Common law, case law

1
Common law, case law precedent

• Gary Lynch-Wood
• Jackson Magoato

2
Common law

• This term is used
• to describe law that is common throughout the
  land
• to describe judge-made law, or precedent
• to distinguish law applied in the common law
  courts from that applied in the Chancery Court
  (equity)
• to distinguish systems without a codified base

3
Precedent

• Precedent is a term is used to describe law found
  in courts decisions
• Modern law is based heavily on legislation, but
  legislation once played a secondary role to
  judge-made law
• A judge does not have the same freedom to make
  law as the legislature, and must not be seen to
  be usurping its powers
• When writing essays and answering problem
  questions
• a key skill you must develop is the ability to
  identify precedents that support your argument

4
The importance of common law

• Some branches of our law are almost entirely the
  product of judges decisions (e.g. contract law)
• Their reasoned judgments have been reported in
  various law reports for nearly 700 years
• Other branches of law are based on statutes (e.g.
  environmental law)
• Case law has played an important part in the
  interpretation of those statutes
• Much of English law derives from statute and
  common law
• The function of the judge is to interpret the one
  and evolve the other

5
Understanding casesand statutes
6
K. Llewellyn, The Bramble Bush (1996)

• Case decisions
• Radical shifts are unusual
• A judge makes his rule in and around a specific
  case (and looking backward)
• His rule is commonly good sense, and very narrow
• Any innovation is confined regularly within
  rather narrow limits (partly by the practice of
  trying hard to square the new decision with old
  law
• Case law rules are applied as if they had always
  been the law
• Case law is flexible round the edges the rules
  are commonly somewhat uncertain in their wording,
  and not too easy to make definite

7
K. Llewellyn, The Bramble Bush (1996)

• Statute law
• Statutes are made relatively in the large, to
  cover wider sweeps, and looking forward
• They apply only to event and transactions
  occurring after they come into force
• They are recognised machinery for readjustment of
  the law
• They represent not single disputes, but whole
  classes of disputes
• They are political, not judicial in their nature

8
The meaning of precedent
9
The meaning of precedent

• In law, precedent has a meaning similar to its
  everyday use
• It relates to how later cases are affected by
  previous cases
• It is based on a general principle a rule of
  law that like should be treated alike
  (uniformity / certainty)
• It may be binding or persuasive (depends on the
  court hierarchy and the circumstances of the
  case)
• It can be avoided in a case that demonstrates
  sufficient differences

10
Precedent (a wide view)

• The idea that it is desirable for similar cases
  to be decided in similar ways
• The principle that consistency is an important
  aspect of justice
• Improved efficiency once a point of law has
  been decided it can be subsequently applied (no
  need for re-argument)
• Judicial comity mutual respect that judges have
  for their colleagues

11
Precedent (a wide view)

• Lord MacKay (ex Lord Chancellor) Who Makes the
  Law?, The Times, 3 December (1987)
• A scheme of precedent is clearly capable of
  providing important benefits. It assists
  litigants to assess the nature and scope of legal
  obligations and, to the extent that it enables
  them to predict the likely outcome of disputes,
  it restricts the scope of litigation. By allowing
  the vast bulk of disputes to be settled in the
  shadow of the law, a system of precedent prevents
  the legal apparatus from becoming clogged by a
  myriad of single instances. It reflects a basic
  principle of the administrations of justice that
  like cases should be treated alike and therefore
  generates a range of expectations from different
  participants in the legal process. Rules of law
  based on a system of precedent are therefore
  likely to exhibit characteristics of certainty,
  consistency and uniformity

12
Precedent (a narrow view)

• Courts may regard themselves as being bound by
  earlier decisions
• Peculiar to English Law (and some common law
  jurisdictions)
• Encapsulated by the doctrine of stare rationibus
  decidendis, or stare decisis
• All courts bind other lower courts, and some
  courts may bind themselves (vertical and
  horizontal dimensions of precedent)

13
Listen up! A cautionary note about the word
decision
14
The decision

• The decision of a case can mean different things
• Consider a case where Lynch-Wood won and
  Magoato Lost
• Here (subject to an appeal) Lynch-Wood and
  Magoato are bound by the decision
• This is res judicata, or a matter adjudicated
  upon
• In the context of legal analysis, a decision is
  something wider
• The reasoning process that went into the
  particular decision
• Why did Lynch-Wood win (or Magoato lose)?

