Stare Decisis et Non Queita Movere

The English system of precedent is based on the Latin maxim: “Stare Decisis et Non Queita Movere", stand by what has been decided and do not unsettle the established. The idea is that by following precedents, which are the previous decisions of judges, fairness and certainty will be provided.

Precedents can only operate if the legal reasons for past decisions are known. Therefore, at the end of a case (civil) there will be a judgement in which the judge will give not only the decision but also the legal reasoning which lies behind it.

Ratio Decidendi

This is the legal reason or principal which lays behind the decision and it is this ratio which will provide the precedent for judges to follow in future cases. The remainder of the judgement is known as the:

Obiter Dicta

“Other things said by the way."

These comments do not form part of the ration (reasoning) and are therefore not part of the precedent. For instance, sometimes a judge will speculate on what his decision would have been if the material facts had been different.

Sometimes, part of the Obiter Dicta may be put forward in future cases and although it will not form a binding precedent it may help to ‘persuade’ a later judge towards a particular view in the law.

N.B. It is sometimes difficult to distinguish between ratio and any headings as the judgement is usually in continuous form without any headings specifying what is ratio and what is not.

There may also be a number of speeches at the end of a case, depending on the number of judges sitting and how they have individually arrived at their judgement. This can mean that there is more than one ratio.

Different Types Of Precedent.

Original Precedent

If a point of law has never been decided before, then whatever the judge decides will form a new precedent for later cases to follow. Donaghue v Stephenson (1932) snail in a bottle case – negligence. As there are no past cases for the judge to base his decision on, he is likely to look at cases that are closest in principal and he may decide to use similar reasoning. This way of arriving at a judgement is known as ‘reasoning by analogy’ see handout 61.

Binding Precedent.

This is a precedent from an earlier case, which must be followed even if the judge in the later case does not agree with the legal reasoning. A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decisions was made by a court which is senior too, or in some cases the same level as, the court hearing the later case.

Persuasive Precedent.

These are not binding on the court, however a judge may consider such a precedent and decide that it is the correct principal to follow. On other words, he is persuaded that he should follow it. They can come from 1) Courts lower in the hierarchy e.g. R v R (1991)

In this case the law lords followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife.

2) Privy Council decisions.

Obiter Dicta statements. This is particularly true of Obiter in the House of Lords e.g.

R v Howe (1987) the Lords ruled that duress could not be a defence for a charge of murder. So the Lords also followed Obiter that duress would not be available as an offence for someone charged with attempted murder.

But in 1992 R v Gotts , the Court of Appeal used this Obiter statement as a persuasive precedent to rule out a defence of duress in a charge of attempted murder.

A dissenting judgement is a judgement that disagreed with a majority view may be used to over rule the decision of the majority.

Decisions of court in other countries …especially where the same idea of common law are used, commonwealth countries e.g. Australia McLoughin v O’Brian (1983)

Nervous Shock in Negligence.

Civil Cases. Criminal Cases

European Court of Justice European Court Of Justice

House of Lords House Of Lords

Court of Appeal Court Of Appeal

Divisional Courts Queen’s Bench Divisional Court

High Courts Crown Court

County Court Magistrates Courts.

Magistrates’ Court

Courts And Precedent Courts Bound By It Courts It must Follow

European All Courts None

House Of Lords All Courts In English System European Court

Court Of Appeal Itself, Divisional Courts European Court

And other lower courts. House Of Lords

Divisional Itself, High Court and all European Court

Other lower courts. House Of Lords

Court Of Appeal

High Court County Court EC

Magistrates’ Court H of L

Court of Appeal

Divisional Courts

Crown Court Possibly Magistrates Court All other Courts

Above it.

Operation of the Doctrine of Precedent

Every court is bound by a court above it in the hierarchy.

In general, appellate (appeal) courts are bound by their own private decisions. (But there are exceptions to this rule, especially for the House of Lords since the 1966 Practice Statement.)

These basic rules are essential if the doctrine of precedent is to operate at all. The other thing, which is essential, is that lower courts know all the legal reasoning behind decisions of the higher courts. They can only do this if those reasons are properly reported. All decisions from the High Court upwards are properly reported through the system of Law Reporting.

Distinguishing; over ruling, reversing.

Distinguishing.

If a judge decides that the material facts of the case in front of him are sufficiently different from the material facts of the case containing the precedent then he is not bound by the precedent e.g. Balfour v Balfour (1919) and Merritt v Merritt (1990)

Both the cases involved a wife making a claim against her husband for breach of contract. In Balfour it was decided that the claim could not succeed because there was no intention to create legal relations, there was merely a domestic arrangement between husband and wife so there was no contract. In Merritt the court distinguished the case from Balfour because although the parties were husband and wife, the agreement was made parties were husband and wife, the agreement was made after they had separated. Further more, it was in writing, so it was a legally enforceable contract.

