Binding Precedent – Judicial Precedent ADV+ DIS PDF

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BINDING PRECEDENT – JUDICIAL PRECEDENT Advantages and disadvantages of precedent The English Legal System is a common-law based system. At the heart of the common law system is the doctrine of binding precedent (stare decisis – translated as ‘let the decision stand’. More precisely stare rationibus decidendis, keep to the decisions of past case). The basic proposition of this doctrine is that a case should normally be dealt with in the same way as a previous case. In England and Wales the operation of the doctrine of binding precedent is two-fold. First, all courts stand in a definite relationship to one another. A court is bound by the decisions of a court above itself in the hierarchy (vertical application). Second, some courts are bound their own previous decisions (horizontal application). The Supreme Court stands at the summit of the English court structure and its decisions are binding on all courts below it (which include: (i) The Court of Appeal, (ii) High Court, (iii) Crown Court, (iv) County Court and (v) the Magistrates’ Courts) in the hierarchy. The following of precedents is a convenient time saving device as inferior courts have guidelines to follow. Judges do not have to analyse too much work and they do not have to look at minor details. Howevever, the advantage of saving time has the disadvantage that judges start giving decisions mechanically and therefore do not use their minds to a possible distinction between the two cases. Another advantage put forward is that of consistency. This refers to the fact that like cases are decided on a like basis and are not apparently subject to the whim of the individual judge deciding the case in question. This aspect of formal justice is important in justifying the decisions taken in particular cases. The doctrine of binding precedent also prevents mistakes by inferior court judges because they have guidance from the superior court. It also ensures impartiality because judges cannot favor litigants, when they are bound the decision of the Superior court. The second mode of operation of the doctrine of binding precedent is horizontal application. This means that some courts are not only bound by the decisions of the higher courts in the hierarchical structure but also bound by their own previous decisions. Until 1966 the House of Lords was bound by its own previous decisions. This practice was established in the mid nineteenth century and reaffirmed in 1898 in London Tramways Co Ltd v London County Council. The reason was that it was felt that decisions of the highest court should be final in the public interest so that there would be certainty in the law and an end to litigation.

However, there was severe criticism of the practice since the 1930s and finally in 1966 the House of Lords was freed from being bound by its previous decisions. The Lord Chancellor Gardiner made a practice statement on behalf the Lords (and himself) indicating that the House of Lords would in future regard itself free to depart from its previous decisions. The reason which was given to free the Lords was that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. In Khawaja (1983) Lord Scarman said that the Practice Statement of 1966 indicated that the House of Lords, before departing from a precedent of its own making, must be satisfied on two counts. First, that continued adherence to precedent would involve the risk of injustice and would obstruct the proper development of the law. Secondly, that a departure from the precedent is the safe and appropriate way of remedying the injustice and developing the law. The HOL has generally followed the Practice Statement of 1966. It has taken the opportunity to correct its errors to prevent injustice and to develop law in the interest of public policy, social development and to bring it in consistency with Common law countries but has exercised its power sparingly in the interest of consistency and certainty in law. The Court of Appeal is bound by decisions of the Supreme Court, even if it considers them to be wrong, unless they can be distinguished on the facts, or on the law, or unless they were given per incuriam (IM Properties plc v Cape and Dalgaleish (1998)). The Court of Appeal is also bound by its own pervious decisions. The rule that the Court of Appeal is bound by its previous decisions was originally selfimposed in the case of Young v Bristol Aeroplane Co Ltd (1944). One rumbling question has been whether the Court of Appeal should be free to overrule its own previous decisions like the House of Lords. From the time of the Practice Statement affecting stare decisis in the House of Lords in 1966, Lord Denning MR carried on a one-man campaign to secure a change of practice in the Court of Appeal. The attack was on two fronts. First, he asserted that the Court of Appeal was no longer bound by the decisions of the House of Lords. Secondly, he claimed that the Court of Appeal was no longer bound to follow its own decision as a general rule and not just in the exceptional circumstances laid down in Young v Bristol Aeroplane Co Ltd. There was very little weight in his campaign on the vertical front as the principle hallmark of the common law system is that inferior courts are bound by the decisions of superior courts. The important cases in which he campaigned, failed and was castigated include: i. Conway v Rimmer (1968); ii. Broome v Cassell and Co Ltd (1971); iii. Miliangos v George Frank (Textiles) Ltd. (1976); and iv. Paal Wilson & Co A/S v Paartenrederei Hannah (1982).

The more realistic campaign was however, on the horizontal front. The Court of Appeal is no longer bound to follow its own decisions. In 1969, in the case of Gallie v Lee he said that he did not think that the COA was bound by its prior decisions after the Practice Statement 1966. He argued that like the House of Lords it was a self imposed restraint and if the House of Lords can free themselves so can the Court of Appeal. However, he was not able to persuade the other members, especially Russell LJ who distinguished the position of the two courts by stating as the HOL existed to correct the errors of the COA the COA should remain bound by the principle of stare decisis. The next case in which he repeated his view was Tiverton Estates Ltd v Wearwell Ltd (1975). However, this time too he was unable to persuade his brethren to free the COA from the self-imposed restraint. Lord Scarman LJ in his disagreement emphasized the importance of certainty and consistency at the intermediate level. Although these failures did have an affect on Lord Denning for a while however, he reopened the matter again in Davis v Johnson (1979) and this time was able to persuade the majority that the COA should be free to depart from its decisions. His argument was that there is no virtue to leave error to continue and although the HOL is there to correct the errors of the COA, it may never have an opportunity to correct the error and thus the error may be perpetuated indefinitely, perhaps forever. However, when Davis v Johnson reached the HOL, the HOL held that the COA is bound to follow its decisions as laid down in Young v Bristol. The view is that: i. That a superior court is to correct errors, and ii. Certainty is more important at the intermediate level. The advantage of consistency has the disadvantage that the law in relation to any particular area may become ossified on the basis of an unjust precedent with the consequence that previous injustices are perpetuated. An example of this is the long delay in the recognition of the possibility of rape within marriage, which was after a long time recognized (R v R1[7]). As C. K. Allen said “error is error and should not be allowed to spread its roots”. In the end it may be said that retaining the doctrine of binding precedent is desirable but the Court of Appeal needs to have a greater freedom then at present. Certainty is surly desirable but as Professor Goodhart stated that “certainty is desirable only to a certain extent”.

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