15
The development of case law principles
16
Development of case law principles

• To understand case law.is to understand how it
  is that particular decisions by particular judges
  concerning particular parties to particular cases
  can be used in the construction of general rules
  applying to the actions and transactions of
  persons at large
• N MacCormick Why Cases have Rationes and What
  These Are. In L Goldstein (ed.) Precedent in Law
  (Clarendon Press, Oxford 1987).

17
Development of case law principles

• Principles of law derive from observing a line of
  cases on a specific topic
• Principles do not develop unless claimants bring
  cases
• A judge in each case draws on the principles
  established in earlier cases
• This can make the development of the law
  piecemeal (case-by-case)
• Lord Wright (in 1938) described how judges
• proceed from case to case, like the ancient
  Mediterranean mariners, hugging the coast from
  point to point, and avoiding the dangers of the
  open sea

18
Development of case law principles

• Imagine
• A case in 1920 decided that any person selling
  parrots was under an implied contractual duty to
  ensure the parrot could talk
• Lawyers immediately think of the wider
  ramifications
• Does this principle apply if the seller informed
  the customer that the parrot couldnt talk?
• Does this principle apply to related birds
  (budgerigars)?
• Wider still, is there a general principle to be
  found which might mean that a similar duty
  standards of health may apply to other animals?
• (J. Holland and Webb, J. Learning Legal
  Rules, OUP, 2010).

19
Development of case law principles

• This simple case may eventually be seen as
  producing a more general principle on the duties
  of sellers towards buyers a duty to deal in good
  faith
• Eventually, a textbook writer may sum up the case
  law in one general statement on the duties owned
  by vendors of goods
• On reflection, we might find that one case
  concerning a mute parrot is now applied to all
  cases on defective merchandise
• The process of moving from specific disputes to
  the development of general rules (i.e.
  precedents) which are then applicable to a wider
  range of cases, is central to common law
  reasoning
• Dead snails and exploding underpants
• Donoghue v Stevenson 1932 AC 562
• Grant v Australian Knitting Mills 1936 AC

20
The elements of precedent
Youre bound by this decision. But, come to
think about it, so am I
21
The elements of precedent

• Ratio decidendi the reason(s) for the decision
• vital element
• discovering it is not easy
• art of interpretation
• Obiter dictum things said by the way
• not a vital part of the decision
• does not bind future courts
• persuasive properties (persuasiveness often
  depends on who made them and where)
• Old distinction An opinion given in court, if
  not necessary to the judgment given of record,
  but that it might have been as well given if no
  such, or a contrary had been broachd, is no
  judicial opinion but a mere gratis dictum
  (Vaughan CJ, 1673 )

22
Ratio decidendi

• R. Cross, Precedent in English Law (Clarendon
  Press, Oxford, 1977)
• Any rule of law expressly or impliedly treated
  by the judge as a necessary step in reaching his
  decision, having regard to the line of reasoning
  adopted by him
• J. Salmond, Jurisprudence (Seventh Edition,
  1924).
• A precedent, therefore, is any judicial
  decision which contains in itself a principle.
  The underlying principle which thus forms its
  authoritative element is often termed the ration
  decidendi. The concrete decision is binding
  between the parties to it, but it is the abstract
  ratio decidendi which alone has the force of law
  as regards the world at large

23
Ratio decidendi

• J. Gray, The Nature and Sources of the Law
  (Second Edition, 1921)
• It must be observed that at the Common Law not
  every opinion expressed by a judge forms a
  Judicial Precedent. In order that an opinion may
  have the weight of a precedent, two things must
  concur it must be, in the first place, an
  opinion given by a judge, and, in the second
  place, it must be an opinion the formation of
  which is necessary for the decision of a
  particular case in other words, it must not be
  obiter dictum.
• A Goodhart Determining the Ratio Decidendi of a
  Case, Yale Law Journal (1930) 40, 161
• With the possible exception of the legal term
  malice, it is the most misleading expression in
  English law

24
Ratio decidendi

• It is, in part, the notion of ratio which gives
  the current English system of precedent it
  relatively strict character
• Being required to look at previous cases for
  ideas on how to deal with a new case is in itself
  something that reduces the range of options which
  is open to a judge
• But, as cases grow so the range of cases grow
• If a judge can choose amongst different
  (previous) decisions, and amongst different parts
  of different decisions, then a skilful or
  knowledgeable judge (or lawyer) will find it
  easier to find previous judgments which justify
  any decision they wish to arrive at
• But, the use of ratio calls for a much more
  precise use of previous cases
• Its not about finding arguments that we find
  useful, but about looking at past cases for lines
  of reasoning that are binding

25
Ratio decidendi

• If the facts of cases were identical, our task
  would be easy
• But they are not - facts change from case to case
• We must show that two (or more) cases are
  sufficiently similar to illustrate the same
  principle, so that the doctrine of precedent can
  be applied
• Comparing facts is important, but we must also
  try to see if the reasoning in the earlier case
  can be applied to the new set of facts in our
  case
• lawyers cite cases to give authority to their
  argument
• is there a case that provides authority for the
  point I want to make?

