Before this, reports, although often of high quality, could sometimes be unclear or non-existent, making it impossible to rely on any precedent contained within them. The famous statement that a judge "cared not for Espinasse, nor for any other ass", did not apply exclusively to this most maligned of reporters - there were several other reporters the quality of whose reporting was brought into question.
For instance, the quality of the Barnardiston, Lowndes, Modern, Carrington and Kirwan reports were brought into question in their time, although with the passage of time, come to be relied upon.
The quality of reports have improved with time, and it is probably true to say that any report published after 1800 will be of reasonable accuracy.
Even now, law reporting is imperfect, as important cases remain unreported, since there is no systematic coverage of cases, and hence the development of the law is hindered.
A practice statement in 1990 stated that the Law Reports , where there is a choice, to private reports.
|The law is updated to new events, inventions etc., and unforeseen circumstances||Adversarial justice requires high quality of advocacy, those who cannot afford good lawyers may lose.|
|Room for growth||Bad principles are binding - rigidity, this limits judicial discretion.|
|Practical - the law is applied to real occurrences rather than existing on paper.||Judges create the law but are not elected or accountable. However, it should be noted that judicial law making has often been positive, as in, for example, Donoghue v. Stevenson  AC 562, and that without such innovation, the law would be the poorer, and Parliament may not have taken such a bold step for the greater good.|
|Greater scope for detail than on paper||Complexity; increases costs and time taken for litigation, through research|
|Certainty - "An abandonment of the principle that [the Court of Appeal, Civil Division] follows its own decisions would lead to greater uncertainty and produce more litigation" per Russell LJ in Gallie v. Lee  2 Ch 18 CA. It should be noted that there is an obvious exception to this, in that new precedents (particularly original precedents) do not add certainty at all, and neither do precedents that overrule old precedents.||An act that was legal when committed can be punished - the law follows the event. It is a dogs' law (according to Bentham) - the dog does not know that what he is doing is wrong, but he is still punished for it.|
|Truly binding precedents are expensive to obtain - you must go all the way to the Lords (note that it has been suggested that there should be a referral of points of law to the Lords as in the European Court of Justice)|
|Illogical distinctions are made to avoid precedents.|
|COURT||WHOM DOES IT BIND?|
|The European Court of Justice||All beneath it|
|The House of Lords||All beneath it (but not itself since 1966)|
|The Court of Appeal||All beneath it|
|Divisional Court of Queen's Bench||Itself, except if it thinks that the decision was wrong, and the magistrates' court, but not the Crown Court (R. v. Colyer 1971, clearly an incorrect decision, since if it binds itself, it must surely bind the court below it).|
|The Crown/magistrates' Court||No-one|
|COURT||WHOM DOES IT BIND?|
|The European Court of Justice||All beneath it|
|The House of Lords||All beneath it (but not itself since 1966)|
|The Court of Appeal||Itself and all below|
|The High Court||All below|
Although lower courts do not bind themselves, judges and magistrates are expected to show uniformity of decision, and 'rules' of practice tend to arise. The High Court, for example, does not bind itself, but there is a reluctance to part from decided cases, particularly in the smaller Divisons where there is a greater intra-curial communication.
It was first established in 1966 by way of a practice statement that the House of Lords was not bound by its decisions - "Their lordships regard the use of precedent as indispensable. Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice and unduly restrict the development of the law. While treating former decisions of this House as normally binding, to depart from a decision where it appears right to do so. They will bear in mind the danger of disturbing the basis on which contracts, settlements of property and fiscal arrangements have been entered into and the especial need for certainty as to the criminal law."
This was followed in Miliangos v. George Frank (Textiles) Ltd.  AC 443, which overruled the 1961 Havana case, which said that judgement from a UK court could not be made in a foreign currency. This was done because the reason for the original decision (sterling's stability) no longer applied. It did however condemn the (identical decision) of the Court of Appeal.
The Lords overruled itself in Conway v. Rimmer 1968 over Duncan v. Cammell, Laird & Co. 1942, in Herrington v. British Railways Board  AC 877 over Addie & Sons v. Dumbreck 1929, in Vestey v. IRC  All ER 225 over Congreve v. IRC 1948, in R. v. Shivpuri  All ER 334 over Anderton v. Ryan  All ER 355, in R. v. Howe  All ER 771 over Director of Public Prosecutions for Northern Ireland v. Lynch  AC 653 and in Murphy v. Brentwood District Council 1990 over Anns v. Merton London Borough 1978.
