The doctrine of precedent refers to previousdecisions made by judges that can be used to help them decide on cases that aresimilar. The English system of precedent is based on the principlestare decisis,which means to stand by what has been decided. It can be broken down into twoparts, ratio decidendi and obiter dicta. Ratio decidendi are the principles oflaw that a judge has used to come to the decision at the end of a case. Ratiodecidendi loosely means “Any rule expressed or implied by the judge as anecessary step in reaching his conclusion”. Obiter dicta refers to”the other things said” by the judges and does not necessarily haveto be followed by judges in future cases.
1 The most basic andimportant principle upon which the doctrine of judicial precedent lies is thata hierarchy of courts is needed if it is to function. The Court of Appeal isthe highest court within the Senior Courts of England and Wales, and deals onlywith appeals from other courts or tribunals. The decision of the Court ofAppeal is binding for High Court and other lower courts but not for the SupremeCourt.
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The Court of Appeal need not to follow the previous binding precedent onthree circumstances. Firstly, when the previous decision conflict, the Court ofAppeal must decide which has to follow and which has to reject (Law v Jones)2. Secondly, whereprevious decision conflict with Supreme Court (Street v Moundford)3. Thirdly, when theprevious decision was given carelessly or recklessly (Rickards v Rickards)4. There is nodifference on the application of stare decisis as between the civil andcriminal division of the Court of Appeal. The doctrine ofjudicial precedent primarily assists Courts when making decisions viapreviously decided case law. This gives the assurance of a quicker judicialprocess and the reliability and regularity within the judicial system. Insimilar cases there will be a more decisiveness and they will be treated withmore impartiality, which prevents any injustice from occurring.
This sets thestandard as legal rules and principles can be developed which in turn creates amore flexible judicial system. It also sets the precedence for lower courts. However,there are several disadvantages that exist under the doctrine, such as theunwarranted limitations that basically force judges to adhere to previousdecisions. This could hinder progression of the law as society evolves as manyof the principles may be somewhat outdated.
Furthermore, due to the number ofcases that exist, it may become exceedingly demanding and time consuming tofully understand the law. Since the Human Rights Act 1998 was enacted, thedoctrine of judicial precedent powers have dwindled, however with the increasein new case laws, the doctrine will in fact be reinstituted. This is of utmostimportance given the significance of judicial precedence and although there aremany disadvantages, these appear to be outweighed by the advantages. Thedoctrine of precedence is of utmost importance especially in the Court ofAppeal as it sets the tone for the judicial system and can only be overriddenby the Supreme Court. It is also the most respected frequented court and its decisionsstand in lower courts, as such it is bound by its decisions.
1S. Wilson, H. Rutherford, A. Storey, and N. Wortley. English Legal System 2nded.
(Oxford University Press, 2016.)2 1974 Ch 112 31985 2 WLR 877 House of Lords41989 3 WLR 748 Court of Appeal