How To Determine Which Courts Decisions Are Binding

Question 1

The Doctrine of Precedent: a proposition in one case will be binding in a later case if it is.

Answer 1

1. A proposition of law,
2. Part of the ratio decidendi of the earlier case,
3. Decided in a court binding on the present court,
4. No relevant factual distinctions between the two cases.

Question 2

The general principles of how to determine which courts’ decisions are binding are:

Answer 2

• all courts are bound by superior courts (i.e., courts above them in the court hierarchy),
• some courts are bound by the previous decisions of their own courts (or their predecessors),
• courts are never bound by courts of a lower level.

Question 3

European Court of Human Rights (ECHR)

Answer 3

• not bound by its own previous decisions as it does not have a concept of stare decosis
• persuasive in matters relating to Convention Rights under s2 Human Rights Act 1998;
• decisions of courts in signatory countries do have an important effect on developing ECHR law and judges and commentators consider carefully what has been said by previous judges.
• does not raise single decisions to the theoretically high status which they have in English law.

Question 4

Court of Justice of the European Union (ECJ)

Answer 4

• persuasive in UK courts on Retained EU law matters,
• it is not bound by its previous decisions as it does not have a concept of stare decisis (based on civil law system),
• decisions of the courts of civil law countries do have an important effect in developing the law and are considered carefully.

Question 5

The Privy Council

Answer 5

• hears appeals from certain Commonwealth countries - not binding in English courts but highly persuasive because of the seniority of the judicial committees personnel

Question 6

UK Supreme Court (previously House of Lords until October 2009)

Answer 6

• superior court
• binds courts below but not itself
• final court of appeal (appellate)
• civil jurisdiction (court of appeal [civil division], high court [‘leap frog procedure’], Scotland and NI
• criminal jurisdiction (court of appeal) [criminal division], KBD (divisional court) and NI [not Scotland]