Case Law & Precedent 2
Precedent history
- Most distinctive feature of common law system
- Stare rationibus decendi – to follow the reasoning of previous decisions
Vertical dimension of precedent- The extent to which a higher court binds a lower one
- Ecthr – persuasive only in matters relating to convention rights under s2 hra 1998
o Persuasive – authoritive but not binding
- Privy council – highly persuasive
- Court of justice of European union – binds uk courts on EU law matters under ss2 & 3
eca 1972
o Not after Brexit
- Supreme court – binds all courts below
- Court of appeal – binds all courts below
- High court – binds all courts below
- Crown, county & magistrates courts bind no one
Horizontal dimension – the extent to which a court binds itself
- Supreme court
o The self bindingness of the house of lords’ supreme court falls into 3 periods
Before the mid 19th century HL took view that it wasn’t bound by its
previous decisions
Bright v Hutton 1852
From mid 19th century to 1966
London street tramways v London County council 1898
From 1966 onwards
Practice statement
o Practice statement – justifies the conclusion that the HL/ supreme court
should have power to depart from its own previous decisions
Makes no mention of overruling; simply of departing from
Miliangos v George frank ltd 1975 – civil case
R v g 2003 – criminal case
Court of appeal – civil cases
- Young v Bristol aeroplane co ltd 1944
o Where there are 2 conflicting decisions of CA, it may choose which to follow
o Where the previous CA decision has been implicitly overruled by the HL
o Where the decision was made per incuriam
Lack of due regard to the law or the facts
Court of appeal – criminal cases
- All exceptions which apply to the civil division, apply to the criminal division
- Has a wider discretion where the liberty of the subject is at stake
- R v Simpson 2004
Attempts at challenge
- There have been attempts in the CA, notably by lord denning to depart from
decisions of the HL
o ‘It’s not open to the CA to give gratuitous advice to judges of first instance to
ignore decisions of the HL in this way… the fact is, & I hope it will never be
necessary to say so again, that in the hierarchical system of courts which
Precedent history
- Most distinctive feature of common law system
- Stare rationibus decendi – to follow the reasoning of previous decisions
Vertical dimension of precedent- The extent to which a higher court binds a lower one
- Ecthr – persuasive only in matters relating to convention rights under s2 hra 1998
o Persuasive – authoritive but not binding
- Privy council – highly persuasive
- Court of justice of European union – binds uk courts on EU law matters under ss2 & 3
eca 1972
o Not after Brexit
- Supreme court – binds all courts below
- Court of appeal – binds all courts below
- High court – binds all courts below
- Crown, county & magistrates courts bind no one
Horizontal dimension – the extent to which a court binds itself
- Supreme court
o The self bindingness of the house of lords’ supreme court falls into 3 periods
Before the mid 19th century HL took view that it wasn’t bound by its
previous decisions
Bright v Hutton 1852
From mid 19th century to 1966
London street tramways v London County council 1898
From 1966 onwards
Practice statement
o Practice statement – justifies the conclusion that the HL/ supreme court
should have power to depart from its own previous decisions
Makes no mention of overruling; simply of departing from
Miliangos v George frank ltd 1975 – civil case
R v g 2003 – criminal case
Court of appeal – civil cases
- Young v Bristol aeroplane co ltd 1944
o Where there are 2 conflicting decisions of CA, it may choose which to follow
o Where the previous CA decision has been implicitly overruled by the HL
o Where the decision was made per incuriam
Lack of due regard to the law or the facts
Court of appeal – criminal cases
- All exceptions which apply to the civil division, apply to the criminal division
- Has a wider discretion where the liberty of the subject is at stake
- R v Simpson 2004
Attempts at challenge
- There have been attempts in the CA, notably by lord denning to depart from
decisions of the HL
o ‘It’s not open to the CA to give gratuitous advice to judges of first instance to
ignore decisions of the HL in this way… the fact is, & I hope it will never be
necessary to say so again, that in the hierarchical system of courts which
