Binding Precedent Essay Outline

Outline how judges can avoid following precedent by distinguishing a previous precedent and overruling a previous precedent.

Distinguishing is a way of avoiding having to follow a previous decision because the material facts are different or because the statement of law in the previous case can not be adequately applied to the new case because it is too narrow.

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A judge may have to follow a previous decision because the decision in question was made on similar legal principles in a court above it in the hierarchy. If that is the case the judge has no alternative but to follow the previous decision and this remains the case even if the judge does not agree with the decision. Distinguishing is a method which can be used by a judge to avoid having to follow a previous decision which he or she would normally be bound to follow.

The method of distinguishing can be applied if the judge can find that the material facts of the case he or she is deciding are sufficiently different from the previous decision. These facts must be relevant and material to the legal principles which will determine the outcome of the case – trivial or minor differences will not suffice. Sometimes the practice of distinguishing is criticised as it leads to 'hair splitting' or 'illogical' differences, meaning that it is hard to see any real justification for not following the previous precedent thus making the law become uncertain. Certainty is a key reason behind having a system based upon past judicial decisions.

Distinguishing will enable the judge to make a distinction between the present case and the previous decision which would otherwise form a precedent which the judge must follow. Unless the judge is able to draw such a distinction he would be bound to follow the previous case even if he or she did not agree with the legal reasoning. The concept of judicial precedent is strictly adhered to.

There are two cases which are often cited by way of illustration of how distinguishing works. The cases are Balfour v Balfour (1919) and Merritt v Merritt (1971). In both cases a wife made a claim against her husband for breach of contract.

In Balfour v Balfour (1919) the husband went overseas to work and his wife was unable to go with him, he agreed orally to send her £30 a month until she was able to join him. The relationship broke down and the payments ceased. The wife tried to get the agreement enforced but the claim failed as it was decided that there was no intention to create legal relations (one of the conditions one would normally expect in order to find that a legally binding agreement existed). The arrangement was one which was considered to be a domestic arrangement between a husband and a wife.

In the later case the claim succeeded. The court in the case of Merritt v Merritt (1971) were able to distinguish that there were material differences in the facts of the case of Merritt from those in the case of Balfour. In Merritt the husband had agreed to pay £40 per month maintenance, the wife was to use this to pay the mortgage and, once the mortgage was paid off, the house was to be transferred from joint names to the wife's name. Although this had been written down and the agreement signed, the husband would not transfer the house when the mortgage was paid.

The differences were that in the Merritt case the parties were already separated so the relationship between one family member and another could be seen to be different and more distant. This might explain why the parties decided to put the agreement in writing, again this was not the case in Balfour and did indeed suggest that in the case of Merritt there was an intention to put the arrangement on a more formal footing.

So in this case the husband had to transfer the house to the wife. Some might also argue that over the time between the cases, society's attitude towards the subject of marital breakdown may well have changed and that the court's decision in Merritt simply needed to be more realistic and reflect the parties' need to protect themselves.

Overruling - Overruling a previous precedent arises where a court decides, in a later case, that the legal ruling or reasoning in an earlier case was wrong.

Should a court in a later case decide that the legal ruling or reasoning in an earlier case was wrong, then it follows that the court is really saying that the earlier decision should not now be followed and the case is no longer considered to be good law.

Illustrations of when overruling may occur are: 

  • when a higher court overrules a decision made by a lower court in an earlier case e.g. the Supreme Court overruling the decision of the Court of Appeal in an earlier case;
  • when the European Court of Justice decides to overrule a previous decision that it has made by not following the decision;
  • when the Supreme Court decides to exercise its discretion and declare one of its own previous decisions to be no longer law and overrules it.

The cases of Pepper v Hart (1993) and Davis v Johnson (1978) provide a good example of the principle of overruling by the House of Lords using its authority under the Practice Statement 1966.

In Pepper v Hart the House of Lords decided that Hansard (the official record of of what is said in Parliament) could be admitted in evidence before the court when trying to decide what was meant by particular words in a statute. This meant that the earlier decision of Davis v Johnson to the effect that Hansard could not be consulted, no longer represented the law and was overruled.

A rare example of overruling in a criminal case using the powers of the Practice Statement can be found with the case of R v Shivpuri (1986) in which the House of Lords acknowledged that they needed to take the opportunity of putting right the mistake they had made in Anderton v Ryan (1985).

