Doctrine of Precedent in English Legal System

As the doctrine of precedent is an essential part of English legal system, knowing how it works is also undeniably important. Within the hierarchy of English courts structure, it is a general idea that in some cases are bound to follow previous decisions while some cases are not.

The operation of the doctrine of precedent is based on Stare Decisis which is a Latin term meaning that stand by the previous decision. The doctrine of precedent refers that the legal decisions made by judges in higher courts are remained as a precedent, so the decisions made by lower or equal courts in future are needed to be followed the earlier decision made in the higher courts. It is believed that the doctrine of precedent brings certainty to the English legal system.

In each case, judges are to provide judgments upon their decisions. This judgment has to provide two types of states. Which are the Ratio dicidendi and the Obiter dicta.

The ratio dicidendi means the reason for the decision. It literally means the main reason why judge has come to the decision. It would be the rule of law that governs the decision and, it is a general statement that does not involve particular details in each case. It is set for the precedent to apply in the future case decision. As an example of the ratio, in the case Donoghue v. Stevenson (1932), a client became ill after drinking spoiled ginger beer which was a dead snail in and sued the manufacturer, the ratio decidendi is to be the part that read ‘a person owes a duty of care to those who he can reasonably foresee will be affected by his actions. The ratio of Donoghue v. Stevenson (1932) subsequently brought major development to the law of negligence.

The statements outside the ratio dicidendi are called the Obiter Dicta. As its meaning, the Obiter Dicta does not state the primary reasoning of the decision, therefore it is not binding for the future decisions. Although it is not a part of the precedent, some of the Obiter Dicta can be referred in the future case to make the certain view to the law more persuasive. In the case of Carlill v Carbolic Smoke Ball Co Ltd (1892), the obiter dicta would be ‘If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course, they at once look [for] the dog, and as soon as they find the dog they have performed the condition.’ [1] The judge added this part to assist his view on the decision.

There are three different types of precedent.

The original precedent is referred to the initial, new precedent to be set as there is no previous decision the judge to follow until that point of time. It means that there will be new set of the ratio decidendi to follow in the similar future cases. Normally, as there was no earlier decision to follow, the judge would give the reason by analogy. However, judges would try to look for the nearest cases to consult. As an example of an original precedent, there is a famous case Donoghue v. Stevenson (1932) which brought major development on negligence law. Although there was a concept of a duty of care within particular circumstances, generally between contractors, this case widened its application and the point of law as Lord Atkins made the precedent as known as the neighbor principle.

The binding precedent refers where the present case has to follow the previous decision when there is a sufficient similarity of the facts in the later case and the previous decision was from the higher positioned court or the court in the same level. In other words, the inferior court is bound to follow the superior courts’ decision when dealing with similar case.

The persuasive precedent is more flexible on its sources. Although it is not binding to the court hierarchy, judges are able to use precedent if they find it necessary for the case or sufficient reasoning. Not only it is opened to use the obiter dicta, it is also opened to the precedents made by lower courts. This was illustrated in the case of R v Gotts (1992), the court of Appeal followed the obiter dicta of R V Howe (1987) case as a persuasive precedent on deciding the non-availability of duress as to a charge of attempted murder. In addition, a dissenting judgment which means a judgment of disapproval of the majority and the decisions made in other countries can also be used as persuasive precedent. This can be founded in the case of McLoughin v O’Brian (1983) which was about nervous shock in negligence.

The persuasive precedent can be from treaties, decisions from the privy council and even law review articles within the right extent of reputation of the author and the relevance to the case.

The main point of operating the doctrine of precedent is that the fact that every court is bound within its hierarchy. As the House of Lords is being on the top of the hierarchy, all the courts that lay in the lower hierarchy need to follow the precedents from the house of Lord. It was very rigid and strict, even the House of Lords had to follow its own decisions until it has changed in 1966. This rigidity was established in 19th century and illustrated in a case, London Tramways Co Ltd v London County Council (1898) which proved that the decision from the highest court should be considered as the final to assure the certainty of the law and the finality in litigation. This was changed in July of 1966 by Lord Gardiner, the Lord Chancellor’s statement as read as:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases…Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so….” [2]

Now it is possible to the House of Lord to make changes when it is needed as regard to the social conditions and to adjust the changes with the superior courts in the Commonwealth. For the characteristic of the doctrine of precedent, it is essentially important to have appropriate law reporting system. And more importantly, the reports must be kept accurately in order to operate the doctrine of precedent right.

As mentioned above, every court is bound to its upper, sometimes equal courts. However, there are some situations that judges do not have to follow the previous decisions.

Judges can be avoiding ruling in several ways.

A judge might be able to distinguish the enough material differences in facts between the earlier case and the current case upon him so the judge can avoid following the previous decision. For instance, if there were a dead snail in a transparent bottle to see that there was something in the drink in a present case while the color of the bottle was dark so that the client could not notice that there was a dead snail, a judge would be able to not take the past precedent on deciding. It was illustrated in cases Balfour v Balfour (1919) and Merritt v Merritt (1990). In the both of cases, a wife sued her husband for breach of the contract. The latter case recognized the legal contract between a wife and a husband because it was in writing, whereas it did not in the earlier case as there was less material evidence to prove the legality in the agreement.

Reversing occurs when a higher court in hierarchy deny the decision of a lower court on an appeal with the same case. If a judgment made by a inferior court was founded to be incorrect and wrong, a superior court will overturn the decision in an appeal.

Not only a higher court in hierarchy is able to reversing a same case on appeal, it is possible that a higher court can over-ruled past decisions usually from a lower level of court. However, the House of Lords and the ECJ are able to over-rule its own decisions made in past. For example, the House of Lards could abolish the law that a wife should always be available to have sex when a husband wants even if a wife does not want it because of the practice direction made by Lord Chancellor in 1966.

The doctrine of precedent is a vital part of English legal system as it provides a certainty to the law and sets up the hierarchy structure of the court system. Although it still is said to be rigid and inflexible, attempts of adaptation of social changes are made and it opens to the time and changes.