Summary Notes: Judicial Precedence
The Doctrine of Precedent
Judicial Precedent refers to the source of law where past decisions of the judges create law
for future judges to follow. It is also known as case/common law and is a major source of law
in the UK.
Judicial Precedent is very important in common law legal systems, and the doctrine of
precedent means that courts must follow decisions of the courts above. Also, appeal courts
will usually follow their own previous decisions.
Doctrine of precedent – when judges follow the decisions of previous cases
Stare Decisis
The English system of precedent is based on the Latin maxim stare decisis et non quieta
movere which means stand by what has been decided, and do not unsettle the established.
Therefore, judges follow the decisions of previous cases (doctrine of precedent) in order to
not unsettle the established (stare decisis).
In the English legal system, one there has been a decision on a point of law, that decision
immediately becomes a precedent for later cases.
So, where the point of law in the previous and present case are the same, the court hearing
the present case must follow the decision in the decision of the previous case, therefore
treating the cases alike. This ensures that the law is certain and supports the idea of fairness.
Judgements and Ratio Decidendi
Ratio decidendi – the reason for deciding
For the system of precedent to operate, the legal reasons for past decisions must be known,
so at the end of a case, there will be a judgement.
The judgement is a speech made by the judge (or judges) hearing the case giving the decision
and explaining the reasons for the decision. In a judgement, the judge usually gives a
summary of the facts of the case, reviews the arguments put to them by the advocates in the
case, and then explains the principles of law he or she is using to come to the decision. There
can be numerous judgements – up to 11 in the Supreme Court.
,The Ratio Decidendi is the only part of the judgement that forms the precedent. The ratio
decidendi forms the binding precedent, meaning that the ratio decidendi is what creates a
precedent for the judges in later cases, to follow.
There can be more than one speech at the end of a case depending on the number of judges
hearing the case. In courts of first instance, there will only be one judge, and therefore one
judgement.
However, in Divisional Courts and the Court of Appeal, the cases are heard by at least two
judges but usually three. In the Supreme Court (formerly House of Lords), the panel of judges
must consist of an uneven number, so there could be three, five, seven, nine or even eleven
judges, and therefore eleven judgements.
The fact that there are two or more judges does not mean that there will always be several
judgements, as it is quite common for one judge to give the judgement, and the other
judge/judges simply to say, “I agree”. However, in cases where there is a particularly
important or complicated point of law, more than one judge may want to explain his or her
legal reasoning on the point. This can cause problems in later cases as each judge may have
had a different reason for their decision, so there will be more than one ratio decidendi.
As the judgements are usually in a continuous form (with no headings) it can be difficult to
distinguish the ratio decidendi from the obiter dicta.
Sir Rupert Cross defined the ratio decidendi as “any rule expressly or impliedly treated by the
judge as a necessary step in reaching his conclusion.”
Michael Zander says that it is “a proposition of law which decides the case, in the light or in
the context of the material facts.”
Obiter Dicta
Obiter dicta – other things said, the remainder of the judgement.
The obiter dicta do not have to be followed by judges in future cases, therefore it is not
binding, unlike the ratio decidendi.
Sometimes in the obiter dicta, the judge will speculate on what the decision would have been
had the facts of the case been different – this legal reasoning may be considered in future
cases, but it is not binding precedent.
,Hierarchy of the Courts
In England and Wales, the courts operate a rigid doctrine of judicial precedent which has the
effect that:-
• Every court is bound to follow the decisions made by a court above it in the
hierarchy
• In general, appellate courts (courts which hear appeals) are bound by their
own past decisions.
There are 2 exceptions where lower courts do not have to follow decisions in the appellate
courts – they are:
• If it conflicts with a judgement in the ECJ
• If the decision violates human rights.
The Appellate Courts
Appellate courts are those which hear appeals, and in the English legal system, the appellate
courts are:
• The Court of Justice of the EU
• Supreme Court
• Court of Appeal
• Divisional Courts
Therefore, they do not hear the first trial of a case.
, The Court of Justice of the EU
From 1973, and until the UK leaves the EU, the
highest court affecting the English legal system is the
Court of Justice of the European Union.
Points of EU law can be referred to it by courts in
England and Wales. The Courts of Justice of the EU
only decides the point of law; the case then comes to
court in this country to apply the law to that case.
For points of EU law, decisions made by the Courts of
Justice of the EU are binding on all courts in England
and Wales. It does not affect other areas of law.
An important feature of the Courts of Justice of the
EU is that it is prepared to overrule its own past
decisions if it feels it necessary. This flexible approach
to past precedents is seen in other legal systems in
Europe, and it is a contrast to the more rigid approach of our national courts.
The Supreme Court
This is the most senior court in England and Wales and its decisions bind all other courts in
the English legal system. It replaced the House of Lords (2009). Decisions by the Supreme
Court also bind all lower courts in the English legal system. It is not bound by its own past
decisions, nor by decisions of the House of Lords, although it will generally follow them.
Court of Appeal (CA)
This is the next level down in the hierarchy. The CA has two divisions: civil and criminal. Both
divisions are bound to follow the decisions of the Supreme Court. In addition, they must
usually follow past decisions of their own, although there are limited exceptions to this rule.
The Court of Appeal (Criminal Division) is more flexible where the point involves the liberty of
the subject.
Divisional Courts
The three divisional courts (Queens Bench Division, Chancery and Family) are bound by the
decisions of the Supreme Court and the Court of Appeal. In addition, the divisional courts are
bound by their own past decisions. However, they operate similar exceptions to those
operated by the Court of Appeal.