In Anderton v Ryan the defendant had bought a video recorder, but later confessed to the police that she believed it to have been stolen property when she bought it. The defendant was charged with attempting to handle stolen goods. Later in the proceedings the prosecution had to accept that they were unable to prove that the goods were stolen property. Nevertheless the defendant was convicted.

The matter eventually came to the attention of the House of Lords who, by a majority of 4-1, quashed the defendant's conviction on the ground that she could not be guilty of attempting to handle stolen goods unless such property could be shown to be stolen. The majority of their Lordships refused to accept that the defendant's belief that the goods were stolen was sufficient in itself to result in liability.

Such a result may have been the aim of the Criminal Attempts Act 1981 but their Lordships felt that Parliament would have to express its intentions more clearly before the courts would be willing to impose liability solely on the basis of what the defendant had thought she was doing, as opposed to what she was actually doing.

The House of Lords did not have to wait long before they had the opportunity to address this problem again. In R v Shivpuri (1986) the defendant was paid to act as a drugs courier. He was required to collect a package containing drugs and to distribute its contents according to instructions which would be given to him. When the defendant collected the package the defendant was arrested by police officers, he confessed to them that he believed its contents to be either heroin or cannabis.

An analysis revealed the contents of the package not to be drugs, but a harmless vegetable substance. The defendant was convicted for attempting to be knowingly concerned in dealing and harbouring a controlled drug, namely heroin. The House of Lords took the opportunity of making it clear that even though Anderton v Ryan had only been decided by them a short time before they now felt that their earlier decision was wrong and that they were overruling that decision and declaring the law to be as they found it to be in Shivpuri.


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As always the links provided will enable you to do further research and enhance your understanding of judicial precedent.


English Judicial Precedent - Fun Facts, Questions, Answers ...








Outline the key features of judicial precedent.

Judicial precedent concerns itself with the influence and value of past decisions of case law and prior legal experience.

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A fundamental principle upon which the doctrine of judicial precedent rests, is that a hierarchy of courts is needed if it is to operate. The concept of stare decisis, meaning stand by what has been decided, forms the basis of the doctrine of judicial precedent. The notion is that like cases should be treated alike for the sake of certainty and consistency which, it is argued, leads to fairness.


The effect of this is that, ordinarily, the legal reasoning on a point of law made in an earlier case must be followed. However if all courts regardless of their status or seniority were able to set precedent the doctrine of judicial precedent would be a nonsense as it would be practically impossible to determine which precedent took precedence!


The doctrine of judicial precedent has overcome this by the requirement that all courts are strictly bound to follow decisions made by the courts above them in the hierarchy. In addition appellate courts are normally bound by their own past decisions.


The doctrine of judicial precedent operates in the English legal system and it is accepted that certain principles apply and these will be dealt with in turn.


In the case of European law, whilst the European Court of Justice is not part of our legal structure, our law is subject to European law and to give effect to this concept, the decisions of the European Court are binding on all courts in England and Wales. This is not to say that the European Court is bound by its own past decisions because the European court is not so bound. The reason for this is said to be that other European countries have a more flexible approach to precedent than we do and this is particularly the case in countries which have civil codes.


With regard to our own hierarchy, we start with the Supreme Court which is the highest court in the UK and as such its decisions must be followed by all other courts in England and Wales. There are only limited exceptions to this rule and these are where a decision conflicts with a decision of the European Court of Justice or the European Court of Human Rights.


As an appellate court one would expect the Supreme Court to be bound by its own decisions and this is ordinarily the case and the Supreme Court will regard its own past decisions as binding.


The Supreme court can however depart from its previous decisions if it '..appears right to do so'. This is permitted under the terms of the 1966 Practice Statement which was issued by the Lord Chancellor Lord Gardiner in response to criticisms that the previous system of considering itself as being always bound was too rigid and may have led to injustice in individual cases.


The Court of Appeal must follow the decisions of the Supreme Court (Broome v Cassell & Co (1971). This issue came to a head in the cases of Schorsch Meier GmbH v Henning (1975)and Miliangos v George Frank (Textiles)Ltd (1976).


In the case of Schorsch Meier GmbH v Henning (1975) the Court of Appeal, led at the time by Lord Denning, did not follow the House of Lords decision in Havana Railways (1961) which determined that damages should only be awarded in sterling, and the award was made in Deutschmarks. This led to the case of Miliangos reaching the House of Lords, and judgement was given in Swiss Francs. The House had been given the chance of overruling the Havana case and took the opportunity to do so. Had the decision in Schorsch followed the House of Lords decision in Havana Railways, the Swiss firm of Miliangos would not have appealed and would have taken judgement in sterling and the House of Lords would not have had the opportunity to overrule the Havana case.