26
Ratio decidendi

• Holland and Webbs Zebras on the North Circular
• case 1 a man driving a Ford Mondeo runs over an
  old lady using a zebra crossing the man is held
  liable in negligence
• case 2 a woman driving a BMW runs over an old
  man who was crossing the road
• Should the woman in case 2 be found liable?

27
Ratio decidendi

• Dont jump to conclusions.its not enough to say
  its obvious, because it might not be!
• You may see a knight move and conclude that all
  chess pieces move in an L shape!
• Its not enough to say case 2 is the same as case
  1 (with no explanation)
• You must ask why was the man liable in case 1?
• there may be a law against driving Ford Mondeos
• there may be a law against running people over on
  zebra crossings (but not on any other part of the
  road)
• what was the whether like? how fast was the man
  driving in case 1?

28
Finding the ratio
29
Finding the ratio

• Referring to the work of Sir John Salmond and
  Professor John Chipman Gray, Arthur Goodhart
  says
• Both the learned authors, on reaching this
  point of safety, stop. Having explained to the
  student that it is necessary to find the ratio
  decidendi of the case they make no further
  attempt to state any rules by which it can be
  determined.
• A. Goodhart Determining the Ratio Decidendi
  of a Case, Yale Law Journal (1930) 40, 161
• .

30
Finding the ratio

• It can be difficult judgements can be long
• A judge in a later case may perceive the
  principle (ratio) that is to be derived from the
  earlier case as something different from that
  which the original judge intended
• why do you shop at the local mall rather than use
  the town centre?
• You wont find the sentence heres my ratio.
• Its a matter of skill and interpretation, built
  on experience

31
Finding the ratio

• A Goodhart Essays in Jurisprudence and the Common
  Law (Cambridge University Press, 1931)
• To determine the principle of a case, the first
  and most essential step is to establish what were
  the material facts on which the judge based his
  conclusion
• Common law legal reasoning is always reasoning
  about something it is never reasoning about an
  abstract concept
• Rations are statements of reasons about the law
  in relation to particular facts
• Goodharts phrase material facts is an
  important part of his theory of how to identify
  his ratio
• Facts are material when vital to the legal
  decision
• The ratio of the case is the conclusion based on
  the material facts

32
Finding the ratio

• A Goodhart Essays in Jurisprudence and the Common
  Law. (Cambridge University Press, 1931)
• The final step is to determine whether or not
  it is a binding precedent for some succeeding
  case in which the facts are prima facie similar.
  This involves a double analysis. We must first
  state the material facts in the precedent case
  and then attempt to find the materials ones in
  the second one. If these are identical, then the
  first case is a binding precedent for the second,
  and the court must reach the same conclusion as
  it did in the first one

33
Finding the ratio

• Some of Goodharts suggestions are problematic
• Stone J (1959) The Ratio of the Ratio
  Decidendi. Modern Law Review 22(6), 597.
• there will often be the gravest doubt as to what
  facts the precedent court explicitly or
  implicitly determined to be material
• If we cannot know, with certainty, what a
  material fact is how, when this lies at the
  centre of Goodharts thesis, are we to use the
  method?
• See also
• Montrose J (1957) Ratio Decedendi and the House
  of Lords. Modern law Review 20, 124
• Simpson A (1957) The Ratio Decedendi of a Case.
  Modern Law Review 20, 413
• Andrews N (1985) Reporting case law unreported
  cases, the definition of a ratio and the criteria
  for reporting decision. Legal Studies 5, 205.

