1. Doctrine of Precedent

2. Key Questions What is precedent? (stare decisis) Why have it?
How does it work, i.e “who binds who” and “when”?
What does ratio decidendi mean? And obiter dictum?
How does European law impact upon the rules of precedent?

3. What is the doctrine of precedent?
Often called the Doctrine of Stare Decisis
Literally means…’stand by things that have been decided’
Put simply – courts in the UK are bound by the decisions of earlier courts on similar issues unless they can be ‘distinguished’.

4. Why have it?
Not all systems have this – characteristic of common law jurisdictions where judgments are a major source of legal principle
Designed to ensure consistency and legal certainty
Reflects our hierarchical court structure – lower courts more constrained than superior courts

5. How does it work?
Basic rule is that precedents created by a higher court bind lower courts
House of Lords decisions therefore bind all lower courts
Does the House of Lords bind itself?
Yes; but see also the [1966] Practice Direction
Benefits and problems
Re 2
This means that where a lower court is hearing a case about an issue on which the HL has ruled – the lower court is not free to depart from the HL decision or to overrule the HL. Must follow the HL precedent.
It should also be noted that higher courts can overrule a previous decision of a lower court. We’re not taking here about situations on appeal – these could be entirely different cases but about the same legal principles/legislation etc…. (Decision of earlier court can be REVERSED on appeal – but is OVERRULED when case is decided differently by a later court.
Re 3:
For many years the HL held itself to a rule that it would not depart from or overrule previous decisions of the HL.
HL preferred to continue following previous HL precedents even though the judges may have come to disagree with the previous decision or it involved an unjust ruling.
HL preferred to wait for Parliament to legislate to correct the problem.
This led to injustice and to fossiling of legal principle. It also led to HL resorting to spurious/tenuous grounds for distinguishing earlier cases t9o avoid the rule of precedent.
1966 HL issued a Practice Statement – while they would normally treat previous decisions of the House as binding – they were free to depart from them where it appeared right to do so.
Although commentators disagree – there are about 10 clear cases since 1966 where the HL has simply overruled a previous precedent.

6. Application of the doctrine to the Court of Appeal
Court of Appeal is bound by House of Lords
But what if the HL decision is per incuriam?
In general the CA is also bound by previous CA decisions… EXCEPT:
Conflicting judgments
Previous decision overruled by HL
Per incuriam decisions
EWCA judgments in NI and visa-versa (persuasive)
CA is also bound by the rule of precedent. In general – CA is bound by decisions of the HL.
One CA overruled an earlier HL decision on the grounds that the previous decision was given per incuriam – in error.
HL took it v badly! However – attitudes have softened more recently from a position whereby the HL could never be viewed as having decided in error….
A failure by HL to consider a key precedent might lead to a per incuriam conclusion.
There has always been a lot of controversy about whether the CA is bound by its previous decisions. Lord Denning was a great advocate of greater freedom to depart from previous decisions even when he was the judge giving the decision!
HL resisted it trenchantly and overruled him consistently. However gradually a series of exceptions to this rigid position evolved. They are:
Re Conflicting rulings:
Where there are inconsistent decisions of the CA in previous cases – a later CA will have to choose which precedent to follow and overrule the other.
Where the HL has overruled a CA decision – a later CA is bound to follow the HL decision
The issue of ‘per incuriam’ is where a previous decision was given in error – there must be clear evidence that the previous decision was made in error – ie, statute misinterpreted or omitted from the analysis etc…. It is not enough that the later CA would simply have decided the case differently.
persuasive issue – strictly speaking the NI CA is not bound by the E&W CA – and vice versa – however they are considered to be strongly ‘persuasive’ precedents and only departs if there is v good reason.

7. A closer look at how the doctrine works in practice…..
Courts are only bound by the previous decision in similar cases unless they can be distinguished or are per incuriam.
Must identify the binding part of the earlier decision & assess whether the two cases are in fact similar.

8. Identifying the Binding ‘Decision’
When we talk about courts being bound by previous precedent – they are bound only by the ratio decidendi of the previous decision.
RD of a case can be defined as the material facts and the decision thereon. In other words, it is the core reason for the decision.
Defining the concept of a ratio in abstract terms is easy(ish), locating it in a specific case can be another matter!
This process is a key legal skill and takes years to refine – it will be fundamental to the success of your legal studies
Complex cases can have multiple ratios – some v specific and others much more general principles of law. There may be ratios concerning rules of statutory interpretation and ratios concerning the substance of the legislation itself.