Sometimes ratios are wide – applicable to many further cases.

Some ratios are narrow – maybe not applicable to any.

Wide ratios have less material facts to consider than narrow ratios. Wide ratios are more difficult to distinguish.

Donoghue v Stephenson wide ratio and a rapid, extensive subsequent development of the law of negligence.

Over-ruling.

This is where a court in a later case states that the legal rule decided in an earlier case has been strongly decided. This would normally happen when a court higher in the hierarchy over-rules a decision made by a lower court in a previous case.

However both the ECJ and the House Of Lords can over-rule their own decisions made in previous cases.

Reversing.

This is where a court higher up the hierarchy over turns the decision of a lower court in the same case. E.g. the Court of Appeal reverses a decision of the High Court.

Following.

Where a higher court agrees with the decision of the later court.

House of Lords and Judicial Precedent.

Until 1898 the House Of Lords had the power to overrule it’s own previous decisions. However in 1898 London Street Tramways v London County Council.

The lords held that certainty in the law was more important than the possibility of individual hardship being caused by having to follow a past decision. Thus from 1898 the Lords regarded itself as bound by it’s own previous decisions unless they were made ‘per incuriam’, in error, which is where the Lords have ignored a statute.

However this decision became increasingly unsatisfactory as the law could not alter to meet changing social conditions, nor could it alter to change wrong decisions expect per incuriam ones, except by passing a new act of Parliament DPP v Smith (1961). The Lords had ruled that intention could be judged objectively. This was out of line with previous common law and held to be wrong however it took a statute to change this ruling:1967 Criminal Justice Act.

Because of the problems being caused by the House Of Lords voluntary abdication of it’s power to change it’s own decisions and particularly because of criticism caused by Smith. In 1966 Lord Gardener the Lord Chancellor issued a Practice Statement.

Initially the Lords were reluctant to use this new power, but since the 1970’s it has been much more willing to apply it in both criminal and civil law.

Economic loss in the law of Negligence.

This was an important decision because Anns’s had led to considerable complexity and uncertainty in the law. In the criminal law where the liberty and reputation of the subject is at stake the Lords has also been willing to over-rule itself. In one case only a year after the previous decision. – Shivpuri (1986) over-ruled Anderton v Ryan (1985)

Court of Appeal and the Doctrine Of Precedent.

Civil Division.

The Court of Appeal is bound to follow it’s own previous decisions. There are only three exceptions to this rule and these exceptions were identified in Young v Bristol Aeroplane Company (1944)

The case involved the workman’s appeal against a High Court decision, barring him from claiming damages after he had already accepted compensation under the 1925 Workman’s Act. The appeal judges in deciding that they could not hold up the appeal emphasized the only circumstances under which the appeal court could overturn one of it’s own previous decisions. These are:

Where previous decisions of the court of appeal conflict.

Where a decision which has not been expressly over-ruled cannot stand with a subsequent decision of the Lords.

Where a decision has been made ‘per incuriam’.

However following the 1966 Practice Statement some appeal court judges and in particular Lord Denning felt that they too should have made scope to over-rule their own decisions.

The Court of Appeal and the Young Guidelines.

Padberry v Peak had been wrongly decided ‘per incuriam’ because of ignorance of a relevant statute. The Court of Appeal explained that they needed to do this because 1) the case was unlikely to be appealed to the House Of Lords for cost reasons so it couldn’t be over-ruled there and 2) because it involved the common problem of divorce settlements it would be likely to affect lots of other couples in the future.

The Criminal Division of the Court of Appeal.

This has more latitude to deviate from it’s own pervious decisions because life and liberty are at stake.

Donoghue v Stephenson – Civil Law

Until 1932 a previous precedent had to be found to establish a duty of care in a particular case. However, in Donoghue, Lord Atkin said:

“There must be and is some general conception of relations giving rise to a duty of care of which particular cases found in the books are instances."

He laid down general rules as to when a duty would arise in future cases.

“ You must take reasonable care to avoid acts or omissions which you would reasonably foresee would be likely to injure your neighbours."

“Who is my neighbour?" persons who are so closely and directly affected by my act that I ought to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

This decision based on principle as it was derives from a wide ratio and was in theory, applicable therefore in a whole range of new situations.

1932 – 1978: little attempt was made by the courts to extend the scope of negligence. Courts were careful to find precedents.

Then in 1978 came the decision in Anns v Merton Borough Council. This made local authorities liable for damages arising from negligent use (or non-use) of their statutory powers. This like Donoghue was another decision based on principle and, like Donoghue, left the gates wide open to further developments in the laws.

