Chapter 4 - The Doctrine of Precedent

Question 1

What are the learning outcomes for the chapter on the Doctrine of Precedent?

Answer 1

To read cases and identify the ratio decidendi and obiter dicta.
To explain and evaluate the role of the doctrine of precedent in the English legal system and compare it to civil law jurisdictions.
To understand and analyze whether a precedent is binding.
To apply and distinguish cases based on fact patterns.

Question 2

Why is it important to understand how case law is used?

Answer 2

Not every case is equally influential. Understanding why some cases have more weight than others, how ratio decidendi is identified, and how it differs from obiter dicta is crucial.

Question 3

What is a key skill for lawyers in common law jurisdictions?

Answer 3

Selecting and using appropriate cases to support legal arguments. This includes researching and citing relevant cases, as well as applying legal principles to specific facts.

Question 4

When does the doctrine of precedent apply?

Answer 4

It applies when a case must be decided the same way as an earlier one because the material facts are the same. The potentially binding part of the earlier case is called the ratio decidendi.

Question 5

What are the principles of fairness that the doctrine of precedent helps uphold?

Answer 5

Consistency: Like cases should be treated alike.
Certainty: Rules should be applied predictably.
Proportionality: Punishment should fit the crime.

Question 6

How does the doctrine of precedent relate to the public’s perception of the law?

Answer 6

When the law is uncertain, public respect for the law diminishes, as unpredictability benefits only lawyers, not the people seeking justice.

Question 7

What is the role of Parliament in relation to case law?

Answer 7

Parliament can legislate to change the law if a precedent is deemed wrong or outdated. However, this process can take time, leading judges to find ways around problematic precedents.

Question 8

What are the potential consequences of uncertainty in the law?

Answer 8

It can make legal outcomes unpredictable and create an environment where only lawyers benefit from the lack of clarity. It erodes public confidence in the legal system.

Question 9

How is the division of labor between judge and jury relevant to the distinction between law and fact?

Answer 9

Questions of law were historically decided by judges, while juries determined questions of fact. However, many issues present mixed questions of fact and law, such as determining negligence.

Question 10

Explain how the concept of ‘consuming’ was a point of law in DPP v Johnson.

Answer 10

The case revolved around whether injecting alcohol into the body, even unknowingly, constituted ‘consumption’ under the Road Traffic Act 1988. This involved statutory interpretation of the term ‘consume.’

Question 11

What are the three main tasks of a judge when giving judgment?

Answer 11

Identify the material facts of the case.
State the relevant law.
Apply the law to the facts to reach a decision.

Question 12

Why is identifying the ratio crucial for lawyers?

Answer 12

While the case outcome matters to the involved parties, it’s the ratio decidendi, the underlying legal principle, that sets the precedent for future cases.

Question 13

Explain Sir Rupert Cross’ definition of ratio decidendi.

Answer 13

It’s any rule of law the judge explicitly or implicitly relies on to reach their conclusion, considering their reasoning and applied to the material facts.

Question 14

What factors contribute to the difficulty of finding the ratio in a case?

Answer 14

Judgments can be lengthy, judges may offer multiple reasons, and appellate courts may have differing opinions among judges, leading to potentially unclear or conflicting ratios.

Question 15

When is the ratio decidendi of a case determined?

Answer 15

While discussions about a case’s ratio occur continuously, subsequent cases can clarify or challenge its interpretation. Later cases can influence, but not definitively determine, the understanding of a previous case’s ratio.

Question 16

Explain the interplay of narrow and wide ratios with subsequent cases.

Answer 16

The choice of a narrow or wide ratio in an earlier case can significantly impact how it’s applied to later cases. Narrow ratios are more easily distinguished, while wider ratios have broader applicability.

Question 17

Explain how Rylands v Fletcher exemplifies narrow and wide ratios.

Answer 17

By excluding the contractor’s negligence as a material fact, the House of Lords created a wider ratio based on strict liability for escapes of harmful things, expanding its potential application.

Question 18

What are some key features of obiter dicta?

Answer 18

They are not binding but can be persuasive, depending on the judge’s reputation, the court’s seniority, and the circumstances. They can provide insights into how a judge might have decided under different facts or if not bound by precedent.

Question 19

Explain the fine line between a wide ratio and an obiter dictum.

Answer 19

A later court can choose to adopt a wider interpretation of a previous case’s ratio, making it binding, or deem aspects of the judgment as obiter dicta, rendering them non-binding.

Question 20

Explain the case of Esso v Commissioners in the context of difficulty in finding the ratio.

