Doctrine of Precedent

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Doctrine of Precedent
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Key Questions

• What is precedent? (stare decisis)
• Why have it?
• How does it work, i.e who binds who and when?
• What does ratio decidendi mean? And obiter
  dictum?
• How does European law impact upon the rules of
  precedent?

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What is the doctrine of precedent?

• Often called the Doctrine of Stare Decisis
• Literally meansstand by things that have been
  decided
• Put simply courts in the UK are bound by the
  decisions of earlier courts on similar issues
  unless they can be distinguished.

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Why have it?

• Not all systems have this characteristic of
  common law jurisdictions where judgments are a
  major source of legal principle
• Designed to ensure consistency and legal
  certainty
• Reflects our hierarchical court structure lower
  courts more constrained than superior courts

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How does it work?

• Basic rule is that precedents created by a higher
  court bind lower courts
• House of Lords decisions therefore bind all lower
  courts
• Does the House of Lords bind itself?
• Yes but see also the 1966 Practice Direction
• Benefits and problems

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Application of the doctrine to the Court of Appeal

• Court of Appeal is bound by House of Lords
• But what if the HL decision is per incuriam?
• In general the CA is also bound by previous CA
  decisions EXCEPT
• Conflicting judgments
• Previous decision overruled by HL
• Per incuriam decisions
• EWCA judgments in NI and visa-versa (persuasive)

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A closer look at how the doctrine works in
practice..

• Courts are only bound by the previous decision in
  similar cases unless they can be distinguished or
  are per incuriam.
• Must identify the binding part of the earlier
  decision assess whether the two cases are in
  fact similar.

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Identifying the Binding Decision

• When we talk about courts being bound by previous
  precedent they are bound only by the ratio
  decidendi of the previous decision.
• RD of a case can be defined as the material facts
  and the decision thereon. In other words, it is
  the core reason for the decision.
• Defining the concept of a ratio in abstract terms
  is easy(ish), locating it in a specific case can
  be another matter!
• This process is a key legal skill and takes years
  to refine it will be fundamental to the success
  of your legal studies

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The concept of obiter dictum

• Obiter Dictum is regarded as something said by
  the way but is not central to the core legal
  reasoning (i.e., the ratio) that determines the
  case.
• Obiter usually arises in course of lengthy
  judgments
• That part of the judgment deemed to be obiter
  does not bind subsequent courts the doctrine of
  precedent only applies to the ratio.

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Problem of divergent judicial opinions.

• Finding the ratio can become much more complex
  when dealing with decisions of senior courts
  where each judge delivers a separate decision.
• Majority and dissenting decisions
• Majority may agree on the decision but for
  different reasons

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Can the earlier case be distinguished?

• Doctrine of precedent only binds a court where
  the material facts are similar to an earlier
  case.
• If the material facts of the previous case can be
  distinguished then its ratio will not bind the
  later court.

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UK Precedent and EU law

• EU law enjoys primacy over domestic law
• The HL must therefore depart from inconsistent UK
  precedents in order to give effect to EU law
  (see, e.g., R v Secretary of State for Transport,
  ex p Factortame 1991 1 AC 603)
• Lower courts are also able to depart from the
  rule of precedent where a previous UK courts
  decision is at odds with a decision of ECJ ruling
  or EU legislation.

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The impact of the Human Rights Act 1998

• Domestic precedents must yield to conflicting
  human rights requirements when the case is heard
  in the court that established the precedent see,
  e.g., Ghaidan v Godin-Mendoza 2004 3 All ER 411
• But what if the issue arises in a lower court?
  Lambeth LBC v Kay Leeds CC v Price 2006 4 All
  ER 128 lower court should follow precedent of
  higher court save in extreme circumstances

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Concluding comments

• Understanding the legal weight of a precedent
  or decision
• Mastering the skills of reading judgments!

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Take a break
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A precedent case study

• Negligence
• Hill v Chief Constable of West Yorkshire 1989
  AC 53
• How it was subsequently followed
• What European law said
• How the precedent has survived

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What is negligence?

• Tort law
• Duty of care breach causation
• Duty of care? Foreseeability of harm proximity
  of relationship between P and D fair, just and
  reasonable to impose liability (Caparo Industries
  v Dickman 1990 2 AC 605)

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The Hill case - facts

• Plaintiff was mother of the Yorkshire Rippers
  last victim
• Argued that the police had been negligent when
  investigating the Rippers activities and that
  this had caused their daughters death
• Did the police owe a duty of care? (note that the
  test different at the time of the case, i.e.
  Caparo post-dates Hill)

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1989 Hill Ruling

• Police did not owe a duty of care
• No proximity of relationship
• And arguments of public policy resources
  time public less well served etc
• Court followed the decision in Rondel v Worsley
  1967 3 All ER 993

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4 years later, a similar case aroseOsman v
Ferguson

• Teacher formed an unhealthy attachment to a
  15-year-old male pupil
• Patterns of harassment and the police had been in
  contact with the teacher and with the boy
• Teacher then shot the boy and killed his father
• Boy and mother sued but did the police owe a
  duty of care?

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Osman v Ferguson 1993 4 All ER 344

• Court held that it was arguable that sufficient
  proximity existed
• But concluded that no duty of care was owed
  because of the rule of public policy in Hill
• As a result of these cases, the Police
  effectively enjoyed an immunity from suit and
  did not owe legal duty of care.
• New cases were therefore struck-out as
  disclosing no reasonable cause of action. This
  meant that cases did not go to a full hearing

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Osman went to ECtHR

• ECtHR found that the immunity violated Article 6
  ECHR (Osman v UK 1999 1 FLR 193)
• Although the ECtHR has since changed its mind in
  part UK courts have become a little bit less
  absolute about duties of care the police

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So what about the decision in Hill?

• It is still a precedent, although one that will
  now be followed much more on a case-by-case
  basis, rather than on a category of case basis
  (categories being apt to give rise to
  immunities). And note, e.g., the demise of Rondel
  v Worsley
• For example in Brooks v Metropolitan Police
  Commissioner 2005 2 All ER 489 Hill applied,
  but with modification (see, in particular, the
  opinion of Lord Steyn at paras 27-30)

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Conclusions

• Precedent, for some, defines the working of the
  common law system
• And flexibility, for others, defines the common
  law
• Hill is perhaps an example of both assumptions in
  operation