Judicial Precedent

Judicial Precedent: means that judgments reached in earlier cases should be followed in later cases unless there are sound reasons why they should not be. In other words, judges can create binding precedents by the judgments they make because other courts are bound to follow these judgments.

Define stare decisis: standing by previous decisions. The English System of precedent is based on the idea of standing by what has been decided, and not unsettling the established.

Reason for the System: This system provides fairness and certainty in the law because defendants can expect to be treated fairly no matter where the case is heard, and the courts will be reasonably certain how the law should be applied in particular cases.

Judicial Precedent operates in the court hierarchy: higher courts binding lower courts. Decisions of the House of Lords (now the Supreme Court) bind themselves and all the Courts below in the hierarchy.

2 Parts of a Judgement:

  1. BulletRatio Decidendi: The reason for the Decision. This is the binding part, Stare decisis is created though the ratio decidendi.

  1. BulletObiter Dicta: Other things Said or things said by the way. This is simply binding on future courts.

Accurate law reporting: is essential for Judicial to operate.

Original Precedent: The first decision of it’s kind .

Donoghue v Stevenson 1932: Landmark decision in Tort law recognising a general duty of care. This is an example of original precedent and a decision made in the House of Lords which will bind all future cases where the facts are materially similar when the matters are heard in a Court lower in the hierarchy.

Binding Precedent: The Courts have no choice to follow the decision where the material facts are similar.

Persuasive precedent: is not binding, but courts can decide to follow it.

Different types of persuasive precedent:

  1. BulletObiter dicta

Central London Property Trust Ltd v High Trees House Ltd (1947): If a party leads another party to believe that he will not enforce his strict legal rights, then the Courts will prevent him from doing so at a later stage. This obiter remark was not actually a binding precedent, yet it essentially created the doctrine of promissory estoppel.

Howe (1987): It was stated obiter that Duress could not act as a defence to murder, this has been used and extended in future cases (R v Gotts extended the principle to apply to attempted murder)

  1. BulletDecision of the Privy Council

R v Holley (2005): D killed his girlfriend with an axe. He was an alcoholic and she told him she had sex with another man. He pleaded provocation. Held: D’s alcoholism should not have been taken into account. The Privy Council decision is said to be only persuasive but this was a judgment of nine Law Lords sitting as the Privy Council. These decisions could therefore be seen as binding until the House of Lords or parliament declare otherwise.

R v James and Karimi (2006): Ds were convicted at separate trials of murder and their cases were referred to the Court of Appeal by the Criminal Cases Review Commission. Held: Where there is a decision by a nine member Board of the Judicial Committee of the Privy Council the Court of Appeal was bound to prefer the decision of the Privy Council to a decision of the House of Lords.

Wagon Mound (No. 1) (1962): Concerned principles of tort law concerning the remoteness of damage which was later given binding force by the H of L.

  1. BulletDissenting judgments

Candler v Crane Christmas & Co (1951): is tort law case. In it, Denning LJ delivered an important dissenting judgment, arguing for a duty of care for negligent statements.

Hedley Byrne v Heller & Partners (1964): The dissenting judgement in Candler was followed in this case and a duty of care was recognised for negligent statements.

  1. BulletDecisions of courts in other countries

Re A (2000): In considering if an operation should go ahead knowing one of a pair of Siamese twins the court considered the history of forced sterilisation in other countries.

  1. BulletJudgments made by courts lower in the hierarchy

R v R (1991): the House of Lords took the opportunity to restate the law concerning marital rape and declared that the husband could be guilty of rape in these circumstances. As Lord Keith said: ‘The common law is . . . capable of evolving in the light of changing social, economic and cultural developments.’


Links to Relevant Learning Resources


Delegated Legislation

AS Law: SoL

Statutory Interpretation

European Law

Law Reform

Judicial Precedent and the Lower Courts

Judicial Precedent and the Supreme Court

Judicial Precedent and the Court of Appeal