Doctrine of the precedent

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English law is based on statute but its origins and its continuing evolvement rely heavily on the doctrine of binding precedent, in order to deal with matters not covered by statute and to enable progressive development of the law. Precedent is a very important source of English law and its binding nature while not preventing development of the law, is important in providing certainty in the law.

Judicial precedent also known as judicial decision which means law made by judges when a judge makes law, the case is known as precedent. The essence of the doctrine of binding precedent is that the decisions of courts higher up the hierarchy of courts are binding upon courts lower down in the hierarchy. Future judges must stand by the decision, which is known Stare Decisis. If cases decisions are recorded and judges in later cases follow these decisions a code of conduct can be built up.

Ratio decidendi, in literally means the reasons for the particular decisions, is the statement of law on which the judge based his decision. It is part of the judgement which is capable of forming a binding precedent which means they must followed in later cases. It is important to realize that the ratio decidendi has nothing to do with the facts of the case; it is a statement of law which is carried down to later decisions. In the case of Saloman v Saloman & Co Ltd (187), the ratio decidendi provides that where a person or persons carry on business through a company, the debts of the business are debts of the company and not of those persons.

Obiter Dicta , literally means other things which were said, statements of law which did not form the basis of the decisions. As a result obiter dicta are not binding on future judges. However such statements may assist judges in the future if they are relevant are relevant and based on good sense. As such they are persuasive authority. In the case of Candler v Crane Christmast & Co (151) Lord Denning disagreed with the majority view of judges in the case. He said that an accountant should owe a duty of care to those who ask for and rely upon his advice and who eventually suffer loss because that advice was did not become part of the reason for the decision. It is known as a ¡®dissenting judgement'. However, Lord Denning's comments were of enormous relevance to the evolution of the law of the tort of negligent mis-statement and were later referred to in the case of Hedley Bryne & Co v Heller & Partners (16) when the law was eventually changed to reflect Lord Denning's initial viewpoint.

If a decision is of lower court, a judge need not follow. However, he will consider the law laid down in the case and not dismiss them out rightly. The operation of the doctrine of binding precedent is dependent on the hierarchy system.

House of Lords is the highest court in England and Wales and its decisions are binding on all other courts. Decisions of the House Of Lords are binding on all courts in the hierarchy i.e Court of Appeal, High Court, Crown Court, Country Court and Magistrate Court. Before 166, it is bound by its own previous decisions, until 166, Practice Statement the are not absolutely bound by their own decisions if they consider, in exceptional circumstances that they do not want to follow the ratio decidendi laid down. The House of Lords ruled in London Tramways v. London Country Council (188) A.C 75 that it was bound by its own decisions, the House of Lords is now free to depart from its own earlier decisions ¡® where it appears right to do so' and although this power is not used frequently a useful illustration of the new power in operation was provided in Miliangos v George Frank (Textiles) Ltd (176) overruling the earlier House of Lords decisions in Re United Railways of Havana and Regla Warehouses Ltd (160).

The Civil Division of the Court of Appeal is bound by decisions of the House of Lords, and by its own earlier decisions but there are exceptions, and its decisions are binding on all inferior courts. Exceptions to the principle that it is bound by its own earlier decisions arise where such a decisions conflicts with a later decision of the House of Lords or where the earlier decision was given per incuriam (i.e, a relevant statute or case was overlooked). The Criminal Division of the Court of Appeal is bound by decisions of the House of Lords, and also by its own previous decisions, but it was a wider power than the Civil Division to overrule its own previous decisions and can do so where the law has been ¡®misapplied or misunderstood' in the earlier case and injustice may be caused to an appellant.

There are three exceptions as laid down by Lord Greene MR in Young v Bristol Aeroplane Co Ltd (144), first where there is a conflict between two previous decisions of the Court of Appeal. It is up to the present Court of Appeal to decide which case to be followed. Tiverton Estates Ltd v Wearwell Ltd (174). Second exceptions, a previous decision of the Court of Appeal have been overruled by the House of Lords expressly or impliedly. In this situation the Court of Appeal must follow the decision of the House of Lords. Family Housing Association v Jones (10). The third exception, the previous decision of the Court of Appeal is per incuriam, this is because it was decided in ignorance of a statute. Williams v Fawcett (185). Court of Appeal can depart from a previous decision of its own if it is in conflict with European Community law S. European Communities Act 17.

The High Court of Justice, a single High Court judges is bound by the decisions of higher courts (e.g, the Lords and the Court of Appeal). However, a single High Court judge is not bound by the decision of another single High Court judge. When two or more High Court judges are sitting together (as a Divisional Court) their decisions are binding on any other Divisional Court of that division and upon a single High Court judge.

Other Courts such as Crown Courts, Country Courts, and Magistrates Courts, decisions of these courts are not usually reported. They are bound by the decisions of higher courts. The Crown Courts deals predominantly with criminal matters. The Country Court deals with civil matters of all types, and the Magistrates Court deals with a wide range of criminal matters and come civil matters. Decisions by these courts do not bind any courts. Thus, these courts do not create precedents.

These are advantages of precedent, reaching decisions as a result of the doctrine of precedent makes the system consistent. It becomes easier to predict the result of litigation and it allows the English Legal System to be flexible. Decisions can be adapted and extended to reflect changes in society. The law is clear; as it is only the ratio decidendi that is followed it is easier to see what law is being applied.

Since there is a precedent there is certainty as to what the law is and what would the outcome be in a particular situation. This brings about predictability and consistency. It also saves courts' time because a point of law need not be re-argued if there is an existing precedent. Judges are able to develop the law without the need to wait for the Parliament to make law. Laws are created out of concrete set of facts, which is realistic rather than being abstract which means something is think is going to happen. The doctrine allows flexibility in the sense; the judges may depart from a precedent if it is necessary.

A judge may over-rule if a precedent is bad in law provided they have the authority to do so, and they may distinguish the case, which he is deciding from a precedent, and therefore refuse to apply the precedent.

However, there are a large number of precedents to refer to and judges must be careful in selecting the correct one. There is an element of uncertainty because when a precedent is cited, a judge may over-rule or distinguish the precedent from the existing case and therefore there is no guarantee that the judge will apply the precedent. Moreover, development of the law can be irregular and slow.

It is unconstitutional for a judge to make law, as his function is to enforce and apply the law. Making law amounts to interfering with the functions of the parliament. It goes against the doctrine of separation of powers as expounded by French philosopher Montesquieu who stated that every organ in a legal system must exercise its power separately so that each organ can exercise checks and balances on each other.

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