Answer 20

The judges in the House of Lords provided multiple and conflicting reasons for their decision, making it difficult to discern a clear ratio decidendi.

Question 21

How does the case of Crossley v Rawlinson illustrate identifying obiter dicta?

Answer 21

The judge’s expressions of reluctance about the outcome and comments on the plaintiff’s good intentions, while not essential to the legal decision, constituted obiter dicta.

Question 22

Explain dissenting judgments in relation to obiter dicta.

Answer 22

A judge’s opinion in a dissenting judgment, where they disagree with the majority, is generally considered obiter dictum, as it doesn’t form part of the binding precedent.

Question 23

How did DPP v Johnson illustrate the evolution of ratio and obiter?

Answer 23

The ratio established that injecting alcohol is ‘consumption.’ However, the judges’ obiter dicta on inhalation suggested a potential future expansion of the ratio to include other forms of ingestion.

Question 24

Why is understanding precedent crucial for studying contract and tort law?

Answer 24

These areas of law heavily rely on common law principles that evolve through the application of the doctrine of precedent.

Question 25

What is the general principle governing which courts’ decisions are binding?

Answer 25

Courts are bound by decisions of courts above them in the hierarchy. They are not bound by decisions of lower courts or, generally, by their own previous decisions unless specific exceptions apply.

Question 26

What was the significance of Cassell v Broome?

Answer 26

It reinforced the principle that lower courts must ‘loyally’ follow decisions of higher courts, emphasizing the importance of the court hierarchy in applying precedent.

Question 27

How does the Supreme Court approach its own previous decisions?

Answer 27

The 1966 Practice Statement grants the Supreme Court (formerly House of Lords) the flexibility to depart from its prior rulings, prioritizing justice, legal development, and certainty, as affirmed in Austin v Southwark LBC.

Question 28

What factors guide the Supreme Court’s use of the Practice Statement?

Answer 28

It exercises this power sparingly, requiring more than just a previous decision being wrong. Factors include injustice caused by the precedent, hindrance to legal development, or uncertainty created by the previous decision.

Question 29

How does R v G illustrate the Supreme Court’s use of the Practice Statement?

Answer 29

The House of Lords overturned its earlier decision in Caldwell, deeming the objective test for recklessness in criminal damage unjust, as it didn’t consider the defendant’s actual foresight.

Question 30

How did Austin v Southwark LBC demonstrate the Supreme Court’s reluctance to disrupt settled understandings?

Answer 30

It chose not to overrule Thompson, despite reservations, because the interpretation of the Housing Act section in Thompson had been relied upon for a considerable time.

Question 31

What concerns does the Supreme Court consider regarding retrospectively changing the law?

Answer 31

It recognizes the potential for disturbing existing contracts, property rights, and tax arrangements. Retroactive changes could unfairly penalize individuals who acted based on a previous understanding of the law.

Question 32

What are the exceptions to the Court of Appeal (Civil Division) being bound by its own decisions?

Answer 32

Established in Young v Bristol Aeroplane, they include conflicting prior decisions, implicit overruling by the Supreme Court, per incuriam decisions, interim decisions by two judges, and inconsistency with ECHR rulings.

Question 33

Explain the Court of Appeal’s (Criminal Division) approach to precedent.

Answer 33

It generally follows the Civil Division’s rules but has broader discretion when individual liberty is at stake, as highlighted in R v Gould.

Question 34

What are the implications of a decision being made per incuriam?

Answer 34

A per incuriam decision is one made ‘through carelessness,’ specifically due to overlooking a binding authority or relevant statute. It allows a court to disregard a previous flawed decision.

Question 35

How does the High Court approach precedent?

Answer 35

High Court judges, when acting as a court of first instance, are not bound by each other’s decisions, but they strive for consistency. Their rulings bind the County Court. The Divisional Court of the High Court, however, is bound by its own previous decisions.

Question 36

Explain the Crown Court’s approach to precedent.

Answer 36

It is not bound by its own decisions but is strongly persuaded by them in the interest of consistency in criminal matters.

Question 37

Why are County, Family, and Magistrates’ Courts not bound by their own decisions?

Answer 37

They are considered ‘inferior courts’ and their decisions are not typically recorded or reported, making a system of precedent impractical.

Question 38

Describe the CJEU’s approach to precedent.

Answer 38

Unlike common law systems, the CJEU, operating within a civil law framework, is not bound by its previous decisions. However, it values legal certainty and generally follows precedent unless a change in approach is warranted.

Question 39

Explain how Keck v Mithouard reflects the CJEU’s approach to precedent.

