The English Legal System - Precedent (Chapter 7) Flashcards
How is the principle called that courts have to adhere to previous decisions of a court?
Stare decisis
Which two features does stare decisis allow?
Consistency
Predictability
What does Ratio decidendi mean?
The ratio decidendi is the reason for a court’s decision and is part of the judgement delivered at the end of a case. Through analysis of the facts, the judge applies the appropriate rule or principle of law and makes ruling on the verdict of a case. Ratio decidendi is generally binding on lower courts and later judgments, unlike obiter dictum.
Which two elements can be ratio decidendi?
Only pronouncements of the law
Only those reasons which are necessary to reach the decision in the particular case
In court, what can be a legal pronouncement?
An official statement from a judge
That includes a ruling in a case or a response to a motion filed by an attorney
What is a major difficulty in ratio decidendi?
The inability of later courts or lawyers to discover the ratio of a particular case.
If a later court or judge takes up the same case, what might happen with the ratio? (3)
A later judge might formulate his own opinion as to the ratio of the earlier case, but there might be a difference in emphasis
The ratio may be narrower or wider than the opinion which was held by the judge in the earlier case
In a multiple judge court, each judge can give a different reason for his decision or give separate reasons for his decision, which can make it more difficult to ascertain the ratio
What are obiter dicta?
Legal reasons or pronouncements which are not necessary for the decision in the case and hence are not ratio and not binding
What is the purpose of obiter dicta?
The judge may speculate about what his decision would or might have been if the facts of the case had been different or if he had not been bound by the foregoing principle of stare decisis
Obiter dicta are not binding. How can they be made binding?
They are not binding but they can be influential or “persuasive” in later cases, in helping making up a judge’s mind on a novel or difficult point. If such dicta are used in later cases, they may become binding if they are made part of a later ratio decidendi.
What is a practice directions?
A statement published usually by a Head of Division under the inherent power of the High Court, the Supreme Court, and the Lord Chief Justice.
They elucidate the procedure to be followed regarding particular cases. Practice directions are not formal statutory authority but statements of the law and generally followed as if they were a precedent.
They apply to both criminal and civil jurisdictions.
There exist important practice directions for civil proceedings. Which?
Practice directions to the Civil Procedure Rules 1998
The power to make practice directions for the civil courts stems from which act? Who has the power?
Constitutional Reform Act, the power is with the Lord Chief Justice
He can also delegate the power to another judicial office holder
The House of Lords used to be bound to its own decisions, but there was a change of practice. When did it take place? What was the change?
- It stated that it would depart from its own decisions when it “appeared right to do so” (following a practice statement - not practice direction)
What is the difference between a practice statement and a practice direction?
There are no “practice statements”. When referring to the practice statement, the Practice Statement [1996] 1 WLR 1234 is meant. The Practice Statement was made in the House of Lords by Lord Gardiner on behalf of himself and the Lords of Appeal in Ordinary, that they would depart from precedent in the Lords in order to achieve justice.
A practice direction is a statement published usually by a Head of Division under the inherent power of the High Court, the Supreme Court, and the Lord Chief Justice.
Which principle of statutory interpretation did the Practice Statement weaken?
Stare decisis. Until the year 1966, the House of Lords in the United Kingdom was bound to follow all of its previous decisions under the principle of stare decisis, even if this created “injustice” and “unduly restrict(s) the proper development of the law” (London Tramways Co. v London County Council [1898] AC 375).
In which (more recent case) did the Supreme Court reinforce the importance and validity of the Practice Statement?
In Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 and the UKSC Practice Direction 3.
The SC reinforced that it’s in the “general interest of certainty in law”. However, this power has been used sparingly.
What are two examples where the Practice Statement was used?
1) Previous decision does not reflect modern public policy: Miliangos v George Frank Ltd, [1976] AC 443
2) Previous decision causes uncertainty: Murphy v Brentwood District Council [1991] UKHL, [1991] 1 AC 398
Miliangos v George Frank Ltd, [1976] AC 443 - in what relation is that decision known? What rule resulted from this decision?
The decision is an example where the Practice Statement was used. The House of Lords decided that an earlier decision - practice that a debt had to be paid in pound sterling at the date of the breach no longer reflects modern public policy. It allowed the debt to be repaid in a different currency. This was then known as the Miliangos rule.
Miliangos v George Frank Ltd, [1976] AC 443 - How does this case relate to Switzerland?
Miliangos was a Swiss textile company. George Frank Ltd. refused to pay. According to previous jurisprudence, debts had to be paid in pound sterling at the date of the breach. Due to currency exchange, George Frank Ltd. would have lost a lot of money. Hence, the House of Lords allowed the company to pay the debt in GBP, contradicting a 200-year old jurisprudence.
Miliangos v George Frank Ltd, [1976] AC 443 is a case where Practice Statement was used to depart from stare decisis because a previous decision did not reflect modern public policy. This argument has its limits. In a different case, these limits were set. Which was the case?
Arthur J S Hall v Simons [2002] 1 AC 615
The House of Lords held that changes in public perception alone would not suffice to warrant a departure from stare decisis, and there must be other significant changes in circumstances.
In which law can we find the rules by which the Court of Appeal can depart from stare decisis?
This is a trick question. There is no such law.
The exceptional situations where the Court of Appeal would disregard its own previous decision are held in Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293
According to Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293, in which situations can the Court of Appeal depart from its own earlier decisions?
the court is entitled and bound to decide which of two previous conflicting decisions of its own it will follow;
the court is bound to refuse to follow a decision of its own which cannot stand with a decision of the House of Lords (now Supreme Court - even if its decision has not been expressly overruled by the Supreme Court)
the court is not bound to follow a decision of its own if the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court (this rule does not allow the Court of Appeal to ignore decisions of the Supreme Court)
What does per incuriam mean? In connection to what is it known?
By lack of care or mistake - e.g. if a court has ignored or overlooked a binding statute or court decision
It’s known in connection to the three exceptional situations in which the Court of Appeal can depart from its own earlier decisions set in Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293
Does Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293 apply to the Criminal Division of the Court of Appeal?
This question has not been answered. However, in practice where the liberty of the subject has either been mis-applied or misunderstood, the Court of Appeal has applied the doctrine of stare decisis less rigidly than the Civil Division and has reconsidered its earlier decisions.
Is the High Court bound by its earlier decisions?
This depends on the case.
A) As a court of first instance: No. But they have strong persuasive authority and are usually followed.
B) as an appeal or review court: When two or more High Court Judges sit together as a Divisional Court of Appeal or Review, their decisions are binding on any other Divisional Court. Exception: When acting as a Divisional Court, the High Court may depart from earlier decisions of the High Court when it considers that the earlier decision was reached in error by the court (per incuriam).
C) as individual high court judges: Bound by decisions of higher courts including Divisional Courts of his Division, but not by a decision of another High Court Judge sitting alone (although he would treat it as strong persuasive authority).
Are decisions of individual High Court Judges binding to lower courts?
Are decisions from courts lower than High Court Judges binding to anyone?
Yes
No
