Applying the
existing principles
to current problems
Based on 'stare
decides': to treat
like cases alike
Dependent on
court status
Decisions of higher
courts are binding
on lower courts
Courts may be
bound to their
previous decisions,
but there are
exceptions
Rationale of
JP
1. Serves as
guidance
2. Encourage certainty in
law
3. Maintain traditional respect to
judges
4. Practicality
purposes
2. Binding
Precedent
Decided case which a court
must follow if material
facts and issue in question
are similar, and the court is
a higher court
Binding part of
judgement is
ratio decidendi
Defined by Prof.
Goodhart: facts
deemed material by
judge, and his
decision based on
them
Donoghue v Stevenson 1932
Ratio = Duty of
Care
Obiter = Neighbour
Principle
Dynamic nature
between ratio and
obiter: obiter
changes into ratio
over time
Facts of the
case
3. Persuasive
Precedent
Persuasive in
nature
Comes from obiter dicta,
and decisions by Privy
Council and foreign courts
Weight to be
attached depends on
court status and
prestige of the judge
4. Tools of Departure
(a)
Reversing
R v Kingston
1994
It is possible to reverse
and overrule in the same
case.
(b)
Overruling
(c)
Distinguishing
Hillyer v St.
Bartholomews
Hospital
(1909)
The doctor was a
consultant surgeon,
and hospital could
not be sued
vicariously since he
is not an employee
Cassidy v
Minister of
Health (1951)
The doctor was a
resident surgeon, who
is an employee of the
hospital and therefore
the hospital can be
liable vicariously.
Depends on
amount of control
the hospital holds
over their
employees
5. Supreme Court
Before PS
1966
London Tramways
v London County
Council (1898)
The House considers itself
bound by its own previous
decisions, as the highest
court of the land
To promote certainty, gain
public confidence and put
an end to litigation
Practice Statement
1966 by Lord Gardiner
JP is an indispensable
foundation to determine law
and its application in cases
Rigid adherence to it can
cause personal hardships
Judges in the House can
depart when it appears 'right
to do so'.
Judges should refrain from
making reforms in criminal
law, as certainty is crucial in
this aspect of law
After PS
1966
Guidelines were set in
what type of cases to
overrule
Jones v Sec State
for Social Services
1972
Use PS 1966
sparingly in the
construction of
statutes and
documents
Food Corp of India v
Antclizo Shipping
1987
Decision shall not be
overruled merely because
it causes gave concern,
but in an attempt to
resolve the dispute
Conway v
Rimmer 1968
Duncan v
Cammel Laird
1942
Affidavit is binding since it
was a time of war, and if
document is disclosed, it
could harm British civilians
Courts will decide whether a
minister's affidavit shall be
disclosed
Herrington v British
Railways Board
1972
Addie v Dumbreck
1929
Occupier shall be liable
to trespassers if they
know there is a
potential danger and
have not done all a
humane person could
have
There are more and more people
living in cities with railway tracks, and
thus the law shall be developed.
R v R
1991
Overruled Hale's
theory and made
marital rape an
offence
Retrospective
offence
R v Clegg
1995
House was averse to
reduce murder to
manslaughter, and that
this change should
come from Pt.
C v DPP
1995
(a) Cautious imposing a remedy
when solution seems doubtful
(b) If Pt. has rejected or legislated,
but left the problem untouched,
they should be cautious
(c) Judges are better dealing with
legal problems, than social policy
(d) Precedent should not be lightly set aside
(e) Judges should not change the
law unless they can achieve
finality and certainty
6. Court of Appeal
Exceptions From Young v Bristol Aeroplane 1944
1. Two conflicting COA decisions
National Westminster
Bank v Powney 1990
Tiverton
Estates v
Wearwell 1975
Law v
Jones 1974
Can choose which to
depart and which to follow
2. Later HoL decision conflicting
with CoA previous decision
Westminster City
Council v Clarke 1992
Family Housing
Association v
Jones 1990
CoA does not follow its
previous decision where its
previous decision is
inconsistent with HoL decision.
3. Per Incuriam
(a) Reached by overlooking
statutes or case law
(b) Produce serious inconvenience
in the administration of justice
(c) Ignoring previous HoL decision
Duke v Reliance System 1982
1. Uncited statute
or case law
2. Defence is wide and
therefore care must be
taken in relying upon it
3. Recent developments
show it produces
inconvenience to justice
7. High Court
7. + / - of Precedent
1. Reasonable flexibility
given to Supreme Court
3. Promotes certainty to
a certain degree to
provide predictability in
court decisions
4. Overrules decisions to
ensure proper
development in law to suit
changing needs of society
5. Exceptions given to CoA
and High Court allow
greater flexibility
2. Only Supreme Court shall
overrule decisions using PS
1966 because judges are
experienced enough to
consider the long-lasting effect
of judicial law reform
a. Retrospective overruling
b. May take longer for
decisions to be overruled,
CoA is often the last
resort due to finance and
limited grounds of appeal.