Judicial Precedent as Practice of the Courts

Judicial precedent is best understood as a practice of the courts and not as a set of binding rules. As a practice it could be refined or changed by the courts as they wish.’ Discuss

The American jurist and Supreme Court Judge Oliver Wendell Holmes Jr (1841-1935) famously said that the life of the law was not logic but experience. [1] Miles Kington put it another way in Punch,” Judicial precedent manes a trick which has been tried before, successfully.” [2]

A precedent is a judicial decision which contains in itself a principle. The decision of a court upon a procedural question, on what may be called ‘procedural facts’, may well have the effect of creating a substantive legal right or imposing a substantive legal duty, without deciding the substantive merits in the particular case. [3] There are two types of precedents binding and persuasive. English Law is based on a doctrine called binding precedent. The fundamental principle on which the doctrine of precedent is based is known as stare decisis – let the decision stand. Any previous decision of a higher court is binding on judges in lower courts, unless there are reasonable grounds for distinguishing the case on its facts. The doctrine does not only have a vertical effect. It also has a horizontal effect i.e. some courts are not only bound by the decisions of superior courts but also by their own previous decisions.

Decisions of the superior courts are binding on inferior courts. In England the decision of the House of Lords which is now Supreme Court of England after the Constitutional Reform Act 2005 are binding on all courts. The decision of the Court of Appeal is binding on all courts except the House of Lords. The decisions of the High Courts are binding on all courts except the two superior courts House of Lords and Court of Appeal. Only these three courts can create binding precedents in U.K. The Crown County and the Magistrates Courts cannot create binding precedents. This is the vertical application of the doctrine of binging precedent. Since 1973, the decisions of the European Court of Justice are also binding on all British courts in relation to Community Law.

A decision of the House of Lords occasioned by members of the House being equally divided is as binding on the House and on all inferior tribunals as if it had been unanimous9. Decisions of the House of Lords are binding on every court inferior to it10. It is not open to the Court of Appeal to advise judges to ignore House of Lords decisions on the ground that they were decided per incuriam or are unworkable11; but if there is no discernible ratio decidendi the Court of Appeal may adopt any reasoning which appears to it correct provided it supports the actual decision of the House12. [4]

With regards to the horizontal application of the doctrine, it may be stated that the House of Lords was bound by its own pervious decision until 1966. This practice was established in the mid 19th century and reaffirmed in the London Street Tramsway v London County Council in 1898. The rationale for this was that the decisions of the highest court in the land should be final in order to maintain certainty in the law and to put an end to litigation. However after increasing criticism the House of Lords freed itself from the self imposed restraint by a practice statement from then Lord Chancellor, Lord Gardiner. He stated that the House of Lords would in future regard itself free to depart from its previous decisions where it appeared right to do so. The practice statement contained the reasons for freeing the House of Lords; in the interest if justice and to allow proper development of the law, in order to adapt English Law to meet changing conditions, to take into account the decisions that have been given in the Commonwealth Countries and to keep in line with other countries of the world. It should be noted that, given the potentially destabilizing effect on existing legal practice based on previous decisions of the House of Lords, this is not a discretion that the House of Lords exercises lightly.

Lord Chancellor however appreciated the importance of the doctrine and continued that in certain matters courts should be reluctant to overrule unless it is necessary. These matters included criminal law, commercial law, fiscal law and interpretation of statutes.

Since 1966 the House of Lords has used its power sparingly and has refused to overrule merely because its decision was wrong. A material change of circumstances has to be shown if an overruling has to be achieved. In Food Corporation of India, the House of Lords held that merely because a decision is wrong and there is academic debate an overruling will not be made. The House of Lords has been very cautions in commercial matters and in Paul Wilson it refused to overrule Bremer Vulcan even when it was felt that it was wrongly decided.

However, the House of Lords has been overruling where a change of circumstances has been shown or where it has been felt that refusing to overrule will result in injustice.

The first overruling by the House of Lords came in 1968 when in Convey v Rimmer the House of Lords overruled Duncan because a change in political circumstances was shown. In Harrington the House of Lords overruled Addie because there was change in social and physical conditions. In Milliangos the House of Lords overruled Havana because of change of foreign exchange conditions.

The House of Lords has even overruled in criminal cases, where it has found that otherwise a wrong interpretation of law will continue as in Shivpuri it overruled Anderton v Ryan or where in justice would be caused or the law is harsh as in R v G it overruled Coldwell.