In Jones v. Secretary of State for Social Services  1 AC 944 it was held by a 4-3 majority that a decision was wrong, but by a 4-3 majority that it should not be overruled.
In Paal Wilson & Co. A/S v. Paartenrederei Hannah Blumenthal 1983 the court refused to overrule Bremer Vulkan v. South India Shipping Corporation 1981, saying that the opposition of all legal authorities to the decision was not a change of circumstance but merely 'doubts as to the correctness' of the decision.
In R. v. Secretary of State for the Home Department (ex parte Khawaja), it was said that to overrule there would need to be a risk of injustice from the old precedent, and that the proper development of the law would be restricted, and that departure was the appropriate way to remedy the injustice.
Following this it was said in Fitzleet Estates Ltd. v. Cherry  1 WLR 1345 that for the Lords to overrule itself there would have to be a change of circumstances. Lord Wilberforce "The plaintiff did not advance any contention which was not before this House in 1966. There has been no change of circumstances that would call for or justify a review of the 1966 decision. There is nothing left but to contend that the 1966 decision is wrong.
The 1966 Practice Statement was never intended to allow such a course. Nothing could be more undesirable than to allow litigants to return to this House in the hope that a differently constituted committee might take the view its predecessors rejected. It requires much more than doubts as to the correctness of such opinions to justify departing from it."
This statement is surely an excessively restrictive interpretation of the 1966 statement, which, one would assume would state if it intended to only apply if something has changed. It clearly does not do this.
From the Cherry case and others can be derived a set of circumstances whereby a decision might be overruled.
Many factors affect the likelihood of a decision being overruled:
The age of the case - note Lord Wilberforce in Miliangos however, "I cannot accept the suggestion that because a rule is long established only legislation can change it - that may be so when the rule has infected the whole legal system, or the choice of a new rule involves more far-reaching research than courts can carry out.".
In C v. Director of Public Prosecutions 1995, Lord Lowry gave these guidelines for judicial law making:
Unlike the High Court, it binds the Employment Appeal Tribunal.
If it was made the highest court of appeal (as was the intention when the Liberal government passed the Judicature Acts), costs would be reduced as would conflicting precedents and fewer unfair precedents would stand as a result of litigants being unable to afford an appeal.
The Court of Appeal cannot overrule the House of Lords (according to the Lords(!)), but tried to in Morris v. Crown Office 1970 (and later in Miliangos v. George Frank Ltd.), arguing that a Lords decision must have "overlooked ... [or] misunderstood ... [the existing common law, and that the Lords decision was] hopelessly illogical and inconsistent", and directed inferior courts to ignore the binding Lords decision. This attitude was overruled with great vigour, since it was clear that the Lords had not, as claimed, overlooked the existing common law, but had cited it in summation.
Cassell and Co. Ltd. v. Broome  AC 1027 the House of Lords said the Court of Appeal could not overrule the Lords even if it was per incuriam, and in Miliangos rejected the idea that the Court could overrule on the grounds of cessante ratione cessat ipsa lex.
It binds itself unless (from Young v. Bristol Aeroplane Co. Ltd.  KB 718, and others)
In Davis v. Johnson  AC 264 Lord Denning said "It is said that, if an error has been made, this court has no option but to continue the error and leave it to be corrected by the House of Lords.
The answer is this: the House of Lords may never have an opportunity to correct the error; and thus it may be perpetuated indefinitely, perhaps for ever."
"There have been many instances where cases have been settled pending an appeal to the House of Lords; or, for one reason or another, not taken there, especially with claims against insurance companies or big employers. When such a body has obtained a decision of this court in its favour, it will buy off an appeal to the House of Lords by paying ample compensation the appellant. By so doing, it will have a legal precedent on its side which it can use with effect in later cases"
"By such means an erroneous decision can be perpetuated forever. Even if all those objections are put on one side and there is an appeal to the House of Lords, it usually takes 12 months or more for the House to reach its decision. What then is the position of the lower courts meanwhile? They have to apply the erroneous decision, or adjourn awaiting the decision of the House of Lords. Justice is delayed, and often denied, by the lapse of time before the error is corrected."
