2 Judicial Precedent Judicial Precedent : Is a process whereby Judges follow previously decided cases where the facts are of sufficient similarity.
3 Judicial Precedent Doctrine of Judicial Precedent involves the application of the principle of staredecisis.
4 Ratio / ObiterThe judgement or decision by the Judge can fall into two parts.Ratio Decidendi : Reason for the decisionObiter dictum : Said by the way
5 Ratio Decidendi Ratio Decidendi : Is the reason or the principle on which the decision on the case is based.Note : The word ratio decidendi is never used in the decision and judgment written by the court.
6 Obiter dictum Obiter dictum : Is the Judges views on how his decision could have been different, which he states by the way, and explains that a different decision could apply if the facts were different.Please note :The Obiter is not strictly binding, but is of persuasive authority in later cases.
7 Court Hierarchy S3(1) European Communities Act 1972 : Decisions of the European Court of Justice (ECJ), are binding, in matters of community law, on all English local courts. (Including the HL)All lower courts are bound by the decision of the House of Lords.The House of Lords is not bound by its own decision.The Practice statement (1966)as per Lord Gardiner
8 Court Hierarchy Court of Appeal (Civil/Criminal) Young v Bristol Aeroplane Co Ltd Court of Appeal is bound by its own previous decision unless :1) If Its previous decisions conflict, it must decide which to follow2) CA decision that goes against HL, must not be followed.3) Need not follow previous decision if it wasgiven “per incuriam”
9 Court HierarchyQuestion of stare decisis, and is it the same in both the civil and criminal courts?R v Taylor CA held that in “questions involving the liberty of the subject” if a full court considered that the law has either been misapplied or misunderstood’ then it must reconsider the earlier decision.R v Gould R v Newsome 
10 Court Hierarchy The High Court : Is bound by the HL and CA, but not by its own previous decisions.The Crown Court :Crown court is bound by the higher courts decisions, but not of its own.The County Courts and Magistrates Courts decisions are not binding on any courts.
11 Avoiding precedents Distinguishing Over ruling Reversing Per Incuriam “through want of care”(a mistaken decision by the court)
12 Distinguishing Jones v Secretary of State for Social services [1972) as per Lord Reid :“It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I don’t think that they act wrongly in so doing, they are adopting the less bad of the only alternatives open to them…but this is bound to lead to uncertainty..”In short Lord Reid says its OK to distinguish
13 Distinguishing But, LJ Buckley thinks otherwise: Olympia Oil v Produce Brokers as per Buckley LJ“ I am unable to adduce any reason to show why that decision which I am about to pronounce is right..but I am bound by authority which, of course it is my duty to follow..”In short stare decisis must be applied strictly, according to LJ Buckley
14 OverrulingA higher court can overrule a decision made in a earlier case by a lower court.1) If lower court did not apply the law correctly.Anderton v Ryan  overruled by HL inR v Shivpuri  HL2) The rule of law contained in the previous ratio decidendi is no longer desirableMiliangos v George Frank Ltd  overuled previous rulings, that damages in the English courts have to be awarded in sterling pounds.
15 Reversing Reversing is the overturning by a higher court, of the decision of the lower court.
16 Per IncuriamA decision reached Per Incuriam is one reached by carelessness or mistake, and can be avoided.Morelle v Wakeling  as per Lord Evershed MR“the only case in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on the court”
17 Per Incuriam Secretary of State for Trade and Industry v Desai (1991) as per Scott LJ“…decision involved some manifest slip or error but also that to leave the decision standing would be likely, inter alia, to produce serious inconvenience in the administration of justice or significant injustice to citizens.”
18 Can the CA avoid HL decisions? The “per incuriam” rule does not permit the CA to ignore decisions by the House of Lords.In Cassell V Broome  CA Lord Denning MR, held the case of Rookes v Barnard  CA to be per incuriam, because it did not follow the previous house of lords decisions.He was rebuked by the HL, and they said that the CA in fact had stated their opinion only, and “only meant that they did not agree” with the HL decision.
19 Persuasive Precedents Privy Council Judicial committeeLower courts decisions (ratio)Scottish, Irish and Commonwealth courts ratio decidendisObiter dicta of English courts
20 Advantages/Disadvantages of precedents 1) Certainty in the law2) Uniformity in the law3) Its flexible,.distinguishing, overruling etc4) Practical in nature5) Detailed and a wealth of information
21 Advantages/Disadvantages of precedents Disdvantages :1) Difficulties in deciding what is the ratio decidendi2) If its important case of point of law, it would take considerable time for the case to conclude. R v R (1991)3) Cases can easily be distinguished4) Far too much case law and thus complex
22 Doctrine of Precedent Law making potential Do the Judges make laws?Willis v Baddeleyas per Lord Elsher“There is no such thing as judge made law,for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has been previously been authoritatively laid down that such law is applicable”Thus the old view was that they do not make laws.
23 Doctrine of Precedent Law making potential The modern view is that judges do make laws:as per Lord Radcliffe :“..there was never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it?”Thus the reality is that judges are continually applying the existing rules to new fact situations and thus creating new laws.
24 Doctrine of Precedent Law making potential In the mid-ninteenth century the HL developed the practice that it would be bound by its own decision.London Tramways Co v London County Council The HL felt that the decisions of the highest appeal court should be final in the public interest so that there would be certainty.
25 Doctrine of Precedent Law making potential In 1966 the practice statement by Lord Gardiner, changed the rule that the HL were bound by their own decisions.Reasons for the change :1) enables the HL to adapt to the changing needs.2) enable them to pay more attention to decisions of superior courts in the commonwealth.3) change in line with superior courts in other countries.
26 Doctrine of Precedent Law making potential In 1966 the practice statement by Lord Gardiner, changed the rule that the HL were bound by their own decisions.Reasons for the change :1) enables the HL to adapt to the changing needs.2) enable them to pay more attention to decisions of superior courts in the commonwealth.3) change in line with superior courts in other countries.
27 Doctrine of Precedent Law making potential Paterson’s Survey (1982) of Nineteen LawLords,found that at least twelve thought thatlaw lords had a duty to develop the commonlaw in response to changing social conditions.
28 Doctrine of Precedent Judges making laws Herrington v British Railways Boardthe judges overruled Addie v Dumbreckin a case involving a child trespasser injured bythe occupier, “negligently”.