Answer 39

The Court explicitly explained its reasons for departing from previous case law on the free movement of goods, demonstrating its willingness to adapt while still valuing legal certainty.

Question 40

How do courts use the concept of distinguishing to avoid applying precedent?

Answer 40

They identify material differences in facts or legal principles between the current case and a cited precedent, justifying a different outcome without explicitly overturning the prior decision.

Question 41

How did Corkery v Carpenter demonstrate distinguishing based on statutory interpretation?

Answer 41

Lord Goddard distinguished Corkery from cases that excluded bicycles from the definition of ‘carriage’ because those cases interpreted different statutes with different wording.

Question 42

What are some factors considered when distinguishing Corkery v Carpenter in hypothetical scenarios?

Answer 42

The potential danger to the public posed by the defendant’s actions and the purpose of the Licensing Act are key considerations.

Question 43

How does the hypothetical example of Emily and the skateboard illustrate the process of distinguishing?

Answer 43

The magistrates would need to decide whether the ratio of Corkery applies to a skateboard. Arguments considering dictionary definitions, the purpose of the law, and potential public danger would all be relevant.

Question 44

Explain how Stilk v Myrick and Williams v Roffey Brothers highlight the evolution of legal principles through precedent.

Answer 44

While affirming the principle of existing contractual duty not being consideration from Stilk, Williams refined it by recognizing the ‘practical benefit’ as valid consideration for contract variations.

Question 45

What are the key differences between overruling, departing, and reversing a precedent?

Answer 45

Overruling involves a higher court declaring a lower court’s decision incorrect in a later case. Departing involves a court choosing not to follow its own precedent using established exceptions. Reversing occurs when a higher court changes a lower court’s decision in the same case on appeal.

Question 46

Explain the significance of Central London Property Trust Ltd v High Trees House Ltd.

Answer 46

Denning J’s obiter dictum on landlords accepting reduced rent, though non-binding, was later adopted as the doctrine of promissory estoppel, showcasing the impact of persuasive authority.

Question 47

How can Privy Council decisions be persuasive in English courts?

Answer 47

While not binding, Privy Council judgments, particularly those from common law jurisdictions, can hold significant weight due to the seniority and expertise of the judges involved. Attorney-General for Jersey v Holley influenced English law on provocation.

Question 48

What is the role of the Human Rights Act 1998 in relation to precedent?

Answer 48

It requires UK courts to ‘take into account’ judgments of the European Court of Human Rights when dealing with Convention rights, making them highly persuasive, though not strictly binding.

Question 49

What is the declaratory theory of common law, and why is it considered outdated?

Answer 49

It posits that judges merely declare existing law, not create new law. This view is now largely rejected, as judges, particularly in higher courts, actively shape and develop the law.

Question 50

How does Re A (Children) demonstrate judges making new law?

Answer 50

In the absence of precedent or legislation, the judges had to decide the legality of separating conjoined twins, a novel situation that required them to create new legal principles.

Question 51

Why was the House of Lords’ decision in R v A (No 2) controversial?

Answer 51

Critics argued that their interpretation of the Youth Justice and Criminal Evidence Act 1999, allowing questioning on sexual history in rape cases, contradicted Parliament’s intention to protect victims.

Question 52

What controversy surrounded the Supreme Court’s judgment in R (Miller) v The Prime Minister?

Answer 52

Critics contended that the court overstepped its bounds by ruling on the prorogation of Parliament, traditionally considered a non-justiciable prerogative power.

Question 53

What are some factors that make judges reluctant to make new law?

Answer 53

Lord Bingham outlined situations like disrupting existing legal understandings, requiring detailed legislative codes, addressing issues of social policy without consensus, acting when Parliament is already addressing the issue, or dealing with matters outside typical judicial experience.

Question 54

What is a ‘civil law system’ in contrast to a common law system?

Answer 54

Civil law systems are generally codified and based on Roman law, with the judiciary’s role focused on applying the code, as opposed to common law systems which rely on precedent and judicial interpretation.

Question 55

What are the key advantages and disadvantages of civil law and common law systems?

Answer 55

Common law offers consistency and certainty through precedent, but can be rigid. Civil law allows for flexibility and adaptation through code amendments, but can be less predictable.

Question 56

How does the CJEU’s approach to precedent exemplify a balance between consistency and flexibility in civil law systems?

Answer 56

While not bound by its prior decisions, the CJEU generally follows precedent to ensure legal certainty. It explains its reasoning when departing from previous cases, as seen in Keck v Mithouard.