chapter  2
32 Pages

The Doctrine of Judicial Precedent

J Define the doctrine of stare decisis J Identify and distinguish ratio decidendi and obiter dicta J Explain the difference between binding and persuasive precedents, and provide

examples of each

J Apply the doctrine of precedent to each court in the hierarchy, appreciating the self-binding nature of most previous decisions and the exception(s) to the selfbinding rules

J Illustrate the operation of the doctrine within each court by case example(s) J Explain the impact of the Human Rights Act 1998 within this topic J Identify how to avoid a precedent

Imagine that you have developed a mysterious illness and that you visit your doctor. He has never encountered this illness before, but remembers that a partner in the practice described something similar a while ago. Your doctor consults the other partner to find out what was prescribed. Next, imagine that you are a solicitor in private practice. A wealthy client has asked you to draw up his will which is to contain an extremely complex trust. You have not drafted such a clause before, but you know that one of your partners has previously prepared this sort of will. You go in search of the file containing the clauses you need. What is happening in both of the above cases is that the professional who is faced with an unfamiliar problem seeks a precedent to help him in arriving at the best solution to that problem. Using previous decisions to help resolve a current problem is a technique employed in all walks of life, but particularly in the courts of most legal systems. In the English legal system this is referred to as the principle of stare decisis (which means ‘stand by cases already decided’) or the doctrine of precedent, and these two terms are interchangeable. It is a concept which has a vital part to play in the day-to-day

TH E

D O

C TR

IN E

O F

JU D

IC IA

L PR

EC ED

EN T

decision-making which takes place in our courts. Note at the outset that there is a difference between stare decisis, which describes the doctrine of precedent, and res judicata. This latter term means that a court’s decision binds the parties to the case. The term is Latin for ‘the matter has been settled’ and is a principle that when a court has decided a case between the parties, after all the appeals if any are brought, the case is not to be reopened by those parties or their successors. Stare decisis, which is the focus of this chapter, is the doctrine of following the legal reasoning from one case in a later case when the same points of law arise again. In this chapter, the operation of the doctrine of precedent (stare decisis) in the courts of the English legal system will be examined. This chapter will develop your understanding of the way in which the courts and the judges work, and enable you to make some evaluation of the importance of decisions made in different courts.