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Presentation on theme: "THE DOCTRINE OF PRECEDENT"— Presentation transcript:

Unit 5

2 Preview Common law: precedent Hierarchy of English courts
Stare decisis Ratio decidendi Obiter dicta Distinguishing, overruling and reversing Law reports Legal terms Exercises

3 Common law Consists of substantive law and procedural rules that are created by the judicial decisions made in the courts Although legislation may override such decisions, the legislation itself is subject to interpretation and refinement in the courts

4 Precedent A judgement or decision of a court, normally recorded in a law report, used as an authority for reaching the same decision in subsequent cases

5 The Hierarchy of English Courts

6 Civil cases European Court of Justice The Supreme Court
Court of Appeal (Civil Division) High Court County Court (Magistrates Court)

7 Criminal Cases European Court of Human Rights The Supreme Court
Court of Appeal (Criminal Division) Crown Court Magistrates’ Court

8 Court of Justice of the EU
Decisions of the Court of Justice of the EU: binding on all other courts in Member States

9 The Supreme Court Practice Statement (1966): The House of Lords (since 2005: the Supreme Court) no longer bound by its past decisions

10 Courts of Appeal (Criminal and Civil Divisons)
Bound by decisions of the Supreme Court bound to follow past decisions of their own, with limited exceptions

11 The High Court Divisional courts: 1. Queen’s Bench Division (criminal appeals and judicial review), 2. Chancery Division and 3. Family Division Bound by the Court of Appeal and the Supreme Court Civil divisional courts – bound by their previous decisions Queen’s Bench Division – more flexible

12 The Crown Court Bound by all the courts above it
Its decisions do not form binding precedents Not bound by its own decisions

13 Magistrates’ and county courts
Inferior courts Bound by the High Court, Court of Appeal and the Supreme Court Their decisions - not reported and cannot produce binding precedents, or even persuasive ones Not bound by their own decisions

14 Stare decisis Stare decisis (et non quieta movere) = stand by things decided (and do not unsettle the established) Supports the idea of fairness and provides certainty in the law

15 Stare decisis The principle of binding precedent: decision of a higher court is binding on a lower court, i.e. the decision must be followed, and in the course of a trial the judges must refer to existing precedents

16 Stare decisis Judges will consider decisions made in a lower court, but they are not bound to follow them A rule set by a court must be applied if it is to the point – relevant or pertinent

17 Ratio decidendi A case involves many facts and issues of evidence
The decision itself does not actually set the precedent The precedent is the legal principle which the judge relied on in determining the outcome of a case

18 Ratio decidendi: “the reason for deciding”;
The basis for a precedent The principle or rule of law on which a court’s decision is founded

19 Ratio decidendi At the end of a case – judgement: a speech by the judge giving the decision and explaining the reasons for the decision

20 Ratio decidendi In a judgement, the judge is likely to:
Give a summary of the facts of the case Review the arguments given by advocates Explain the principles of law he is using to come to the decision These principles: ratio decidendi

21 Ratio decidendi ‘Any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusions’ (Sir Rupert Cross)

22 Obiter dictum/dicta “something said in passing”
A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be persuasive)

23 Obiter dictum/dicta “Strictly speaking an ‘obiter dictum’ is a remark made or opinion expressed by a judge, in his decision upon a case, ‘by the way’ – that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument analogy, or suggestion...

24 Obiter dictum/dicta In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as ‘dicta’ or ‘obiter dicta’, these two terms being used interchangeably” (William M. Lile et al, Brief Making and the Use of Law Books)

25 Ratio/obiter A major problem: to divide the ratio decidendi from the obiter dicta, as the judgment is usually in a continuous form, without any headings specifying what is meant to be part of the ratio decidendi and what is not

26 Judgements There may be more than one speech at the end of a case, depending on the number of judges In appeal courts and the Supreme Court cases are heard by at least 2 judges and up to a maximum of 7 judges

27 Judgements It is common that one judge gives the judgment and the other judges say ‘I agree’ When there is a complicated point of law, more than one judge may want to explain his legal reasoning: more than one ratio decidendi