The Doctrine of Precedent
Judicial Precedent refers to the source of law where past decisions of the judges create law
for future judges to follow. It is also known as case/common law and is a major source of law
in the UK.
Judicial Precedent is very important in common law legal systems, and the doctrine of
precedent means that courts must follow decisions of the courts above. Also, appeal courts
will usually follow their own previous decisions.
Doctrine of precedent – when judges follow the decisions of previous cases
Stare Decisis
The English system of precedent is based on the Latin maxim stare decisis et non quieta
movere which means stand by what has been decided, and do not unsettle the established.
Therefore, judges follow the decisions of previous cases (doctrine of precedent) in order to
not unsettle the established (stare decisis).
In the English legal system, one there has been a decision on a point of law, that decision
immediately becomes a precedent for later cases.
So, where the point of law in the previous and present case are the same, the court hearing
the present case must follow the decision in the decision of the previous case, therefore
treating the cases alike. This ensures that the law is certain and supports the idea of fairness.
Judgements and Ratio Decidendi
Ratio decidendi – the reason for deciding
For the system of precedent to operate, the legal reasons for past decisions must be known,
so at the end of a case, there will be a judgement.
The judgement is a speech made by the judge (or judges) hearing the case giving the decision
and explaining the reasons for the decision. In a judgement, the judge usually gives a
summary of the facts of the case, reviews the arguments put to them by the advocates in the
case, and then explains the principles of law he or she is using to come to the decision. There
can be numerous judgements – up to 11 in the Supreme Court.
,The Ratio Decidendi is the only part of the judgement that forms the precedent. The ratio
decidendi forms the binding precedent, meaning that the ratio decidendi is what creates a
precedent for the judges in later cases, to follow.
There can be more than one speech at the end of a case depending on the number of judges
hearing the case. In courts of first instance, there will only be one judge, and therefore one
judgement.
However, in Divisional Courts and the Court of Appeal, the cases are heard by at least two
judges but usually three. In the Supreme Court (formerly House of Lords), the panel of judges
must consist of an uneven number, so there could be three, five, seven, nine or even eleven
judges, and therefore eleven judgements.
The fact that there are two or more judges does not mean that there will always be several
judgements, as it is quite common for one judge to give the judgement, and the other
judge/judges simply to say, “I agree”. However, in cases where there is a particularly
important or complicated point of law, more than one judge may want to explain his or her
legal reasoning on the point. This can cause problems in later cases as each judge may have
had a different reason for their decision, so there will be more than one ratio decidendi.
As the judgements are usually in a continuous form (with no headings) it can be difficult to
distinguish the ratio decidendi from the obiter dicta.
Sir Rupert Cross defined the ratio decidendi as “any rule expressly or impliedly treated by the
judge as a necessary step in reaching his conclusion.”
Michael Zander says that it is “a proposition of law which decides the case, in the light or in
the context of the material facts.”
Obiter Dicta
Obiter dicta – other things said, the remainder of the judgement.
The obiter dicta do not have to be followed by judges in future cases, therefore it is not
binding, unlike the ratio decidendi.
Sometimes in the obiter dicta, the judge will speculate on what the decision would have been
had the facts of the case been different – this legal reasoning may be considered in future
cases, but it is not binding precedent.
,Hierarchy of the Courts
In England and Wales, the courts operate a rigid doctrine of judicial precedent which has the
effect that:-
• Every court is bound to follow the decisions made by a court above it in the
hierarchy
• In general, appellate courts (courts which hear appeals) are bound by their
own past decisions.
There are 2 exceptions where lower courts do not have to follow decisions in the appellate
courts – they are:
• If it conflicts with a judgement in the ECJ
• If the decision violates human rights.
The Appellate Courts
Appellate courts are those which hear appeals, and in the English legal system, the appellate
courts are:
• The Court of Justice of the EU
• Supreme Court
• Court of Appeal
• Divisional Courts
Therefore, they do not hear the first trial of a case.
, The Court of Justice of the EU
From 1973, and until the UK leaves the EU, the
highest court affecting the English legal system is the
Court of Justice of the European Union.
Points of EU law can be referred to it by courts in
England and Wales. The Courts of Justice of the EU
only decides the point of law; the case then comes to
court in this country to apply the law to that case.
For points of EU law, decisions made by the Courts of
Justice of the EU are binding on all courts in England
and Wales. It does not affect other areas of law.
An important feature of the Courts of Justice of the
EU is that it is prepared to overrule its own past
decisions if it feels it necessary. This flexible approach
to past precedents is seen in other legal systems in
Europe, and it is a contrast to the more rigid approach of our national courts.
The Supreme Court
This is the most senior court in England and Wales and its decisions bind all other courts in
the English legal system. It replaced the House of Lords (2009). Decisions by the Supreme
Court also bind all lower courts in the English legal system. It is not bound by its own past
decisions, nor by decisions of the House of Lords, although it will generally follow them.
Court of Appeal (CA)
This is the next level down in the hierarchy. The CA has two divisions: civil and criminal. Both
divisions are bound to follow the decisions of the Supreme Court. In addition, they must
usually follow past decisions of their own, although there are limited exceptions to this rule.
The Court of Appeal (Criminal Division) is more flexible where the point involves the liberty of
the subject.
Divisional Courts
The three divisional courts (Queens Bench Division, Chancery and Family) are bound by the
decisions of the Supreme Court and the Court of Appeal. In addition, the divisional courts are
bound by their own past decisions. However, they operate similar exceptions to those
operated by the Court of Appeal.