9. The concept of ‘obiter dictum’
Obiter Dictum is regarded as something said “by the way” but is not central to the core legal reasoning (i.e., the ratio) that determines the case.
Obiter usually arises in course of lengthy judgments
That part of the judgment deemed to be ‘obiter’ does not bind subsequent courts – the doctrine of precedent only applies to the ratio.
Comments made in Obiter are usually comments about ancillary points of law or issues that are not completely central to the core part of the decision.
However, students and lawyers should not dismiss the obiter as entirely irrelevant – sometimes things said in obiter – particularly by v senior courts – can provide the basis for the development of new legal principles which are picked up by subsequent judges hearing novel or v difficult cases.

10. Problem of divergent judicial opinions….
Finding the ratio can become much more complex when dealing with decisions of senior courts where each judge delivers a separate decision….
‘Majority’ and ‘dissenting’ decisions
Majority may agree on the decision but for different reasons
One of the key features of UK senior courts is that each judge gives a separate judgment.
So you’ll get a majority and possibly one or more dissenting judgments. Senior courts sit in 3-9 judges – the majority opinion determines the case. The dissenting decisions are also published in full.
You’ll come to know all the judges and their individual styles over the coming years – E&W and NI especially.
You’ve already seen Lord Denning!
However, while there will be a majority decision – finding the ratio can be v complex in this context.
The majority may all come to the same conclusion re how the case should be decided – but for different legal reasons – so what is the ratio of the case???
Sometimes a case will be cited to you as setting down a specific legal principle – and the ratio will be clear. However, there are many other instances where you will be considering the reasoning of each judge in detail – because complex questions being addressed, different lines of legal reasoning employed by each judge, this is how lawyers understand the law and how it is likely to develop in the future.
Even dissenting decisions are studied carefully – especially the dissenting decision of a senior judge. Because the doctrine of precedent allows for overruling – a powerful argument by a dissenting judge can be v pursuasive in a later case.

11. Can the earlier case be ‘distinguished’?
Doctrine of precedent only binds a court where the material facts are similar to an earlier case.
If the material facts of the previous case can be ‘distinguished’ then its ratio will not bind the later court.
The process of distinguishing cases is another key element of legal reasoning – just like the process of identifying the ratio.
Legal students and lawyers have to understand how to separate out the relevant from irrelevant facts – if the material facts of the present case are strongly similar to the material facts on which the earlier ratio was founded – then the case cannot be distinguished and it is binding.
However, if the material facts of the present case can be distinguished from the previous case – then the court is not bound to follow the earlier ratio.
The process of shifting the relevant from the irrelevant may sound straightforward – but it can be a tricky process.
For example – the colour of dress worn by a murder victim may be mentioned by the previous judge in a long and detailed judgment – but the question is – is it a material fact??? Much will depend on the circumstances of the case – both legal and factual. If for example the case is about an alleged serial killer who only kills women in red dresses – then the issue of clothing may be a material fact concerning the presence of a serial killer and the rules of evidence governing the case. Normally the police cannot bring forward evidence of previous convictions in criminal trials – except in exceptional circumstances – one of them being where a serial killer is at work.
Judges are v keen on the process of distinguishing earlier cases.
Although they may not wish to be constrained by the previous ratio, they may be reluctant to overrule the previous case or find that it was decided per incuriam. So they may be very receptive to the finding grounds on which the previous case can be distinguished. Basically lawyers/judges arguing that there is some vital fact about the present case that was absent or different in the earlier case and it goes to the legal reasoning.

12. UK Precedent and EU law EU law enjoys primacy over domestic law
The HL must therefore depart from inconsistent UK precedents in order to give effect to EU law (see, e.g., R v Secretary of State for Transport, ex p Factortame [1991] 1 AC 603)
Lower courts are also able to depart from the rule of precedent where a previous UK court’s decision is at odds with a decision of ECJ ruling or EU legislation.
Factortame – very long established legal principle that courts could not give an injunction against the Crown – Crown could not be stopped from doing something as an interim measure prior to full hearing of case. ECJ ruling said that domestic courts must give effect to appropriate remedies to enable litigants to enforce EU law properly in domestic disputes. If that meant giving injunctive relief where Crown has been accused of breaching EU law – then the remedy should be available. HL had to depart from decades of UK HL precedents on this issue to comply with EU law.

