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Mechanics of precedent - introduction

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Introduction

Judges must not be seen to be usurping powers of Parliament.

 

Judicial precedent means

Where judges follow previously decided cases.

The decided case itself—a 'precedent' the report of the case, the Law Report is also called a precedent.

 

The operation of judicial precedent allows for development of the law.  But the basic purpose of the rule of law is to provide

 

1. uniformity,

2. consistency and

3. certainty

The principles should not, however, be regarded as so rigid that they cannot develop in order to meet contemporary needs.

 

One of the earliest statements on the rationale underpinning this doctrine was made by Parke J (Mirehouse v Rennell (1833)) when he stated:

"Our common-law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedent; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised." (emphasis added by the Court of Appeal in R v Simpson (2003))3 All ER 531;EWCA Crim 1499

Binding precedents

A binding precedent is a decided case, which a court must follow.

 

Only binding if the legal principle involved is the same and the facts are similar.

 

A later court can circumvent an inconvenient precedent, which would otherwise be binding, by distinguishing it on the facts or on the legal principle involved.

 

Stare rationibus decidendis

stare rationibus decidendis, = keep to the decisions of past cases

Stare Decisis...Ratio Decidendi

Standing of the Decision...Reason for the Decision.

 

Ratio decidendi

The only binding part is the ratio decidendi.

Obiter dicta is other comments made by the court ‘things by the way’ and do not always form part of a ratio decidendi

 

Cases are not binding on questions of fact.

 

Persuasive precedents

Is one which is not absolutely binding on a court but which may be applied e.g.

Decisions of courts lower in the hierarchy, so the House of Lords may follow a Court of Appeal decision, and the Court of Appeal may follow a High Court decision.

 

Decisions of the Privy Council are not strictly speaking binding but are persuasive (but note can be followed using the rule of James and Karimi.  In this case the Court of Appeal preferred a later Privy Council case to a House of Lords decision relating to the law of provocation in murder.

 

Obiter dicta

Rondel v Worsley [1969] after seven days of legal argument and the citation of 92 cases, the court held unanimously that a barrister is not liable in tort for the negligent presentation of a case in court and the preliminary work connected therewith, such as the drawing of pleadings.

 

 

Four of their Lordships said, obiter, that a solicitor acting as an advocate was entitled to the same immunity, three of their Lordships said, obiter, that a barrister would not be immune from an action in negligence in relation to matters unconnected with cases in court and the preliminary work connected therewith.

 

The weight of persuasive precedents

The weight to be attached to any individual persuasive precedent will depend for example on the rank of the court in the hierarchy, the prestige of the judge(s) involved, the date of the case, whether judgment was reserved or given ex tempore, whether there was any dissenting opinion, whether the case was contested and whether the point in question was argued or merely conceded by counsel.

 

Obiter taking on the force of ratio

Red triangle indicates important information

 

 

 

A good example of a highly influential dictum is the statement of Lord Atkin in Donoghue v Stevenson [1932] where he attempted to lay down a general test for determining when a duty of care arises in the tort of negligence. His dictum has become known as the 'neighbour test' and was expressed in these words:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

This dictum, though clearly obiter, has been adopted in subsequent cases, for example The Dorset Yacht case.

 

Old cases

If the case is old, it has stood the test of time and now represents well-settled law.

 

Alternatively, is now out of touch with changed conditions. If the case is recent, observers hail it as the most up-to-date pronouncement on the matter. Alternatively, it can be attacked as being of insufficient antiquity.

 

Ex tempore

A considered judgment delivered after being reserved will usually carry more weight than one delivered ex tempore 'off the cuff' at the conclusion of counsel's argument.

 

Cuna advisari volt

The law reports signify a reserved judgment by the words cuna advisari volt ('the court wishes to consider the matter'). Often abbreviated to cur. adv. volt or C.A.E

 

House of Lords are always reserved

Although sometimes the House of Lords announce the actual decision at the end of counsel's argument - without giving their reasons at that time - their opinions are always reserved.

 

Significance of dissenting judgments

Weight given to a persuasive precedent will be reduced if any dissenting opinion was given in the case and, in particular, by a judge whose views command the highest respect.

 

Unargued cases

Persuasiveness is also affected if the case was not contested or if the judge decided the point in issue after being conceded by counsel. Such a case has not been subjected to the close scrutiny and refining process associated with skilled legal argument.

 

Original precedent, and obiter; a worked example

In DPP v Smith [2006] QBD the defendant went to the home of his ex-partner and cut of her pony tail with kitchen scissors.  The magistrates accepted that there was no actual bodily harm; the DPP appealed to the Queen's Bench Division.

 

There was no precedent on this type of assault, so the QBD created one: 

 

Held: Cutting off a person’s hair amounted to ABH. Harm was not limited to injury to the skin, flesh and bones and extended to hurt and damage. That the hair cut was "dead tissue" was not relevant.

 

They then went further and said something that they were not asked about, but they thought was relevant:

 

Obiter: If paint or some other unpleasant substance were to be put on a victim’s hair that would to could amount to actual bodily harm.
Smith was found guilty of ABH.

 

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