Judicial Precedent (JP)

Judicial Precedent (JP)

1. 1. Intro

   • Applying the existing principles to current problems
   • Based on 'stare decides': to treat like cases alike
   • Dependent on court status
     • Decisions of higher courts are binding on lower courts
     • Courts may be bound to their previous decisions, but there are exceptions
   • Rationale of JP
     • 1. Serves as guidance
     • 2. Encourage certainty in law
     • 3. Maintain traditional respect to judges
     • 4. Practicality purposes

2. 2. Binding Precedent

   • Decided case which a court must follow if material facts and issue in question are similar, and the court is a higher court
   • Binding part of judgement is ratio decidendi
     • Defined by Prof. Goodhart: facts deemed material by judge, and his decision based on them
   • Donoghue v Stevenson 1932
     • Ratio = Duty of Care
     • Obiter = Neighbour Principle
     • Dynamic nature between ratio and obiter: obiter changes into ratio over time
     • Facts of the case

3. 3. Persuasive Precedent

   • Persuasive in nature
   • Comes from obiter dicta, and decisions by Privy Council and foreign courts
   • Weight to be attached depends on court status and prestige of the judge

4. 4. Tools of Departure

   • (a) Reversing
     • R v Kingston 1994
       • It is possible to reverse and overrule in the same case.
   • (b) Overruling
   • (c) Distinguishing
     • Hillyer v St. Bartholomews Hospital (1909)
       • The doctor was a consultant surgeon, and hospital could not be sued vicariously since he is not an employee
     • Cassidy v Minister of Health (1951)
       • The doctor was a resident surgeon, who is an employee of the hospital and therefore the hospital can be liable vicariously.
     • Depends on amount of control the hospital holds over their employees

5. 5. Supreme Court

   • Before PS 1966
     • London Tramways v London County Council (1898)
       • The House considers itself bound by its own previous decisions, as the highest court of the land
       • To promote certainty, gain public confidence and put an end to litigation
   • Practice Statement 1966 by Lord Gardiner
     • JP is an indispensable foundation to determine law and its application in cases
     • Rigid adherence to it can cause personal hardships
     • Judges in the House can depart when it appears 'right to do so'.
     • Judges should refrain from making reforms in criminal law, as certainty is crucial in this aspect of law
   • After PS 1966
     • Guidelines were set in what type of cases to overrule
       • Jones v Sec State for Social Services 1972
         • Use PS 1966 sparingly in the construction of statutes and documents
       • Food Corp of India v Antclizo Shipping 1987
         • Decision shall not be overruled merely because it causes gave concern, but in an attempt to resolve the dispute
       • Conway v Rimmer 1968
         • Duncan v Cammel Laird 1942
           • Affidavit is binding since it was a time of war, and if document is disclosed, it could harm British civilians
         • Courts will decide whether a minister's affidavit shall be disclosed
       • Herrington v British Railways Board 1972
         • Addie v Dumbreck 1929
         • Occupier shall be liable to trespassers if they know there is a potential danger and have not done all a humane person could have
         • There are more and more people living in cities with railway tracks, and thus the law shall be developed.
       • R v R 1991
         • Overruled Hale's theory and made marital rape an offence
         • Retrospective offence
       • R v Clegg 1995
         • House was averse to reduce murder to manslaughter, and that this change should come from Pt.
       • C v DPP 1995
         • (a) Cautious imposing a remedy when solution seems doubtful
         • (b) If Pt. has rejected or legislated, but left the problem untouched, they should be cautious
         • (c) Judges are better dealing with legal problems, than social policy
         • (d) Precedent should not be lightly set aside
         • (e) Judges should not change the law unless they can achieve finality and certainty

6. 6. Court of Appeal

   • Exceptions From Young v Bristol Aeroplane 1944
     • 1. Two conflicting COA decisions
       • National Westminster Bank v Powney 1990
         • Tiverton Estates v Wearwell 1975
         • Law v Jones 1974
         • Can choose which to depart and which to follow
     • 2. Later HoL decision conflicting with CoA previous decision
       • Westminster City Council v Clarke 1992
         • Family Housing Association v Jones 1990
       • CoA does not follow its previous decision where its previous decision is inconsistent with HoL decision.
     • 3. Per Incuriam
       • (a) Reached by overlooking statutes or case law
       • (b) Produce serious inconvenience in the administration of justice
       • (c) Ignoring previous HoL decision
       • Duke v Reliance System 1982
         • 1. Uncited statute or case law
         • 2. Defence is wide and therefore care must be taken in relying upon it
         • 3. Recent developments show it produces inconvenience to justice

7. 7. High Court

8. 7. + / - of Precedent

   • 1. Reasonable flexibility given to Supreme Court
   • 3. Promotes certainty to a certain degree to provide predictability in court decisions
   • 4. Overrules decisions to ensure proper development in law to suit changing needs of society
   • 5. Exceptions given to CoA and High Court allow greater flexibility
   • 2. Only Supreme Court shall overrule decisions using PS 1966 because judges are experienced enough to consider the long-lasting effect of judicial law reform
   • a. Retrospective overruling
   • b. May take longer for decisions to be overruled, CoA is often the last resort due to finance and limited grounds of appeal.