The Doctrine of Binding Precedent PDF

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BINDING PRECEDENTThe English Legal System is a common law based system & at the heart of the common law is the doctrine of binding precedent. This doctrine requires courts to follow decisions reached in previous cases (sharing the same material facts). It is based on the maxim of ‘stare deci...

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BINDING PRECEDENT

The English Legal System is a common law based system & at the heart of the common law is the doctrine of binding precedent. This doctrine requires courts to follow decisions reached in previous cases (sharing the same material facts). It is based on the maxim of ‘stare decisis’, meaning ‘let the decision stand’ & its logic lies essentially in treating like cases alike. It is important to distinguish between ‘ratio decidendi’ & ‘obiter dicta’. The ratio of a case is the principle of law on which the decision is based (legal reasoning for the decision) & this part of the judgment forms a binding precedent for future cases. An obiter refers to any part of a judgment not forming the ratio; including dissenting judgments and hypothetical situations & it is not binding but it maybe of persuasive authority for future cases.

The Court hierarchy is central to the operation of binding precedent (vertical application). Decisions of higher courts are binding upon those below them in the hierarchy. Thus, decisions of the Supreme Court (SC) are binding upon the Court of Appeal (COA), & the COA decisions bind those below it. It should be pointed out that only the SC, COA, & High Court create binding precedents within UK. This provides a chain of certainty and clarity as to which previous decisions will be relevant to a court in a given case. Moreover, in relation to community law, the decisions of the European Court of Justice (ECJ) are binding on all UK Courts as illustrated by the cases of Van Gend en Loos (1963)], Costa V ENEL, Simmenthal and International Handelsgesellschaft but the EU (Withdrawal) Bill 2017 is expected to put an end to the jurisdiction of the ECJ. Moreover, under the Human Rights Act 1998, the decisions of the European Court of Human Rights serve as persuasive precedents and are not binding on the UK Courts as confirmed by cases such as Pinnock v Manchester City Council, R. v Horncastle and Posteh (2017). The second mode of operation of binding precedent is horizontal; meaning that some courts are not only bound by the decisions of higher courts but also bound by their own decisions.

Historically the House of Lords (now SC) was bound by its own previous decisions. This practice was established in the 1850s and reaffirmed in 1898 in the case of London Tramways. The reason to do so was to achieve certainty in law and put an end to litigation. However, the practice received many criticisms since the 1930s and Lord Gardiner’s 1966 Practice Statement ruled that the HOL may depart from its previous decisions when it saw fit to do so; the logic being to prevent injustice and promote the development of law.

The fact that the House of Lords (HOL) was not bound by its previous decisions anymore meant that they could correct its own errors. The first overruling came in Conway V. Rimmer (1968) in which the HOL overruled Duncan (1942) ; the reason being the changed conditions as Duncan had been decided in wartime and could not be justified in peacetime . In British Railway Board V. Herrington (1972) the HOL overruled Addie and Sons (1929); on the grounds of changed social and physical conditions since 1929. Whereas, the case of Miliangos (1976) lead to Re United Railways of Havana (1961) being overruled; the logic being changing foreign exchange conditions.

Additionally, the HOL has also overruled longstanding decisions as illustrated by cases such as Vestey (1990), R V G & R (2004) and Lagden (2003). Whereas, in the case of Shuvpuri (1986); the HOL overruled within twelve months its own decision in Anderton v Ryan. Other following cases such as R v. Howe (1987), Murphy (1990) and Arthur J.S Hall (2000) illustrate the HOL departing from its earlier decisions.

However, at times the HOL has refused to overrule past decisions even if they were questionable. In the case of Jones (1972) ; four out seven Lords held that the earlier decision in Re Dowling (1976) was incorrect but the majority refused to overrule. Similarly, in Kansal (2001), the Lords refused to depart from their earlier decision in R V Lambert even though the majority held that it was wrongly decided. These cases illustrate the desire of the Lords to maintain consistency and uniformity.

Moreover, the HOL has been reluctant in overruling cases of commercial law as can be seen by the cases of Paal Wilson (1983) and Food Corporation of India (1988); where the HOL refused to overrule Bremer Vulkan (1981). This shows that the HOL wants certainty regarding commercial law.

In Khawaja (1983); Lord Scarman stated that the 1966 Practice Statement indicated two requirements that had to be satisfied before the HOL would depart from its own previous decision. Firstly, that following a particular precedent would create a risk of injustice and half the development of law. Secondly, that a departure from that precedent is safe and appropriate way of remedying the injustice and developing the law.

Hence, the HOL has generally followed the 1966 Practice Statement. It has taken positive steps to correct its own errors so that justice prevails and law is developed in the interest of public policy and social development but it has exercised its power sparingly in the interest of consistency and certainty in law.

The COA is generally bound by the decisions of the HOL unless: they can be distinguished on the facts or law; they were given per incuriam [IM Properties (1998)]; and if a decision of the HOL predated the coming into force of the Human Rights Act 1998 as happened in the case of R (H) V. Secretary of State for the Home department (2002) where the COA declined to follow Oxford (1998).

Additionally, The COA is generally bound by its previous decisions but in Young (1944), Lord Greene set out three exceptions where it could depart from its previous decisions: when there are two previous conflicting decisions of the C OA, the Court can choose which decision to follow [Tiverton (1975)]; when a previous decision of the COA conflicts with a later decision of the SC, the COA must not follow its previous decision due to the superior status of the SC [Family Housing Association (1990)]; & when a decision of the COA has been made ‘per incuriam’ meaning ‘through want of care’ [Bonalumi (1985)].

Moreover, due to the supremacy of EU law, when a previous decision of COA conflicts with a provision of EU law, the court will not follow its precedent. The criminal division of the COA is less constrained by its own precedent than the civil division [R v. Spencer (1985)]. The criminal division takes a flexible approach to the application of past precedents as an individual’s liberty is often at stake and the civil is not constrained by an earlier decision [Kadhim (2001)]. The divisional courts also enjoy the same freedom to depart from their previous decisions, in the same conditions as the COA [Police Authority for Huddersfield (1947)].

CAMPAIGN

Ever since the Practice statement of 1966, Lord Denning carried out a one man campaign to secure a change of practice in the COA. The attack was on two fronts. First, he asserted that the COA was no longer bound by the decisions of the HOL. Secondly, he claimed that the COA was no longer bound by its own decisions as a general rule (not just the exceptional circumstances set out in Young (1944)). His campaign completely failed and was castigated on the vertical front as can be illustrated by the cases such as: Conway (1968), Broome (1971), Miliangos (1976) and Paal Wilson (1982). However, a more realistic campaign was on the horizontal front but in the cases of Gallie (1969) and Tiverton (1975); he was unable to persuade the other law lords. Whereas, in Davis (1978); he was able to persuade the majority of the COA but the case reached the HOLs on appeal and his campaign failed on the horizontal front as well....