Case law & precedent

Question 1

Explain an overview of the concept of legal precedent

Answer 1

The Doctrine of ‘stare decisis’ to stand by (previous) decisions’

How common law is decided is based upon Precedent i.e. the courts are governed by their own rules.

Essentially each case that is decided by a court about a particular issue/case adds/contributes to a body of rules in that particular area.

Any ruling in the court will be binding on a later case if it is a statement of law which is part of ‘ratio decidendi’ (reasoning) of the earlier case decided in court which binds the present court where there are no relevant factual distinctions between the cases.

The lower courts are bound by the higher courts rulings and precedent. The decisions made at the higher/est courts bind all other courts including those below it. This ensures that the system is fair and that law is applied equally in each case providing the advantage of consistency.

A Key Point about court precedents is that the system of precedent is that judges can use the facts of another case to reach a different result/verdict. This is because two cases which at first glance appear similar can have key differences and details which allow a judge to distinguish one case from another almost entirely and thus not reach a verdict based somewhat on precedent.

Question 2

What is the criteria for a case law to be legal precedent?

Answer 2

SO a statement in one case will be binding in a later case if;

1. It is a statement of law
2. It is part of the ratio decidendi of the earlier case
3. There are no relevant factual distinctions between the two cases
4. Its decided in a court binding on the present court.

Question 3

What are the 4 key aspects that you will need to distinguish between when analysing a case or judgement?

Answer 3

(1)Material information

(2)Ratio decidendi

(3)Obitum dicta

(3)Decision (overall outcome in the case)

It’s often common for cases to only have the decision reported and not immediately disclose the ratio or reasoning behind the division. The case law = knowing and understanding the ratio of that case and knowing what precedent it sets for future cases.

Cases can have more than one ratio because the ratio may be; disputes, the case may be so complex and lengthy reasoning, or because different judges react to things in different ways. Statements (2) (3) and (4) in the Donoghue case are all accepted as the ratios. The ratio does not have to be a quotation from a judgement either; it is simply the underlying principle of law.

Some courts are bound by their own courts (their predecessors; horizontal stare decisis, to reinforce consistency in their jurisprudence unless absolutely necessary for reasons of justice). However courts are never bound by courts lower than them.

Question 4

Define vertical stare dececis

Answer 4

Vertical stare decisis;

Means the regular system of precedent; the lower courts being bound by the decisions of the higher alongside the system of appealing.

Question 5

Define Horizontal stare decisis

Answer 5

Horizontal stare decisis;

Horizontal decicis began because in the past the House of Lords (now the supreme court) bound itself however whilst it led to consistency it caused jurisprudence to become embedded and inflexible. Thus since 1996 The House of Lords and now the Supreme Court has been able to depart rom its own earlier decisions however it does so rarely, but this allows for more flexibility.

Horizontal stare decisis is where the courts are bound by their own courts (on the same level) but by their predecessors or their own previous rulings.

Horizontal stare decisis pertains to how precedents from equal courts are treated. In the UK legal system, horizontal stare decisis is generally more flexible, allowing courts to depart from their previous decisions in specific circumstances.

So the UK High courts; the appellate level of the Family court, and the King’s Bench division and Chancery division binds the courts below and is bound to itself.

Question 6

What are the exceptions where the High Court can depart from previous ruling/legal precedent?

Answer 6

So the High court (both divisions) are typically bound exempt from three exceptions;

1. Where its own previous decisions conflict or
2. Where its previous decision has been implicit overruled by a supreme court or
3. Where its previous decision was made per incuriam (synonym for an error of reasoning)

And

1. Where it was an interim decision by two judges or
2. Where one of its previous decisions is inconsistent with a subsequent decision of the European Court of Human rights.

The Court of Appeal; both Criminal and Civil division bind those below it and bind to itself (normally) However the criminal division is usually more flexible with not binding to itself than the civil court.

Question 7

State some of the key cases you would use to depict the role of statutory interpretation in a common law jurisdiction

Answer 7

Fisher V Bell (1960)

Smith v Hughes (1960)

Alder v George (1964)

Brock v DPP (1993)

Question 8

State some of the key cases you would use to depict the development and application of common law principles

Answer 8

Carlill v Carbolic Smoke Ball Co (1892)

Donoghue v Stevenson (1932)

R v R (1991)

Belmarsh decision (2004).