34
Finding the ratio

• Cross R (1977) Precedent in English Law.
  Clarendon Press, Oxford.
• It is impossible to devise formulae for
  determining the ratio decidendi of a case
• Twining W, and Miers D (1999) How to do things
  with rules. Weidenfeld Nicolson, London.
• Talk of finding the ratio decidendi of a case
  obscures the fact that the process of
  interpreting cases is not like a hunt for buried
  treasure, but typically involves an element of
  choice from a range of possibilities

35
Finding the ratio

• You have to ask why did the outcome happened?
• It involves some explanation of the case
• Youre looking for the legal reasoning, coupled
  with your view of the material facts
• Ratio should be expressed as a principle
  possessing generality capable of being applied
  later
• Legal reasoning which does not decide the case
  cannot be ratio (it will be obiter)
• You may have multiple or inconclusive rationes
• Chaplin v Boys 1971 AC 256 where the HL agreed
  on the result, but were faced with three possible
  grounds for reaching their decision
• Read the Headnote but dont rely on it

36
Obiter dictum

• Cross R (1977) Precedent in English Law.
  Clarendon Press, Oxford.
• It is a truism.that dicta are of varying
  degrees of persuasiveness Dicta of the highest
  degree of persuasiveness may often, for all
  practical purposes, be indistinguishable from
  pronouncements which must be treated as ratio.
• MacCormick, Legal Reasoning and Legal Theory
• statements of opinion upon the law and its
  values and principles in their bearing on the
  instant decision, statements which in some way go
  beyond the point or points necessary to be
  settled in deciding the case.

37
Obiter dictum

• The main difference between obiter and ratio
• Courts must follow a ratio (whether they like it
  or not)
• Obiter statements are reflection on the law
• (Like the work of academic lawyers), they may
  convince others by their logic or rhetoric
• They are capable of being persuasive in the sense
  that anyones argument is capable of being
  persuasive
• W B Anderson Sons v. Rhodes 1967 2 All ER 850
  (Cairns J) when all five members of the House
  of Lords have all said, after close examination
  of the authorities, that a certain type of tort
  exists, I think that judge of first instance
  should proceed on the basis that it does exist

38
Obiter dictum

• Ask yourself did this line of reasoning affect
  the outcome?
• Look for classic signs
• if the situation had been this, then
• in other cases it might be necessary to look at
  things differently
• I do not have to make a finding on this
• if I had not been bound by the ruling in
• A judge may say what he would have decided had he
  not been bound by stare decisis

39
Obiter dictum

• DPP v Smith 2006 (QBD) 1 WLR 1571
• Def, who cut off the victims ponytail and some
  other hair on top of her head, was charged with
  assault occasioning ABH contrary to s.47 of the
  Offences Against the Person Act 1861
• At the close of the prosecution case, the def
  submitted that there was no case for him to
  answer as no ABH had been caused
• Justices concluded that it had not been
  established that the victim had been caused ABH
• Appeal by way of case stated
• Judges concluded that cutting off a persons hair
  amounted to ABH
• Obiter if paint or some other unpleasant
  substance were put on the victim's hair which
  marked or damaged it that could amount to ABH

40
Obiter dictum

• Obiter statements do not necessarily relate to
  the material facts
• Donoghue v Stevenson 1932 Lord Atkin made a
  number of observations about liability for
  negligent acts.
• one observation was that one owed a duty of case
  not to injure ones neighbour a person so
  closely affected by my acts that one must take
  care not to injure them
• This is an obiter statement it is not directly
  related to the facts
• Dont think obiter is unimportant
• One persons obiter may be the next persons
  ratio
• Lord Atkins neighbour principle has been
  extended to all manufacturers, repairers,
  consumer items, industrial accidents, road
  accidents, misstatements etc

41
Obiter dictum

• R. v Gotts 1992 2 AC 412
• Duress is not available as a defence to a charge
  of attempted murder.
• A pleaded not guilty to a charge of attempted
  murder and sought to raise a defence of duress.
• The trial judge ruled that this defence was not
  available on such a charge.
• Conviction was upheld by the Court of Appeal
• HL on a matter of policy the defence of duress
  is not available to a charge of attempted murder
• Dicta of Lord Griffiths in R. v. Howe 1987
  C.L.Y. 800 applied

42
Law Reporting
43
Law reporting

• Approximately, 200,000 cases are dealt with each
  year, but only about 25,000 are reported
• Law reporting dates back to medieval times with
  the publication of the Year Books in Anglo-Norman
• A landmark in the history of law reporting
  occurred in 1865 when the Inns of Court set up
  the Council of Law Reporting
• Popular reports are the Weekly Law Reports, the
  All England Law Reports and the Times Law Reports

44
The Courts
45
The courts

• Supreme Court / House of Lords
• Court of Appeal (Civil)
• Court of Appeal (Criminal)
• High Court
• Crown Court
• Inferior courts

46
The Supreme Court

• Much of what is said about precedent in the HL
  will apply to the Supreme Court
• It is assumed the new Court will follow the same
  approach
• It is assumed it will normally treat itself as
  bound by previous decisions of the House
• Decisions of the HL are binding on all courts in
  the country accept the House itself
• Historically, until 1966 the HL was bound by its
  own decisions
• But in 1966.......