"If the present case took the ordinary course of appeals to the House, it would take some months before it was decided. Meanwhile many women would be denied the protection which Parliament intended they should have. They would be subject to violence without redress; because the county court judges would have to say to them: 'We are sorry but the Court of Appeal says we have not jurisdiction to help you.'"
"in 1852 Lord St. Leonards Lord Chancellor in Bright v. Hutton [3 HL Cas 341] said "you are not bound by any rule of law which you may lay down, if you should find reason to differ from that rule; that is, like every Court of Justice, possesses an inherent power to correct an error into which it may have fallen" (this case was decided before the Judicature Acts were passed)
"as the judges in Young v. Bristol Aeroplane Co. Ltd. thought fit to discard the practice of a century and declare new practice, so we in 1977 can discard the guidelines of 1944 and revert to the old practice"
"Nothing said in the House of Lords, before or since, can stop us from doing so. Anything said about it there must be obiter"
"To my mind this court should apply similar guidelines to those of the House of Lords in 1966"
Lord Diplock on appeal said that "I do not find it necessary to trace the origin and development of the doctrine of stare decisis before the present structure of the courts was created in 1875.
The provisions of the Administration of Justice Act 1969, are based on the tacit assumption that the rule as stated in the Bristol Aeroplane case is correct [since leap frog appeals are if "the judge is bound by decision of the Court of Appeal or House of Lords, and was fully considered in the judgments given by the Court of Appeal or the House of Lords (as the case may be)'. Note that Lord Diplock is incorrect in suggesting that Parliament necessarily showed their approval of the Act, as they almost certainly did not question the rule of practice.] the justification for by passing the Court of Appeal when the decision by which the judge is bound is one given by the Court of Appeal itself in previous proceedings is because that court is also bound by the decision, if the point of law was fully considered and not passed over per incuriam.
In an appellate court of last resort a balance must be struck between the need on the one side for the legal certainty resulting from the binding effect of previous decisions and on the other side the avoidance of undue restriction on the proper development of the law.
In the case of an intermediate appellate court, however, the second desideratum can be taken care of on appeal to a superior appellate court"
In Cumming-Bruce LJ's concurrent judgment, it was said that "the undoubted public advantages of certainty in civil proceedings must be purchased at the price of the risk of injustice in difficult individual situations.
Unlike the Civil Division the liberty of people is at stake, and so the doctrine of precedent is followed less rigidly.
The ordinary High Court does not bind itself.
Divisional Courts bind themselves to the extent the Court of Appeal (Young v. Bristol Aeroplane Co. Ltd.) binds itself, unless the Divisional Court was acting as a court of first instance, e.g. in judicial review (R. v. Manchester Coroner, ex parte Tal  3 All ER 771). They bind solitary High Court judges. Divisional Court judges have ignored Court of Appeal decisions where they were inconsistent with Lords decisions; whether they have the authority to do so is doubtful.
Rules of practice may arise in certain localities, particularly in Magistrates' Courts through the advice of clerks.
Decisions of the Crown Court have far more weight (but are still not binding), particularly as High Court judges may be sitting.
It may be difficult to determine the ratio of a case - if the ratio cannot be discerned, the principle cannot be binding.
Since it can be difficult to discover the ratio decidendi of a case, E Wambaugh in his 1894 book Study of Cases, devised the test of inversion, which involves taking the point that you suspect to be the ratio, adding a word so that its meaning is reversed; if the decision would be the same, it is not the ratio decidendi. Note that this method may fail for multiple ratio cases.
Goodhart in Determining the Ratio Decidendi of a Case suggested the following test: If in a case, the facts V, W, and X exist, and if the court finds W and X material but V immaterial and reaches conclusion Y, then in any future case if W and X exist or V, W, and X exist then the conclusion must be Y. If in a future case, W, X, Y, and Z exist and Z is held material, then the first case is not direct authority, but can be used for analogy (material facts are those relevant to the decision - the plaintiff's name, address, appearance, date on which the cause of action took place will generally not be material).