Judicial Precedent and the Hierarchy of the Courts

• Stare Decisis

  • Latin phrase.
  • 'Let the decision stand'
• The doctrine of precedent is based on the principle that like cases should be treated alike.
• Cases with the same or similar material facts should be decided in the same way.
• Decisions made in higher level courts carry greater weight than those lower in the hierarchy.
• A court is normally bound by those higher or equal to them.
• Ratio Decidendi

  • Latin phrase
  • The reason for the decision
  • Potentially binding part of a legal decision
• Obiter Dictum

  • Latin phrase
  • 'Things said in passing'
• Binding Precedent

  • A decided case that must be applied in a later case even if it is considered to have been wrongly decided.
  • Exists when the material facts of a case are similar to those of an earlier decision in a higher or equivalent court.
• Persuasive Precedent

  • One which may be followed by a court but there is no compulsion on the courts to do so.
• Ratio

  • Legal rule and associated reasoning that is essential to the resolution of the case.
  • Conclusion reached by the application of the relevant legal rule to the material facts.
• Court of Justice of the EU

  • Not bound by its own previous decisions.
  • Strongly persuaded by its own previous decisions and rarely departs in practice in the interests of legal certainty.
• Supreme Court

  • Bound by its own previous decisions until 1966.
  • This was established in the mid-19th Century and was known as the London Tramways Rule.
  • As the House of Lords was the highest appeal court it was considered in the public interest for its decisions to be final.
  • This was intended to provide absolute certainty and cut down on cases being brought to court.
• Practice Statement 1966

  • Abolished the London Tramways rule.
  • Gave the House of Lords sufficient flexibility to deal with novel situations and ensure justice.
  • Allowed the law to develop in line with the chandes in society.
• Practice Statement (Previous Decisions)

  • Would only be used where a decision caused injustice, uncertainty or hindered the development of the law.
  • Not sufficient that the earlier decision caused grave concern or was passed by a narrow majority.
• R v Secretary of State for the Home Department ex p. Khawaja

  • Held that before departing from its own decisions, the House of Lords should ensure that continued adherence to precedent involves a risk of injustice and would obstruct the proper development of the law.
  • Departure from the precedent should be the safe and appropriate way of remedying the injustice and developing the law.
• Court of Appeal Civil Division

  • Young v Bristol Aeroplane Co Ltd highlighted that the CoA was normally bound to follow its own decisions subject to three exceptions.
  • Where its own previous decisions conflict.
  • Where its own previous decisions had been overruled by the House of Lords,
  • Where its previous decision was made per incuriam.
• Per Incuriam

  • Latin phrase
  • 'Through carelessness'.
• Court of Appeal Criminal Division

  • All the exceptions from Young v Bristol Aeroplane apply.
  • However in practice the Court of Appeal gives itself wider discretion in criminal cases where individual liberty is at stake.
• The Divisional Courts and High Court

  • Bound by their own decisions.
  • Subject to the same exceptions as the Civil Division at the Court of Appeal.
  • Decisions of the Divisional Court are binding on the High Court for that particular Division.
  • However, High Court decisions are not binding on the Divisional Courts.
• High Court Judges

  • Decisions of individual High Court judges are binding on lower courts but not other High Court judges.
  • However they are of strongly persuasive authority in the High Court.
  • If they are not followed, they are disapproved rather than overruled.
• The Crown Court

  • Not bound by its own decisions.
  • However, to promote certainty in the criminal law it is strongly persuaded by them.
  • Inconsistent Crown Court decisions are usually resolved by an appellate court.
• County Court, Family Court, Magistrates' Court

  • Not bound by their own decisions.
  • Bind no other courts.
  • Decisions made at this level are rarely of any legal importance.
  • However their decisions can be considered on appeal in the higher courts.
• Distinguishing

  • Where the court decides that the case before it is materially different on its facts.
• Overruling

  • When a court higher in the hierarchy overturns the decision of a lower court in a different case.
• Reversing

  • When a court higher in the hierarchy overturns the decision of a lower court in the same case.