47
The Supreme Court

• The Practice Statement 1966 1 WLR 1234
• Too rigid adherence to precedent may lead to
  injustice in a particular case and also unduly
  restrict the proper development of the law. They
  propose therefore to modify their present
  practice and, while treating former decisions of
  this House as normally binding, to depart from a
  previous decision when it appears right to do so.
• In this connection they will bear in mind the
  danger of disturbing retrospectively the basis on
  which contracts, settlements of property, and
  fiscal arrangements have been entered into and
  also the special need to certainty as to the
  criminal law
• This announcement is not intended to affect the
  use of precedent elsewhere than in this House.

48
Use of the Practice Statement

• Used sparingly
• R v. National Insurance Commissioners (ex parte
  Hudson) 1972 AC 944 (at p. 966) (Lord Reid)
• The Practice Statement was intended to apply only
  in a small number of cases in which previous
  decisions of the House were thought to be
  impeding the proper development of the law or to
  have led to results which were unjust or contrary
  to public policy
• Two years passed before the Court first exercised
  the power
• Conway v. Rimmer 1968 AC 910, where the HL
  unanimously overruled Duncan v. Cammell, Laird
  Co. 1942 AC 624 on a question of the discovery
  of documents

49
Use of the Practice Statement

• Addie Sons v. Dubreck 1929 AC 358
• The HL had held that an occupier of premises was
  only liable to a trespassing child who was
  injured by the occupier intentionally or
  recklessly
• British Railways Board v. Herrington 1972 1 All
  ER 749
• While an occupier does not owe the same duty of
  care to a trespasser which he owes to a visitor,
  he owes a trespasser a duty to take such steps as
  common sense or common humanity would dictate, to
  exclude or warn or otherwise, within reasonable
  and practicable limits, reduce or avert a danger
• An electrified railway line owned by the BRB
  fences in poor condition children seen on line
  plaintiff aged 6 injured and claimed damages
  for negligence
• Held that rule in Addie had been rendered
  obsolete by changes in physical and social
  conditions, and no longer provided a
  comprehensive statement of the occupier's duty
  towards a trespasser

50
Use of the Practice Statement

• Miliangos v. George Frank (Textliles) Ltd 1976
  AC 433
• The HL overruled Re United Railways of the Havana
  Regla Warehouses Ltd 1961 AC 1007
• In the Re United Railways case, it had been held
  that damages in an English civil case could only
  be awarded in sterling
• In Miliangos the HL held that damages can be
  awarded in the currency of the foreign country
  specified in the contract
• Lord Wilberforce once a clear conclusion is
  reached as to what the law now ought to be,
  declaration of it by this House is appropriate.
  The law on this topic is judge-made it has been
  built up over the years from case to case. It is
  entirely within this Houses duty to give the
  law a new direction in a particular case where,
  on principle and in reason, it appears right to
  do so. I cannot accept the suggestion that
  because a rule is long-established only
  legislation can change it

51
Use of the Practice Statement

• See also income tax case
• Vesty v. Commissioners of Inland Revenue 1979
  3 All ER 976 the HL overruled its decision in
  Congreve v. Commissioners of Inland Revenue
  1948 1 All ER 948
• See also case relating to the frustration of
  contracts
• Paal Wilson Co. A/S v. Paartenrederei Hannah
  Blumenthal 1983 1 All ER the HL declined an
  invitation to depart from it previous decision
  given only two years earlier in Bremer Vulkan v.
  South India Shipping Corpn 1981 AC 909
• NB A second attempt to persuade the HL to
  depart from the Bremer Vulkan decision was
  unsuccessful in Food Corp of India v. Antclizo
  Shipping Corp 1988 2 All ER 513
• Bremer Wilson decisions ultimately modified by
  the Arbitration Act 1950 (s.13A)

52
Use of the Practice Statement

• Anderton v. Ryan 1985 AC 560
• The appellant, on a construction of the Criminal
  Attempts Act 1981, was held not guilty of
  attempting dishonestly to handle a stolen video
  recorder
• She thought the goods had been stolen but in
  fact there was not evidence that there had been
• R v. Shivpuri 1986 2 All ER 334
• Another case on the Criminal Attempts Act 1981
  the appellant was held to be guilty of attempting
  to commit a drugs offence
• Hed been caught with a suitcase which he
  thought contained prohibited goods in fact, it
  contained harmless matter
• See over....