The Court of Appeal (Civil Division) is bound to follow its own past decisions Young v Bristol Aeroplane Co Ltd (1944). Whereas the Criminal Division of the Court of Appeal is allowed some flexibility to depart from a decision when dealing with a case where a person's liberty is at stake (R v Taylor (1950)).


Divisional courts are required to follow their own previous decisions (Huddersfield Police Authority v Watson (1947)) and must follow the Supreme Court and the Court of Appeal decisions.


It makes sense therefore that the High Court is bound by the doctrine of precedent to follow the decisions of the Supreme Court, Court of Appeal and Divisional Courts. Ordinarily the High court is not bound to follow its own past decisions but in the event of two conflicting decisions, the later decision is to be preferred provided it was reached after a full consideration of the law Colchester Estates v Carlton Industries(1984).


The Crown Court, County Court and Magistrates' Court are regarded as inferior courts and must follow the decisions of the courts above them in the hierarchy,( the Superior Courts). Inferior courts do not create precedent.


Another key feature of judicial precedent is the Latin term'ratio decidendi'andmeans that part of the judgement which is delivered at the end of a case which explains the reasons for the decision. This is the important part of the judgement given by the judge dealing with the case.

The doctrine of judicial precedent would not be able to operate if it were not for the requirement that the legal reason for past decisions must be stated. It is this part of the judgement which sets a precedent for other judges to follow.

Not every part of the judgement is binding - other parts of the judgement which are not binding may consist of a brief summary or outline of the facts of the case and a review of the legal arguments put to the judge/s by the advocates in the case which usually precedes the decision itself and the legal reasoning behind the decision.

Some cases can be particularly complicated, leading to a review of the law consisting of many past decisions made over a long period of time. In addition things are not made any easier if there are several judges. This will probably be the case in important appeal cases in the Court of Appeal and the Supreme Court and it may be necessary to consider not just one speech but several. This may be further complicated as each judge is entitled to set out their own legal reasoning leading to their decision so legal advisers may have to examine more than one ratio in the judgement.

The 'ratio decidendi' should be contrasted with parts of the judgement which are known as 'obiter dicta' which simply means 'other things said'. Such remarks made by the judge, although sometimes helpful and influential, are not binding. Obiter statements are a form of persuasive precedent in that whilst they are not binding they may be taken into account and a judge may be persuaded to follow the obiter remarks or reasoning.

A well known example of this kind of persuasive precedent is the case of R v Howe (1987) in which the House of Lords ruled that duress could not form a defence to a charge of murder and then went on to say obiter that they saw no good reason why it should be a defence to a charge of attempted murder. Subsequently in R v Gotts (1992) a young defendant was charged with the attempted murder of his mother and pleaded duress as a defence. The Court of Appeal decided to follow the obiter remarks in Howe and rejected the defence.

If cases were not properly recorded the doctrine of judicial precedent would fail. The doctrine is, by definition, dependent upon being able to refer back to past decisions and if those decisions are not reported and therefore not recorded the concept would be unworkable.

Prior to 1865 there were various systems of law reporting but since that date the Incorporated Council of Law Reporting has been responsible for producing official accounts of decisions.

There are also other reports such as the Weekly Law Reports, Current Law Reports and the All England Law Reports. The existence of these various reports has resulted in the development of a recognised method of citation in which the year of the report is used and letters to indicate the source of the report e.g. (1953) WLR, so as to show that the report can be found in the Weekly Law Reports. Volume numbers are also included to indicate the particular volume in which the case can be found.

Law reports can now be widely found on the internet as well as in book form and this has improved accessibility generally and the speed with which reports can be made available to the legal profession. The Court of Appeal and the Supreme Court have official sites on the internet but there are other subscription sites that have developed to respond to the increasing demand for readily available law reports.

The fact that there is a system of law reporting does not mean that every single case is reported. Some cases may only be referred to informally in a newspaper report. Such reports still have a value but the court's permission to use such 'unreported cases' must be obtained before they can be used.

(Word count 1555)

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As always the links provided will enable you to do further research and enhance your understanding of judicial precedent.

English Judicial Precedent - Fun Facts, Questions, Answers ...

Stare Decisis;

Ratio Decidendi;

Obiter Dicta

Broome v Cassell & Co Ltd [1972]

Young -v- Bristol Aeroplane Company - YouTube

Precedent in the Divisional Court | The Law Gazette


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