2A.4.3 Binding, persuasive and original precedent

Question 1

What are the three main types of precedent?

Answer 1

• Binding precedent
• Persuasive precedent
• Original precedent

Question 2

Binding precedent

Answer 2

This is a precedent from an earlier case that must be followed if the decision was made by a court that is at a higher level than the court hearing the latter case.

• For example, a precedent by the Court of Appeal Civil Division must be followed by all lower courts in the hierarchy and will generally be followed by later cases heard by the Court of Appeal. This follows the principle of stare decisis.

Question 3

Persuasive precedent

Answer 3

Precedent that is not binding on the court, but the judge may consider it and decide that it is a correct principle, and be persuaded to follow it.

Question 4

What sources can persuasive precedent come from?

Answer 4

• Lower courts
• Decisions of the Judicial Committee of the Privy Council
• Statements made obiter dicta
• Dissenting judgements
• Decisions in other countries

Question 5

Persuasive precedent from lower courts

Answer 5

An example of this can be seen in R v R (1991), where the House of Lords agreed with and followed the same reasoning as the Court of Appeal. In this case, the judgement of the Court of Appeal was persuasive and the House of Lords followed it.

Question 6

Persuasive precedent from decisions of the judicial committee of the Privy Council

Answer 6

This court is not part of the court hierarchy of England and Wales and so its decisions are not binding. It acts as the highest court for the commonwealth. An example of this can be seen in the case of The Wagon Mound, relating to remoteness of damages in the tort of negligence. This means law made as a result of a case from another country can have an effect on the law in England and Wales.

Question 7

Persuasive precedent from statements made obiter dicta

Answer 7

As seen in the cases of R v Howe (1987) and R v Gotts (1992).

Question 8

Persuasive precedent from sissenting judgements

Answer 8

Where a case has been decided by a majority of judges, the judge who disagreed will also have explained the reasons for reaching that decision. The dissenting judgement has persuaded the higher court to follow it.

Question 9

Persuasive precedent from decisions in other countries

Answer 9

This is especially in countries with similar legal system, mainly Commonwealth countries such as Canada, Australia and New Zealand.

For example, The Wagon Mound.

Question 10

Original precedent

Answer 10

If the point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases to follow.

If there are no past cases for the judge to base their decision on, they are likely to look at cases which are the closest in principle, and may decide to use similar rules. – This way of arriving at a judgement is called reasoning by analogy.

It could be argued by some that judges have a law-making role in these situations – when a new point has to be decided, the judge is creating new law.

Question 11

Examples of law that has never been decided on

Answer 11

• R v R (1991)
• Re A (conjoined twins) (2000)
• Re s (1992) refusal of caesarean
• Hunter v Canary Wharf (1997)

Question 12

Methods of handling precedent

Answer 12

• Following
• Overruling
• Reversing
• Distinguishing

Question 13

[Methods of handling precedent]

Following

Answer 13

When a judge considers a precedent is relevant to the case, and it is binding, then the precedent must be followed.

Question 14

[Methods of handling precedent]

Overruling

Answer 14

This is where a court, in a later case, states that the precedent decided in an earlier (different) case is wrong. Overruling may occur when a higher court changes, or overrules, a decision made in an earlier case by a lower court, such as the Supreme Court overruling a decision of the Court of Appeal.
As seen above, it can also happen when the Supreme Court uses the Practice Statement to overrule a past decision of its own.

• Pepper v Hart (1993): The House of Lords ruled that Hansard could be consulted in statutory interpretation. This decision overruled the earlier decision in David v Johnson (1979), when the House of Lords had held that it could not consult Hansard.

Question 15

[Methods of handling precedent]

Reversing

Answer 15

This is where a court higher in the hierarchy, in an appeal, overturns the decision of a lower court on appeal in the same case.
For example, the Court of Appeal may disagree with a ruling of the High Court and come to a different view of the law. In this situation it reverses the decision made by the High Court. The decision of the appeal will then be substituted for that of a lower court.

• An example of reversing is the case of Sweet v Parsley (1970), when the House of Lords reversed the decision of the Queen’s Bench Division.

Question 16

[Methods of handling precedent]

Distinguishing

Answer 16

This is a method that can be used by a judge to avoid following a past decision, which would otherwise have to be followed. It means that the judge finds that the material facts of the present case are sufficiently different to allow a distinction to be drawn between the present case and the previous precedent, so that the precedent in the previous case is not binding.

• Examples of distinguishing are the criminal cases of R v Brown and R v Wilson.

Question 17

Precedent or Acts of Parliament?

Answer 17

If an Act of Parliament is passed, which contradicts a previously decided case, that case decision will cease to have effect. (The Act of Parliament is now the law on that point).