Binding and Persuasive Precedent PDF

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Sample essay answer. This is a part of the Doctrine of Binding Precedent. It may help others to understand the angle easily....

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‘Whether a precedent is binding or persuasive it may be no more influential than obiter dictum remarks when a court is reaching its decision.’ Explain the difference between binding and persuasive precedents and discuss how courts use precedent and obiter dicta in the English legal system.

The following notion will be explained in light of doctrine of judicial precedent focusing on the types precedents and influence of obiter dictum/dicta in reaching decision, with relevant case laws. The doctrine of Judicial Precedent is very strong in English law as it ensures fairness and consistency and highlights the importance of case law in our legal system. The doctrine is based upon ‘stare decisis’ which means standing by the previous decisions. This means when a particular point of law is decided in a case, all the future cases with the same material will be bound by that decision. According to Sir Rupert the binding precedent is “all courts must consider the relevant case laws, secondly lower courts must follow the decision of the court above them in hierarchy. Lastly, judges of appellate courts are usually bound to follow their previous decision”. For example the ratio of Carlill v Carbolic Smoke Ball Co is followed for the purpose of unilateral offer situations. Generally two types of precedents can be found in the English law i.e. authoritative or binding precedent and persuasive precedent. Authoritative precedent binds the court in the same position and all the lower courts in the hierarchy, eg- the Court of Appeal is bound to follow the House of Lords decision and if there is no higher court’s decision for a case, the Court of Appeal will follow its previous decision as confirmed in Young v Bristol Aeroplane Co Ltd. On the other hand persuasive precedent doesn’t actually have to be followed and intended to pursue the court to make a particular decision. However, sometimes it may influence judges to reach a decision as it also includes case law from other countries judicial decisions and the Privy Council (the senior appellate court for Commonwealth cases) decisions have been traditionally merely persuasive on the English courts because of the status of the judges. Nonetheless, the Privy Council decisions may be binding despite being persuasive as seen in the case of Attorney General for Jersey v Holley. When a decision is made by the judge, it contains a large amount of material. Generally, decisions contain material about the facts of the case, arguments that were made in the court and the reasoning behind the decision as it is necessary to be able to determine what a point of law is. Ratio decidendi and obiter dicta are found in a decision given by the court. Ratio decidendi is “the reason for deciding the case” i.e. the legal principle/decision of a case which is authoritative (binding) and applied in the later cases with the same material fact or are looking at the same point of law. While delivering a judgment, the judge will set out their reasons for reaching a decision.The reasons that are essential for them to be able to attain their decision corresponds to the ratio decidendi of the case. Sir Rupert Cross defined ratio as “any rule expressly or impliedly treated by the judge as a necessary step in reaching

his conclusion”. Thus, ratio is the part of the case which stands out to be binding on the other cases with the same material fact and forms as an authoritative/binding precedent. Obiter dictum/dicta directs to “other things said by the way” and usually aren’t binding, they may be referred to as persuasive precedent’s form. It’s just other legal arguments and statements found in the judgement but not forming a part of the ratio decidendi. It can be any hypothetical situations considered by the court. Eg: in Hill v Baxter, the judge talked about a situation (what would happen if a swarm of bees flew into the car) that had nothing to do with the case. Such hypothetical discussion is not binding and is obiter dicta. However it's interesting enough to note that very occasionally the obiter dictum parts, being a persuasive precedent of the judgment, may be of the most importance for the future development of case law. This happened in the very recent case of Ivey v Genting Casinos Ltd (2017) where the obiter dicta of Lord Hughes of Supreme Court was applied which apparently overruled the case R v Ghosh changing the law for the purpose of dishonesty in criminal law. And this was confirmed in the more recent case of R v Barton and Booth (2020) by the Court of Appeal decision. Moreover, the case R v Howe & Bannister outlined obiter dicta was followed by the House of Lords in R v Gotts (1992) which held duress as a defence was not sufficient for the purpose of attempted murder. Hence, it is vividly evident that obiter has been playing a vital role in recent days. Nonetheless, unanimously advocating the decision signified that it got very persuasive and made the lower courts prone to follow. The Supreme Court appears to have made a notable change to the criminal law in an obiter statement in a civil case....