28 Original precedent If the point of law in a case has never been decided before, whatever the judge decides will form a new precedent: original precedent As there are no past cases to base a decision on, the judge is likely to look at cases which are the closest in principle and may decide to use similar rules: reasoning by analogy

29 Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995)
The question whether the interference with television reception by a large building was capable of constituting an actionable private nuisance

30 Hunter v Canary Wharf Facts of the case
In 1990 the Canary Wharf Tower , 250 m high and over 50 m square, was built The claimant and hundreds of others suing with her, claimed damages from the defendant for interference with reception of TV broadcasts in their homes The interference was claimed to have been caused by the tower

31 Hunter v Canary Wharf Extract from the judgement
Lord Irving (counsel for the defendants) submits that interference with television reception by reason of the presence of a building is properly to be regarded as analogous to loss of aspect (view). To obstruct the receipt of television signals by the erection of a building between the point of receipt and the source is not in law a nuisance.

32 Hunter v Canary Wharf Extract from the judgement
In Aldred’s Case (1611) Wray CJ what he had said in Bland v Moseley: “for prospect, which is a matter only of delight and not of necessity, no action lies for stopping thereof, and yet it is a great recommendation of a house if it has a long and large prospect …But the law does not give an action for such things of delight”.

33 Hunter v Canary Wharf: Extract from the judgement
‘I accept the importance of television in the lives of very many people. However, in my judgement the erection or presence of a building in the line of sight between a television transmitter and other properties is not actionable as an interference with the use and enjoyment of land. The analogy with loss of prospect is compelling.

34 Hunter v Canary Wharf Extract from the judgement
The loss of a view, which may be of the greatest importance to many householders, is not actionable and neither is the mere presence of a building in the sight line to the television transmitter’

35 Persuasive precedent A precedent that is not binding on the court, but the judge may decide that it is a correct principle so he is persuaded that he should follow it Sources: courts lower in the hierarchy, obiter dicta, dissenting judgements, decisions of courts in other countries

36 Avoiding precedent Distinguishing Overruling Reversing

37 Distinguishing The judge finds that facts of the case he is deciding are sufficiently different to draw a distinction between the present case and the previous precedent; not bound by the previous case

38 Overruling A court in a later case states that the legal rule decided in an earlier case is wrong A higher court may overrule a decision by a lower court (The Supreme Court overruling a decision of the Court of Appeal, or where the highest court (ECJ or the Supreme Court) overrules its past decision

39 Reversing A court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case The Court of Appeal may disagree with the legal ruling of the High Court; in this situation they reverse the decision of the High Court

40 Law Reports The development and application of the common law system pivots upon the existence of a comprehensive system of reporting cases The Law Reports – the most authoritative and frequently cited set of reports

41 History of Law Reports Law reports: since 13th c.; many early reports – very brief and not always accurate Reports 1275 to 1535 called Year Books, short reports of cases, usually written in French cases reported by individuals who made a business out of selling the reports to lawyers

42 History of Law Reports 1865 the Incorporated Council of Law Reporting set up – controlled by the courts Reports became accurate, with the judgment noted down word for word

43 Law Reports Cases are not always reported in the year that they are decided so a case citation will refer to the volume and year in which the case was published, e.g. Meah v Roberts, [1978] 1 All ELR 97

44 The structure of a law report
1. catchwords – indicate what the case is about 2. headnote – a summary written by the reporter 3. majority judgements, dissenting judgements

45 Underlying principles
Law should be stable, secure and predictable Similar cases should be decided in the same way and the decision should rely on the established tradition

46 Advantages of precedent
Certainty Consistency and fairness in the law Precision Flexibility Time-saving

47 Certainty Because the courts follow past decisions, people know what the law is and how it is likely to be applied in their case

48 Consistency and fairness
It is seen as just and fair that similar cases should be decided in a similar way The law must be consistent if it is to be credible

