The System of Judicial Precedent in Modern English Law - Essay Example

Outline and critically assess the system of judicial precedent in Modern English Law. A central characteristic of the English legal system is the doctrine of judicial precedent, which effectively requires courts to follow previous judicial determinations of a higher court in cases involving similar facts regardless of approval of the judicial rationale1. A judicial determination is effectively comprised of two parts, namely the ratio decidendi and the obiter dicta2. The ratio decidendi is the reason for the decision and Professor Cross highlights the ratio as “any rule of law treated by the judge as a necessary step in reaching his conclusion3”. To this end, Cross further refers to Professor Montrose’s arguments that the expression “ratio decidendi is used in two senses: i) “The rule of law for which a case is binding authority” and (ii) “The rule of law to be found in the actual opinion of the judge, forming the basis of the decision.4” It is submitted that a prime example of the operation of judicial precedent is the decision in Re Voller v Schweppes Limited Agreement5 where the Court of Appeal ordered discovery of documents in relation to a restrictive practices dispute. Interestingly in this case, Lord Justice Wilmer had dissented, however subsequently on the same day, in the decision of Re Automatic Telephone and Electric Co Limited’s Agreement6 Lord Justice Wilmer was also presiding and asserted that “if the matter was res integra, I should have been disposed to discuss the appeal in this case for the same reasons as those which I gave in my judgment in the previous case”7. As such, the decision in the Automatic Telephone case was unanimous. The doctrine of binding precedent is referred to as “stare decesis et non queita movere”8. Accordingly, all parts of the judgment which do not form part of the ratio decidendi of the case are referred to as “obiter dicta”, which are things “said by the way”9 and none of the obiter dicta forms really part of the case law in terms of precedential value. Nevertheless the obiter dicta can be persuasive in subsequent judicial decision making. As stated above, the doctrine of precedent is otherwise referred to as the doctrine of stare decisis10. On this basis, judicial decision making is influenced by the ratio in earlier decisions, which are binding. The central ground for departing from precedent of a superior court will be if the facts are materially different and thereby distinguishable11. Moreover, if we consider the court hierarchy, then the House of Lords binds all lower courts. To this end the doctrine of precedent is seen as fundamental to ensuring consistency and certainty and logical progression of the development of law12. In essence, the precedent doctrine requires lower courts to be bound by legal principles of superior courts13. In the case of London Street Tramways v London Council14 the House of Lords bound itself in the interests of legal certainty. The House of Lords argued that the public interest required certainty and that as such, it would only depart from the past decisions if the circumstances were right15. Nevertheless, the House of Lords acknowledged that “too rigid adherence to precedent may lead to an injustice in a particular case and also unduly restrict the proper development of law”16. Indeed, this statement arguably highlights the inherent conflict in the doctrine of judicial precedent. On the one hand compliance with judicial precedent preserves legal certainty and protects ad hoc decision making. Conversely, rigid adherence clearly prevents the law being able to accommodate necessary developments. The entrenchment of House of Lords’ binding itself was altered in the 1966 Practice Statement, where Lord Gardiner commented that whilst the House of Lords would use the power to depart from its verdicts sparingly, the decision in the Tramways decision was overturned. The Lord Chancellor further reiterated the following sentiment in relation to judicial precedent: “Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law…….. their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in the development of the law. They propose therefore to modify present practice and while, treating former decisions of this House of Lords as normally binding, to depart from a previous decision when it appears right to do so”. A prime example of this is the decision in R v R17where the House of Lords abolished the marital rape exemption, which had been existence for years. If we further consider the hierarchy of judicial precedent, the Court of Appeal is bound by decisions of House of Lords and often its own decisions18. The civil division can only depart in three instances as determined in the case of Young v Bristol, namely19: 1) Where the court has to determine which of two conflicting decisions to follow; 2) The court is bound to refuse to follow its own decision that conflicts with a House of Lords’ decision 3) The court is not bound to follow decision of own if taken per incuriam20. Decisions made by the Court of Appeal are binding on county courts, crown courts and magistrate’s courts21. However, decisions made in Crown courts by judges are not binding, however are considered to be persuasive precedent. Moreover, in terms of the hierarchy, it is important to consider the implementation of the European Communities Act 1972, which expressly gives legal effect to EC law has led to the creation of what has been described as “a new legal order22”, directly attacking traditional constitutional convention of national sovereignty23. Indeed, the implementation of the ECA renders decisions of the European Court of Justice binding in issues of Community law, which includes all courts up to and including the House of Lords24. As commented above, on the one hand the need for legal certainty inherently conflicts with the need to adapt the law in accordance with the needs of the society. Indeed it is arguable that an important aspect of the independence of the judiciary and unwritten constitution is the ability to adapt and provide flexibility. This in turn has fuelled judicial creativity to address situations where the doctrine of precedent creates an undesirable result. For example, in the case of Jones v Secretary of State for Social Services25, Lord Reid asserted that: “it is notorious that where an existing decision is disapproved but cannot be overruled the courts tend to distinguish it on inadequate grounds. I do not think they act wrongly in so doing, they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty26” Another mechanism utilised to avoid precedent is to overrule a decision made by a lower court such as the House of Lords27. However usually occurs when application of law was not correct or that the ratio decidendi in earlier cases is not appropriate such as the R v R case, which falls within the “right thing to do” rationale of the Practice Direction. For example, in the case of Miliangos v George Frank (Textiles) Limited where the House of Lords felt the climate was appropriate to change the rule in the Havana case that damages should be awarded in sterling only and not foreign currency. In the Miliangos case, the House of Lords undertook an historical review of the rule regarding judgments in foreign currency and after considering the decision in the case of Schorsch Meier GmbH v Henin28, in which the Court of Appeal departed from the House of Lords decision, Lord Wilberforce asserted that “to change the rule would…. Avoid injustice in the present case. To change it would enable the law to keep in step with commercial needs and with the majority of other countries facing similar problems”29. Alternatively, the decision can be overturned if reached in error and in the case of Morelle v Wakeling30. Evershed MR asserted that “the only case in which decisions should be held to be given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned”. Nevertheless, overall it has been commented that the House of Lords often remains entrenched in the stare decisis principle regardless of the morality of the decision31. Directly correlated to this is that whilst the House of Lords is not bound by its own decisions, the circumstances in which it can depart from the doctrine of precedent remain ambiguous, which fuels uncertainty in the use of judicial creativity to avoid undesirable decisions. However, such ad hoc judicial law making whilst sometimes necessary to address deficiencies in the law serves undermines the fundamental concept of independence of the judiciary and encroaches on the legislature. On this basis it is submitted that the exceptions to the doctrine of precedent need to be reviewed to address the balance of legal certainty whilst ensuring legal efficiency in accordance with contemporary legal issues. BIBLIOGRAPHY Rupert Cross & J.W. Harris (1991). Precedent in English Law. Oxford University Press. Penny Darbyshire, & K.J. Eddey (2002). Eddey and Darbyshire on the English Legal System. 7th Edition Sweet & Maxwell 2002 A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Franz C. Mayer (2006). Supremacy –Lost WHI Paper 2/06 German Law Journal Vol 6 No 11 pp1497-1507. G. Slapper & D. Kelly (2004). English Legal System. Routledge Cavendish Legislation European Communities Act 1972 Read More