Judicial Precedents: When Departure is Necessary - Assignment Example

Judicial Precedents: When Departure is Necessary. The term Stare Decisis is Latin for ‘the decision stays,’ and is used to describe the doctrine of judicial precedent. The doctrine of Stare Decisis by definition dictates that judicial precedents remain static and unchanging. Orlan Lee observes that ‘the law we follow, …is presumed to come down to us from time immemorial in the case precedents. Departure from precedent, therefore, appears to be almost like departure from those principles themselves.’1 The court must have sufficient superiority to bind itself on lower courts and the ruling must contain a ratio decidendi or decided on law not fact.2 Although the ratio decidendi may be the same in two cases, the facts may differ causing different rulings.3 Although the judiciary has departed from this tendency, departures are rare. The reason for departure from judicial precedent was explained by Lord Gardiner in Practice Statement (Judicial Precedent). He said that, ‘their Lordships…recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it seems right to do so.’4 Lord Denning said that ‘all that I am against is too rigid applications - a rigidity which insists that a bad precedent must be followed.’5 He compared judicial precedent to ‘a path through a wood.’6 While noting that it is imperative that the path is followed, Denning warned that it is unwise to permit that path to ‘become too overgrown.’7 Orlan Lee notes that ‘many of the rigid notions of a hundred years ago are now history’.8 There have been a significant number of changes over the years, most notably is the UK joining the European Union, that have contributed to a need for law to evolve so that it is consistent with these changes. Lord Devlin rationalized the Practice Statement of 1966 when he said that ‘no statement of the law, be it a precedent or a statute, is ever final: it is to be read in its context and its context can change. A judge must never assume that the law always and in all circumstances does complete justice. That would be an impossible task to put upon any lawmaker. To do justice according to law the judge must keep his eye on the justice of the case as well as on the text of the law.’9 The significance of Practice Statement (Judicial Precedents) [1966] has been applied in some important cases. In British Railways Board v Herrington the House of Lords examined a number of earlier decisions that held that the duty of care in respect of trespassing children was limited. The duty owed by the occupier was only to avoid reckless regard for children whom he knew would trespass on his property. Public policy toward trespassing children at the time was that no duty of care ought to exist in this regard. However, in the British Railway Case public policy had shifted so that the House of Lords departed from the limited duty of care to impose a special duty of care.10 In Miliangos v George Frank (Textiles) Ltd. the House of Lords had decided earlier on that all damages in English courts had to be expressed in sterling. As a result of the sterling’s place on the world market, the House of Lords felt that the times had changed and relaxed the rule.11 In one case the House of Lords reversed an earlier decision because it felt that the earlier decision was wrong. A year earlier the House of Lords had made one decision in a similar case and the Law Lords criticized the decision.12 In this case, Lord Hailsham said, ‘…there is obviously much to be said for the view…that "if a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better."’13 In light of the previous attitude toward judicial precedent, the significance of Practice Statement is all the more obvious. 19th Century judiciary made decisions based on a perception that they did not make the law, they simply applied and interpreted it. Parke J said in Egerton v Brownlow ‘It is the province of the statesman, and not the lawyer, to discuss, and of the legislature to determine, what is the best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors ..., from text-writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is best, in his opinion for the advantage of the community.’ 14 There was a danger of placing reliance upon some essentially bad precedents. Since the passage of Practice Statement the judicial climate recognizes a desire and necessity on the judiciary’s part to make law as well as apply and interpret it. Prior to the Practice Statement Judges did in fact begin to show some frustration with the rigidity of the doctrine of Stare Decisis. Lord Denning for instance tested the water frequently by dissenting.15 He explained his position in his book The Discipline of Law when he said that ‘just as the propositions of the scientist fall when shown to be in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.’16 Lord Wilberforce in Fitzsleet Estates Ltd. v Cherry cautioned that departure from judicial precedent would only be warranted in cases where there was evidence of a change in circumstances.17 While this decision might be regarded as excessively constraining, it together with other post 1966 decisions did lay down some useful guidelines for appropriate circumstances for the overruling of previous decisions by the House of Lords as provided for in the 1966 Practice Statement. These circumstances can be summarized as follows:- 1. If the reason for rendering the decision no longer exists, then the continued existence of the decision should likewise cease to exist.18 2. Judges are entitled to accept new submissions put forth by attorneys. 