13. The impact of the Human Rights Act 1998
Domestic precedents must yield to conflicting human rights requirements when the case is heard in the court that established the precedent: see, e.g., Ghaidan v Godin-Mendoza [2004] 3 All ER 411
But what if the issue arises in a “lower” court?: Lambeth LBC v Kay; Leeds CC v Price [2006] 4 All ER 128 – lower court should follow precedent of higher court save in extreme circumstances
So the CA can depart from a previous decision by CA where the previous decision is inconsistent with the HR Convention.
However, except in extreme circumstances, lower courts are still bound by decisions of higher courts which even where they are at odds with HR Convention.
Obviously HL remains free to overrule or depart from previous decisions of lower courts where HR issues arise.

14. Concluding comments…
Understanding the legal ‘weight’ of a precedent or decision
Mastering the skills of reading judgments!
It should by now be clear that while the doctrine of precedent provides an element of consistency and control over judicial decision making and the evolution of the common law – judges also have a considerable degree of flexibility and choice about whether they ‘choose’ to be bound by previous decisions.
The weight of previous precedent will also have a bearing on the process – if a legal precedent has been followed on numerous occasions over many years – then judges will be v cautious about overruling or departing from it. It will remain undisturbed for a long time – and will probably require HL to depart.
The weight of decision will also be affected by the size of the majority – the strength of the opposition – the seniority of the court and whether it was decided as a “reserved” decision – and not on spur of the moment.
If the majority all came to the same conclusion but through v different lines of legal reasoning – that can weaken the pursuasive effect of a precedent
Last but not least – must emphasise the need to master the skill of reading judgments.
Need to become familiar with the subtleties of how decision was made and the nuances of legal reasoning. Just reading the headnote or only knowing the bottom line – will come against you.

15. Take a break…

16. A precedent case study Negligence
Hill v Chief Constable of West Yorkshire [1989] AC 53
How it was subsequently followed
What European law said
How the precedent has survived

17. What is negligence? Tort law Duty of care; breach; causation
Duty of care? Foreseeability of harm; proximity of relationship between P and D; fair, just and reasonable to impose liability (Caparo Industries v Dickman [1990] 2 AC 605)

18. The Hill case - facts
Plaintiff was mother of the ‘Yorkshire Ripper’s’ last victim
Argued that the police had been negligent when investigating the Ripper’s activities and that this had caused their daughter’s death
Did the police owe a duty of care? (note that the test different at the time of the case, i.e. Caparo post-dates Hill)

19. 1989 Hill Ruling Police did not owe a duty of care
No proximity of relationship
And arguments of “public policy” – resources; time; public less well served; etc
Court followed the decision in Rondel v Worsley [1967] 3 All ER 993

20. 4 years later, a similar case arose Osman v Ferguson
Teacher “formed an unhealthy attachment to a 15-year-old male pupil”
Patterns of harassment and the police had been in contact with the teacher and with the boy
Teacher then shot the boy and killed his father
Boy and mother sued: but did the police owe a duty of care?

21. Osman v Ferguson [1993] 4 All ER 344
Court held that it was arguable that sufficient proximity existed
But concluded that no duty of care was owed because of the rule of public policy in Hill
As a result of these cases, the Police effectively enjoyed an “immunity” from suit and did not owe legal duty of care.
New cases were therefore “struck-out” as disclosing no reasonable cause of action. This meant that cases did not go to a full hearing

22. Osman went to ECtHR…
ECtHR found that the immunity violated Article 6 ECHR (Osman v UK [1999] 1 FLR 193)
Although the ECtHR has since changed its mind in part; UK courts have become a little bit less absolute about duties of care & the police

23. So what about the decision in Hill?
It is still a precedent, although one that will now be followed much more on a “case-by-case” basis, rather than on a “category of case” basis (categories being apt to give rise to immunities). And note, e.g., the demise of Rondel v Worsley
For example: in Brooks v Metropolitan Police Commissioner [2005] 2 All ER 489 – Hill applied, but with modification (see, in particular, the opinion of Lord Steyn at paras 27-30)

24. Conclusions
Precedent, for some, defines the working of the common law system
And flexibility, for others, defines the common law
Hill is perhaps an example of both assumptions in operation