49 Precision As the principles of law are set out in actual cases the law becomes very precise It is well illustrated and gradually builds up through the different variations of facts in the cases that come before the courts

50 Flexibility Law can change since the highest courts can overrule cases
Distinguisting cases also give all courts some freedom to avoid past decisions and develop the law

51 Time-saving Where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation

52 Disadvantages Rigidity Complexity Illogical distinctions
Slowness of growth

53 Rigidity Lower courts must follow decisions of higher courts: bad decisions made in the past may be perpetuated Changes in the law will only take place if parties have the courage, persistence and money to appeal their case

54 Complexity Half a million reported cases – not easy to find all the relevant case law even with computerised databases Judgements: often very long with no clear distinction between obiter dicta and ratio decidendi

55 Illogical distinctions
The use of distinguishing to avoid past decisions can lead to ‘hair-splitting’ so that some areas of the law have become very complex Differences between some cases may be very small and appear illogical

56 Slowness of growth Judges may be aware that some areas of law are unclear or in need of reform, but they cannot make a decision unless there is a case before the courts to be decided Only 50 cases reach the Supreme Court each year; there may be a long wait for a suitable case to be appealed

57 Activity Search at least one website address and find a recent law report: gives summaries of important cases in its Daily Law Notes section has cases from the Court of Appeal and below

58 Legal terms Binding Obvezujući
Jurisdiction: 1) the power of the court to hear and decide a case or make a certain order; 2) the territorial limits within which the jurisdiction of a court may be exercised; 3) the territorial scope of the legislative competence of Parliament nadležnost

59 Legal terms Ruling: a decision made by someone with official authority such as a judge, magistrate, arbitrator or chairman Presuda, sudska odluka, službeno mišljenje državnog tijela

60 Legal terms overrule v. 1) to reject an attorney's objection to a question of a witness or admission of evidence. By overruling the objection, the trial judge allows the question or evidence in court. If the judge agrees with the objection he/she "sustains" the objection and does not allow the question or evidence.

61 overrule 2) to decide (by a court of appeals) that a prior decision on a legal issue was not correct, and is therefore no longer a valid precedent on that legal question

62 overrule To annul, to make void. This word is frequently used to signify that a case has been decided directly opposite to a former case; when this takes place, the first decided case is said to be overruled as a precedent, and cannot any longer be considered as of binding authority

63 Exercise Replace the underlined words and phrases with the following:
Binding precedent, bound, cite, consider, distinguish, override, rely on/apply, revised

64 Binding precedent, bound, cite, consider, distinguish, override, rely on/apply, revised
1. The courts are compelled to apply the precedent set by a higher court. 2. During the court case the judge will evaluate all the evidence and the legal issues. 3. Judges are required to follow the ratio, or reasoning, in relevant previous decided cases

65 Binding precedent, bound, cite, consider, distinguish, override, rely on/apply, revised
4. However, the judge may note a case cited as precedent by counsel as materially different from the one at trial 5. It is, however, the role of counsel to refer to relevant previous case decisions 6. The principle of following the decisions of higher courts is fundamental to case law.

66 Binding precedent, bound, cite, consider, distinguish, override, rely on/apply, revised
7. The Law Reports series are the most frequently cited reports because the text is edited by the trial judge. 8. New legislation may pay no attention to the decision of an earlier court judgment.

67 Exercise 2 VERB NOUN ADJECTIVE cite apply precede persuasion bind

68 Exercise 3 Complete the sentences with appropriate words from the table above: 1. Well, that decision of the Appeal Court is going to be on the case we’ve got at trial just now. 2. We need to convince the judge that the rule in Meah v Roberts is to this case.

69 Exercise 3 3. Can you check the case.....? I think the year’s wrong.
4. Should we add to our argument that Edwards v Peck is a precedent given the legal issues, although the judge isn’t bound to follow it?

70 Recent UK case reports

71 To be remembered Definition of precedent Hierarchy of courts
Stare decisis Ratio decidendi Obiter dicta Law Reports Advantages and disadvantages of precedent


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