In Junior Books v Veitch Co Ltd (1983) the principle in Ann’s was applied for the first time to purely ‘economic loss’.

And in McLoughlin v O’Brian (1983) it was applied to ‘Nervous Shock’.

This ‘swelling of the Ann’s principle led to increasing concern on the part of the law lords and a lot of ‘distinguishing’ to avoid applying the principle in Ann’s.

Finally in Murphy 1990 the Lords decided to over-rule Ann’s (invoking the 1966 Practice Statement.) in this case the Lords decided that plaintiffs would not be able to claim for loss which is purely ‘economic’. The problem was that if people could claim for economic loss, all kinds of businesses and government agencies would be open to claims that might bankrupt them.

Also, insurance premiums might go through the roof.

Would the amount of litigation flood the courts?

Would professionals stop offering risky services?

In Caparo Industries v Dickman (1990) the Lords laid down the criteria for deciding whether a claim should be allowed in negligence,

Was the damage reasonably foreseeable?

Was the relationship between the defendant and the plaintiff significantly proximate?

Is it just and reasonable to impose a duty of care?

In practice, it seems to mean that in personal injury and damage to property cases, a duty of care will arise where:

There is a relevant precedent based on the ‘neighbours’ principle.

No issues of public policy make the liability undesirable.

So, the development of the law negligence looks like:

Pepper v Hart was upheld in the Three Rivers v Bank of England . This case involved interpretation of legislation passed to implement EU. Directive Act was not ambiguous, Hansard could throw light on whether certain duties were intended to be imposed on council, this not being apparent from the Act. Held, therefore Hansard could be consulted even where there was no ambiguity in order to discover general legislative purpose i.e. give affect to EU law.

Precedent and the development of the criminal law. The meaning of intention.

Intention of murder,

R v Woolin July 1998.

The House of Lords over-ruled the Court of Appeal who had decided that intention could amount to a state of mind less than ‘foresight of a virtual certainty.’

If there was evidence apart from the accused actions. The Lords reaffirmed that the Court of Appeal’s own decision in R v Nedrick (1986) represented the law and the Court of Appeal shouldn’t have extended it.

Prior to Nedrick the law on intention had developed significantly.

R v Hyam (1975) intention can be equated with foresight.

Over-ruled in 1985 in Moloney by Lords.

Intention can only be found where there is evidence that the accused foresaw the result as a natural consequence.

This developed in Hancock 1986 - the natural consequence – must be judged against probability.

Developed in Nedrick – “the natural consequence must amount to a virtual certainty. (Which the defendant foresaw as a virtual certainty) for the jury to consider it as evidence of intention.

1n 1997 the Court of Appeal in Woolin had allowed a trial judges direction as the meaning of intention to include the phrase “substantial risk."

The Lords reversed the Court of Appeal’s ruling, referring back to Moloney, Hancock and the model direction in Nedrick – the Court of Appeal, in using the phrase substantial risk had blurred the dividing line between murder and manslaughter by blurring the distinction between intention and recklessness.

Precedent advantages and disadvantages.

Provides certainty in law.

Judges have clear cases to follow.

Lower courts follow higher courts.

It also leads to an orderly development of the law. Only the Lords can overrule it’s previous decisions and the hierarchy of the courts ensures that lower courts follow higher courts.

Case law of real situations – viable statute law and therefore rule and principles are derived from everyday life. This means that it should work effectively and be intelligible. Where unwelcome developments take place e.g. Negligence over Ann’s – the Lords can correct the position using the 1966 Practice Statement.

The law can develop. There is flexibility especially since 1966. Look at the law on intention has changed since 1970, but also when Lords feel that change is leading to uncertainty again, as in Woolin: 1998 it can use it’s power to reinforce the rule – Nedrick 1986.

Saves time – avoids unnecessary litigation.

Disadvantages.

1) There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear.

2) Case law can only change if a real case is brought. This requires someone to have the money (or the access to legal aid) to bring such a case. To take a case to the Lords is highly expensive.

3) Bad decisions are perpetuated since lower courts must follow higher courts (e.g. Anns)

Very few cases get to the Lords which is the only court which can overrule one of it’s own previous decisions. Not until 1991 (n R v R) was rape in marriage accepted as a crime.

Restricts the development of the law. It leads to distinguishing and hair splitting decisions which rules the law unnecessarily complex e.g. the law on automatism and voluntary intoxication which has led to some diabetics having to use the defence of insanity to escape a conviction if their trance like state was caused by lack of insulin, whilst if their state was caused by failure to eat after taking insulin they can use the defence of automatism. The law on insanity is still based on the McLoughlin rules 1843.

It is difficult to distinguish between ratio and obiter e.g. Donoghue v Stephenson.

Too much distinguishing or use of Practice Statement damages certainty.