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How the Doctrine of Precedent Operates

Info: 1396 words (6 pages) Law Essay
Published: 6th Aug 2019

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Jurisdiction(s): UK Law

In this course work essay, how the English law system operates to a new case on application of the doctrine of precedent. Firstly, it will explain what is the doctrine of precedent and, secondly, defines the Stare Decisis, the Ratio Dicidendi and the Obiter Dicta. Lastly, the types of precedent and how the doctrine of precedent operates will be represented.

The English court structure is consisted of five levels of courts. Which namely from the top are the House of Lords, Court of Appeal, Divisional Courts, High Court, Crown Court and Magistrates’ Courts & County Courts.

The doctrine of precedent is one of the most fundamental constituent of English legal system. The doctrine of precedent means that the following of the legal principles made by the higher courts and the court of appeal in prior cases. Once judges in the higher court, normally means the House of Lords or the Court of Appeal make a decision to a case, it is come to binding precedent that the lower courts have to follow in the future cases as regards to share similar facts.

The point that the lower courts in hierarchy must follow a precedent in upper courts is referred as “Stare Decisis.” The word come from Latin which is interpreted as “to stand by things decided.” Stare Decisis is generally applied to the later cases when the ruling was previously made from similar case.

When judges issue their decisions for the case, they have provide the final judgment which is divided into two part.


The Ratio Decidendi is the essential part of the judgement as it lays out the reasoning behind a judge’s ruling. After providing a brief summary of the facts in the case, a judge will need to explain what part of the law he used for arriving decision. This part will give why a judge make the decision which eventually sets the precedent for the later cases. For example, in the case of Saloman V Saloman & Co Ltd (1897), the provided ratio decidendi was that where a person or persons carry on business through a company, the debts of the business are debts of the company and not of those persons.

As for the other part of the judgment, it is called as “The Obiter Dicta”. As the main point is given in the ratio decidendi, the obiter dicta remains as no binding precedent even though its reasoning is brought to a consideration on judging in some cases. The example of the obiter dicta is well illustrated in the case London Property Ltd v High Trees House Ltd (1947). In this case, a company leased a number of flats for 99 years, however, one of the landlord decided to receive the half of the rental fee in order to deal with difficulties in finding tenants during the time of Second World War. The landlord wanted the rental fee to be as used to be after the war, and the judge Denning J ruled that the landlord should take the full rental fee again, and in the obiter dicta of the case he added that the landlord would have been stopped from claiming, and since this case it has sometimes been decided that it is inequitable for one party to rely on strict terms of contract if the other party is led to believe they will not. [1]

There are different types of precedent in the English law system as following.

The original precedent refers the forming of the first precedent at a point of the law in a case that has not been introduced or ruled before. As it is the first decision to be made on a certain part of law, a judge has to produce the original precedent. Judges can seek to help to form a precedent without the previous precedent in analogy. It means that judges would search the cases with similarity to make a judgment. Analogy was used in the case of Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995). A constructor of a tower was sued over interfering the television reception, and the plaintiff lost the case. For the judgment of the case, the judge cited Aldred’s Case (1611) as an original precedent.

Another one is called the Persuasive precedent. It is a precedent of which a judge does not necessarily follow, although it could be looked at when a decision is made. The sources of the persuasive precedent are variety. Firstly, courts within a lower hierarchy could produce a persuasive precedent. As an example of it, in the case of R v R (1991), the House of Lords accepted the decision made by the Court of Appeal that a raping can be established between a husband and a wife. The other source of the persuasive precedent is from the obiter dicta stated by judges. R v Howe (1987), a case of the House of Lords, the obiter dicta included the stating duress could not be used as a defence to an attempted murder. It was used in later in case of R v Gotts (1992) in the Court of Appeal. Dissenting judgment is referred the situation where a judge or a minority of judges is to give reasoning on objecting to a decision made by a majority. The higher court is more likely to in favour of the dissenting judgment as subject to the same case, and may precede to decide the case within the dissenting judgment. In some cases, ruling made within courts of other countries such as Australia and New Zealand can influence over the cases in English.

The binding precedent is a legal rule made in a superior court of the hierarchy that is the rest of courts in hierarchy below the court must be followed. It means that the highest court, the House of Lords is bound to every court which includes itself. The example of this can be found in Gomez case which followed the precedent created in Morris case. Binding precedents should keep up with the European level as the European Court of Justice has got binding power over the English law system of today. This can be seen in the case of Pickstone v. Freemans and Finnegan v, Clowney Youth Training Programme Ltd [1990] 2 All ER 546.

The top court of the hierarchy is the House of Lords. As from the 1966 practice statement issued by Lord Gardener, the House of Lords does not have to follow its own decisions. Normally it will follow the precedent, in some cases, the House of Lords changed its own ruling. The next highest court is the Court of Appeal which divided into the Civil division and the Criminal Division. They are bound to follow precedents from the House of Lords and also their own decisions. It is followed by the Divisional Courts (Queen’s Bench Division, Chancery Division and Family Division) and below that there is the High Court which is bound to every upper courts but not always to its own decisions.

However, not all the cases have to follow a previous ruling.

Judges can escape from a previous decision by distinguishing a past case from a current case. Distinguishing involves finding different facts between the two cases. If there is an apparent difference between them, a current case can be distinguished from the earlier case. Thus it does not have to follow a precedent. Distinguishing can be founded in cases Belfour v Belfour (1919) and Merritt v Merritt (1990) of which the later case did not follow the earlier case because of the difference in legal effect of the contract.

Over-ruling and reversing are also available ways in which a judge can away from the previous decisions. Over-ruling is able in a higher hierarchy of courts when the decision of past in a lower court is thought to be wrong. Reversing seems similar to the over-rule, but it refers an overturn of a same case in a upper level of courts and may involve the court of Appeal.

The precedent and hierarchy are inter-related within the structure of English law system. It is important to know the hierarchy of English court structure provides the main resource of operating the doctrine of precedent. As precedents are binding from the top to the bottom, it fits well to the system of English law and makes a probable reasoning by rechecking the ratio decidendi and the obiter dicta. It may seem that the doctrine of binding precedents is bureaucratic, however now the top of the hierarchy is accessible and it works as if oil on a delicate machine.

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