3. If a decision was made in error or Per incuriam and would ‘produce serious inconvenience in the administration of justice or significant injustice to citizens.’19 4. The introduction of new statutory provisions can change a previous decision making it necessary to reconsider the previous decision. Lord Wilberforce also added that ‘I cannot accept the suggestion that because a rule is long established only legislation can change it - that may be so when the rule has infected the whole legal system, or the choice of a new rule involves more far-reaching research than courts can carry out.’20 In general, the Practice Statement gave the House of Lords the authority and confidence to recognize the absurdity of strictly adhering to decisions that have become obsolete in the changing times. An unwavering loyalty to the doctrine of Stare Decisis generated a number of decisions that were not founded on legal and logical reasoning but simply on the grounds that the court was bound by its previous decision. As a result of the Practice Statement [1966] judges look to logic and fairness as a basis for the application of Stare Decisis, which demands departure from previous decisions in appropriate circumstances Bibliography British Railways Board v Herrington [1972] AC 877 Cross, R. Precedent in English Law. (2004) Oxford University Press Denning, Alfred. LJ. The Discipline of Law. (2005) Oxford University Press Egerton v Brownlow [1853] 4 HL Cas 1 Fitzsleet Estates Ltd. v Cherry [1977] 1 WLR 1345 Lord Devlin of West Wick. Lord Denning: the Judge and the Law. (1984) Sweet and Maxwell. Foreword. Miliangos v George Frank (Textiles) Ltd. [1976] 3 ALL ER 801 Orlan Lee. Systems Dynamics in the Law: A Comparative Approach to Certainty in the Common Law and Reviewability of Past Decisions. Oxford U Comparative L Forum 1 at ouclf.iuscomp.org, text after note 13. Viewed January 1, 2007 Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 R v Shivpuri [1987] AC 1 Secretary of State for Trade and Industry v Desai (1991) The Times 5 December Scruttons Ltd.v.Midland Silicones Ltd [1962] AC 446 Zander, Michael. The Law Making Process (Law in context) (2004) Cambridge University Press Please write here the TITLE of the essay you plan to write: Judicial Precedents: When Departure is Warranted. State three primary sources of law you plan to consult in the course of your research. 1. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 2. Zander, Michael. The Law Making Process (Law in context) (2004) Cambridge University Press 3. Denning, Alfred. LJ. The Discipline of Law. (2005) Oxford University Press Now choose ONE of those sources. Explain how you went/will go about finding it. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. This case was found by selecting volume 1 of the Weekly Law Reports at page 1234 in the law library. State three secondary sources of law you plan to consult in the course of your research. 1. Orlan Lee. Systems Dynamics in the Law: A Comparative Approach to Certainty in the Common Law and Reviewability of Past Decisions. Oxford U Comparative L Forum 1 at ouclf.iuscomp.org, text after note 13. Viewed January 1, 2007 2. Lord Devlin of West Wick. Lord Denning: the Judge and the Law. (1984) Sweet and Maxwell. Foreword. 3. Denning, Alfred. LJ. The Discipline of Law. (2005) Oxford University Press Now choose one of those sources. Explain how you went/will go about finding it. Orlan Lee. Systems Dynamics in the Law: A Comparative Approach to Certainty in the Common Law and Reviewability of Past Decisions. Oxford U Comparative L Forum 1 at ouclf.iuscomp.org, text after note 13. Viewed January 1, 2007 This source was discovered by conducting a search via the internet search engine google by running a search on scholarly articles on the doctrine of judicial precedents. State two electronic sources of law you plan to consult in the course of your research. WebCT is NOT an electronic source of law. 1. ouclf.iuscomp.org Oxford University Law Forum 2. http://webjcli.ncl.ac.uk/2006/issue4/davis4.html Web JCLI From the information above, and/or from other sources, compile a preliminary bibliography for your essay. (You can add to this later, but for now your list should be in alphabetical order, and contain at least four items). British Railways Board v Herrington [1972] AC 877 Cross, R. Precedent in English Law. (2004) Oxford University Press Denning, Alfred. LJ. The Discipline of Law. (2005) Oxford University Press Egerton v Brownlow [1853] 4 HL Cas 1 Fitzsleet Estates Ltd. v Cherry [1977] 1 WLR 1345 Jones v. Secretary of State for Social Services [1972] 1 AC 944 Lord Devlin of West Wick. Lord Denning: the Judge and the Law. (1984) Sweet and Maxwell. Foreword. Miliangos v George Frank (Textiles) Ltd. [1976] 3 ALL ER 801 Orlan Lee. Systems Dynamics in the Law: A Comparative Approach to Certainty in the Common Law and Reviewability of Past Decisions. Oxford U Comparative L Forum 1 at ouclf.iuscomp.org, text after note 13. Viewed January 1, 2007 Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 R v Shivpuri [1987] AC 1 Secretary of State for Trade and Industry v Desai (1991) The Times 5 December Scruttons Ltd.v.Midland Silicones Ltd [1962] AC 446 Zander, Michael. The Law Making Process (Law in context) (2004) Cambridge University Press Give two examples of how you cited/will cite one of the sources you have referred to above (either as a footnote or an endnote). 1. Denning, Alfred. LJ. The Discipline of Law. (2005) Oxford University Press. p292 (footnoted) 2. Secretary of State for Trade and Industry v Desai (1991) The Times 5 December (footnoted) In the space below, produce a preliminary plan for your essay. (You might consider using some or all of the following headings. The headings should not be used in your final essay – they are to help you plan only). You could also use a mind map. Introduction: Definition and application of the doctrine of Judicial Precedent. 1. Discussion focusing on the introduction of Practice Statement (Judicial Precedents) [1966] 2. History of the doctrine of Stare Decisis and judicial attitude toward rigid adherence to it. 3. The changes incurred in the doctrine of Stare Desisis following the implementation of Practice Statement (Judicial Precedents) [1966] 4. The current judicial climate Conclusion: The consequences of rigid adherence to the doctrine of Stare Decisis and the ongoing trend toward change within the judiciary. Read More