The House of Lords has also been vigilant to take into account the decision of the common wealth countries and for this reason the House of Lords overruled Anns in Murphy.

After 1966 the House of Lords has been freed but bas used its freedom sparingly and has balanced certainty with flexibility in it’s over rulings.

The next court in the hierarchical structure is the Court of Appeal. The Court of Appeal is bound by the decision of the House of Lords. A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow12; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force, or when, in rare and exceptional cases, it is satisfied that the earlier decision involved a manifest slip or error and there is no real prospect of a further appeal to the House of Lords. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties17, or because the court had not the benefit of the best argument18, and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in

ignorance of some inconsistent statute or binding authority. [5] Although the Court of Appeal, notably under the aegis of Lord Denning, attempted, on a number of occasions, to escape from what it saw as the constraints of stare decisis, the House of Lords repeatedly asserted the binding nature of its decisions on the Court of Appeal in cases such as Broome v Cassell and Miliangos v George Frank (Textiles) Ltd.

In order to consider the horizontal application of the doctrine in the Court of Appeal, it is necessary to consider its civil and criminal jurisdiction separately.

The Court of Appeal in a civil case is generally also bound by its own previous decision. However there are a number of exceptional situations where the Court of Appeal is not bound by its own previous decision as explained by Lord Greene MR in Young v Bristol Aeroplane Co Ltd.:

1.      Where there are two conflicting Court of Appeal precedents on the issue;

2.      Where a Court of Appeal decision is inconsistent with a House of Lords’ decision; and

3.      Where a Court of Appeal decision appears to have been decided ‘per incuriam’, without due care, and is consequently erroneous.

The Court of Appeal (Criminal Division) may follow the same guidelines as the Civil Division, but is also entitled exercise a more generous discretion to depart from one of its own decisions where it is convinced that such a case was wrongly decided and would cause hardship if followed in a case where a citizen’s liberty is at stake (R v Gould).

Once again there was an attempt by the Court of Appeal under Lord Denning to widen these exceptions as in Gallie v Lee but again the House of Lords reaffirmed the limited nature of these exceptions and reasserted the strict operation of the doctrine of stare decisis.

If its decision conflict with the European Court of Justice in relation to community law, it will not be bound. Moreover, it is not bound to follow in earlier decision if it is needed to be reviewed in the light of the Human Rights Act 1999. A ruling of the European Court on a question of the interpretation of a Community treaty or the validity or interpretation of another Community instrument made at the request of a domestic court of a member state2 is strictly binding only on that domestic court in the case in which the request was made3; it does not bind the domestic court in any other case4, although if a judge is faced with a question of interpretation which has already been answered by the European Court in another case he ought to follow that answer5, for the procedure is designed to safeguard the uniform judicial interpretation of Community law6. [6]

Further down the hierarchy, the High Court is bound by the decision of the House of Lords and the Court of Appeal. The decisions by individual High Court judges are binding on courts inferior in the hierarchy. Such decisions are not binding on other High Court judges although they are of strong persuasive authority and tend to be followed in practice.

Although subject to binding precedent from superior courts, Crown Court cannot create precedent and their decisions can never amount to more than persuasive authority. The decisions of county courts and magistrates’ courts are never binding.

The decision or judgment of a judge may fall into two parts: the ratio decidendi and obiter dictum. The ratio decidendi of a case is the principle of law on which the decision is based and is the binding part of a judicial decision.

An obiter dictum is a legal opinion stated by a judge that is not necessary for his or her conclusion (something said by the way) and is not binding in later cases. However, an obiter dictum may be of persuasive authority in later cases.

The doctrine of binding precedent has both been praised and castigated.

Lord Justice Scarman had opposed Lord Denning in Tiverton Estate. Justice Brandis of the US Supreme Court had stated that certainty is more important than an approximation to an ideal.

Secondly the doctrine of binding precedent prevents mistakes by inferior court judges because they have guidance from the superior court.

Finally the doctrine of binding precedent ensures that people have faith in the legal system. When all similar cases are decided alike then people see justice be done.

However, the doctrine of binding precedent has been criticize that judges start to give decisions mechanically as was stated by Lord McMillan in Birch v Brown where he said that precedent should be used as stepping stones rather than halting places.