Lecture 2: Binding Precedent and Reading a Case Flashcards
What is Precedent?
Deciding what cases should and shouldn’t be followed
Stare Decisis - let the decision stand – like cases should be treated alike
Vertical Precedent – up and down the judicial hierarchy e.g. CA case relevant to SC and HC
Horizontal Precedent – on the same level e.g. CA
Why do we have Precedent?
Act of Settlement 1700 – judges made independent + not influenced by politics
Judges to ‘Discover and Declare the law that has always been’ – Declaratory in Theory – William Blackstone
Objective dispassionate study of the authorities - fiction
Judges made law not just declaring law
Precedent relates to the way that decisions in earlier cases are applied in subsequent cases:
- Cases with the same or similar material facts (facts which are legally relevant) should be decided in the same way
- Decisions made in the higher-level courts carry greater weight than those lower in the court hierarchy (bound by courts higher or equal to them)
- Distinctions made between importance of things that address the principle of law on which the decision is based (ratio decidendi - reason for the decision) and those issues that are peripheral (obiter dicta – things said in passing)
What is ratio decidendi:
Reason for the decision
What is obiter dicta:
Things said in passing
How do courts know what principle a case embodies?
They distinguish between the ratio of the judgement and the obiter dicta
Distinguish between the ratio of the judgement and the obiter dicta:
- A statement that is the ratio of an earlier case does not mean it is automatically binding on later cases
- The same for obiter statements
- Depends on the relationship between the court in which original decision made and case in which precedent applied
What is the ‘Ratio’?
- Ratio is not the outcome of the case (Decision)
- It is the rule of law used by the judge or judges to decide the legal problem raised by the facts of the case
- Isolate material (legally relevant) facts
- Distinguish from Obiter
- Up to the next court to decide – judicial discretion
Rules of Precedent:
Binding – Facts must be similar, court must follow hierarchy and ratio must have same/similar legal reasoning, must be applied in later cases
Persuasive – Facts similar but not directly analogous, facts analogous + ratio of court lower in hierarchy, facts analogous + obiter of court higher in hierarchy, facts analogous + dissenting judgement of court higher in hierarchy, facts analogous + legal rule outside of courts of England + Wales, no imposition on the courts to follow in later cases providing no binding precedent
Precedent of the Courts:
- Court of Justice of the EU – binding on EU law
- SC (formerly HL) – 1966 Practice Statement (Judicial Precedent) – not bound by previous decisions
- CA Civil & Criminal – 3 exceptionsYoung v Bristol Aeroplane Co Ltd) (Criminal wider discretion R v Gould)
- Div Courts and High Court – binding by own decisions subject to similar exceptions
- Div Courts not bound by HC
- HC Judge decisions binding on lower courts but not HC Judges
- Crown, County, Family, Magistrate’s – no precedent other than Crown where strong persuasion
Human Rights:
- European Convention on Human Rights (ECHR)
- Section 2(a) Human Rights Act 1998 – decisions of ECHR in relation to interpretation of ‘Convention Right’ to be taken ‘into account’ by SC (not binding)
Avoiding Stare Decisis:
- Overruling – overturns decision of lower court on different case
- Reversing – overturns decision of lower court on same case
- Disapproving – criticism
- Distinguishing – materially different on facts (Balfour v Balfour (1919) and Merritt v Merritt (1971))
- Subsequent statutory rule
- Per incuriam
Summary of Precedent:
Same legal issues = same reasoning
‘Ratio Decidendi’ = binding
‘Obiter Dictum’ = can be persuasive in later cases
Judges alter/avoid precedents by:
Overruling
Distinguishing