53
Use of the Practice Statement

• R v. Shivpuri 1986 2 All ER 334
• His conviction was upheld by the HL because he
  had intended to commit the full offence and had
  done acts which were more than mere preparatory
  to the commission of the intended offence within
  the meaning of s.1(2) of the 1981 Act.
• Mrs Ryan had escaped conviction in spite of the
  clear words of s.1(2) a person may be guilty of
  attempting to commit an offence to which this
  section applies even though the facts are such
  that the commission of the offence is impossible
• In Anderton v. Ryan the HL had held, in effect,
  that these plain words did not mean what they said

54
Use of the Practice Statement

• See also
• R v. G 2003 1 WLR 1060 HL overruled its
  decision in R v. Caldwell 1982 AC 341 on the
  meaning of the word reckless in s.1 of the
  Criminal Damage Act 1971
• On the same day as it decided R v. G, the HL in
  Rees v. Darlington Memorial Hospital NHS Trust
  2003 3 WLR 1091 refused to overrule McFarlane
  v. Tayside Health Board 2000 2 AC 59
• In McFarlane, it had been held that the cost of
  bringing up a normal healthy child (born as a
  result of negligent sterilisation advice given to
  the parents) was not recoverably in the law of
  tort
• In Rees, the claimant, who suffered from severe
  visual impairment and was afraid she would be
  unable to care for the child, underwent a
  negligently performed sterilisation operation at
  the def hospital she gave birth to a normal
  health child
• All 7 judges said McFarlane was correctly
  decided

55
Use of the Practice Statement

• See also
• In R v Purdy v. Director of Public Prosecutions
  2009 3 WLR 403 the HL departed from R (Pretty)
  v. Director of Public Prosecutions 2001 3 WLR
  1598 in which it had been held that Art. 8
  (respect for private life) of the European
  Convention on Human Rights did not confer a right
  to decide when or how to die
• The HL in Purdy preferred instead to apply the
  decision to apply the decision of the European
  Court of Human Rights in Pretty v. United Kingdom
  (2002) 35 EHRR 1
• The European Court had disagreed with the Houses
  decision in the Pretty case

56
Avoiding precedents
57
Avoiding precedents

• Affirming and reversing
• Both refer to the judgment of the appeal court in
  respect of the judgment of a lower court and in
  respect of the same case
• Affirming the appeal court agrees and confirms
  the judgment
• Reversing the appeal court disagrees and
  overturns the judgment
• Neither denote an issue of precedent
• Both could be used in conjunction with another
  term relating to a previous case

58
Avoiding precedents

• Approving, overruling, distinguishing,
  disapproving
• Where a court considers a precedent which is
  relevant but not binding (e.g. from a lower court
  or obiter)
• Approving the court agrees with the precedent
  and follows it
• Overruling the court considers the precedent is
  wrong and therefore should be abandoned
• Distinguishing a precedent that would otherwise
  cover the case is different in some material way
• Disapproving a less drastic alternative - the
  effect of expressing such dissent is to weaken
  the authority of the earlier case

59
Pros and cons
60
Pros

• Notions of equity/justice similar cases should
  be treated in the same way
• Can bring about law reform much quicker than the
  Parliamentary process
• Promotes certainty
• Relies on the idea of decisions being promoted
  from the top of the system decisions, which are
  made by the best judges, are perpetuated and
  guide the lower courts
• Makes life easier for lawyers!

61
Cons

• Makes life harder for lawyers!
• Does it work properly?
• May impede the proper development of the law
• Places undue stress on the past
• Bad rulings are perpetuated - fixity
• Judges can only rule on the cases before them
• Do we trust the judges?
• Gives false appearance of coherence
• Legitimacy problem judges are unelected

62
Cons

• Precedent can have drawbacks if judges feel bound
  to follow a previous case even if this means that
  a later decision seems unjust.
• Elliot v C (A Minor) 1983 2 All ER 1005 (Goff
  LJ)
• although, of course, the courts of this
  country are bound by the doctrine of precedent,
  sensibly interpreted, nevertheless it would be
  irresponsible for judges to act as automata,
  rigidly applying authorities without regard for
  consequences.
• In this case, the CA reluctantly followed the
  authority of a previous case (R v Caldwell
  1981) and upheld the conviction of a 14 year
  old girl with learning difficulties for criminal
  damage, even though she herself could not have
  appreciated the risk her actions posed.