Learning Outcomes
By the end of this article, you will be able to explain the doctrine of precedent and its operation in the English legal system. You will understand the principles of stare decisis, the distinction between binding and persuasive precedent, and the roles of ratio decidendi and obiter dicta. You will also be able to identify how precedent applies within the court hierarchy, and how courts may distinguish or overrule previous decisions.
SQE1 Syllabus
For SQE1, you are required to understand the development and operation of case law through the doctrine of precedent. You must be able to apply these principles to realistic legal scenarios and identify the correct approach to precedent in different courts.
As you revise this article, focus on:
- the doctrine of precedent and the principle of stare decisis
- the difference between binding and persuasive precedent
- the roles of ratio decidendi and obiter dicta in judgments
- how precedent operates within the court hierarchy
- the circumstances in which courts may distinguish or overrule previous decisions
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the principle of stare decisis and why is it important in English law?
- Which part of a judgment is binding on future cases: ratio decidendi or obiter dicta?
- Can the Court of Appeal depart from its own previous decisions? If so, in what circumstances?
- What is the difference between binding and persuasive precedent?
Introduction
The doctrine of precedent is a core feature of the English common law system. It ensures consistency and predictability by requiring courts to follow previous decisions when the same legal issues arise. This article explains how precedent operates, the key concepts involved, and how courts apply or depart from earlier judgments.
The Principle of Stare Decisis
The doctrine of precedent is based on the principle of stare decisis—that is, "to stand by what has been decided." This principle requires courts to follow legal rules established in earlier cases when deciding later cases with similar facts and legal issues.
Key Term: stare decisis
Stare decisis is the principle that courts must follow previous decisions when the same legal point arises, ensuring consistency in the law.
Binding and Persuasive Precedent
Not all precedents are equal. Some must be followed, while others may simply be considered.
Key Term: binding precedent
A binding precedent is a previous decision that a court must follow because it was set by a higher court or, in some cases, by the same court.Key Term: persuasive precedent
A persuasive precedent is a previous decision that a court may consider but is not obliged to follow, such as decisions from lower courts or courts in other jurisdictions.
Ratio Decidendi and Obiter Dicta
When a court gives judgment, only part of the decision is binding on future cases.
Key Term: ratio decidendi
The ratio decidendi is the legal reasoning or principle that forms the basis of a court's decision and is binding in future similar cases.Key Term: obiter dicta
Obiter dicta are comments or observations made by a judge that are not essential to the decision. They are not binding but may be persuasive.
The Court Hierarchy and Precedent
The operation of precedent depends on the structure of the court system. Higher courts set precedents that lower courts must follow. The main courts in England and Wales, from highest to lowest, are:
- Supreme Court
- Court of Appeal (Civil and Criminal Divisions)
- High Court
- Crown Court, County Court, Magistrates' Court
Supreme Court
The Supreme Court is the highest court. Its decisions are binding on all lower courts. It is generally bound by its own previous decisions but may depart from them when it considers it right to do so.
Court of Appeal
The Court of Appeal is bound by decisions of the Supreme Court. It is usually bound by its own previous decisions but may depart in limited circumstances, such as when there are conflicting past decisions or a decision was made per incuriam (through lack of care).
High Court
The High Court is bound by decisions of the Supreme Court and Court of Appeal. High Court decisions are binding on lower courts but not on other High Court judges.
Lower Courts
The Crown Court, County Court, and Magistrates' Court are bound by decisions of higher courts but do not create binding precedents themselves.
Worked Example 1.1
A High Court judge is deciding a contract law case. There is a previous Court of Appeal decision on the same legal point. Must the High Court judge follow it?
Answer:
Yes. The High Court is bound by decisions of the Court of Appeal on the same legal issue.
Distinguishing and Overruling Precedent
Courts have mechanisms to ensure the law remains fair and up to date.
Distinguishing
A court may avoid following a precedent if it can show that the facts of the current case are materially different from those of the earlier case.
Key Term: distinguishing
Distinguishing is when a court decides not to follow a precedent because the facts of the current case are sufficiently different from the earlier case.
Overruling
A higher court may overrule a previous decision if it considers the earlier legal principle to be wrong or outdated.
Key Term: overruling
Overruling is when a higher court decides that a previous legal principle established in an earlier case is incorrect and replaces it with a new principle.
Worked Example 1.2
The Supreme Court decides that a previous House of Lords decision on criminal liability was wrong. What is the effect?
Answer:
The Supreme Court overrules the earlier decision. The new legal principle is now binding on all lower courts.
Applying Precedent in Practice
When faced with a legal issue, a court must:
- Identify relevant previous decisions (precedents).
- Determine whether those precedents are binding or persuasive.
- Apply the binding precedent unless it can be distinguished.
- If necessary, follow the process for overruling or departing from precedent.
Worked Example 1.3
A County Court judge is deciding a negligence case. There is a previous High Court decision on a similar issue, but the facts are not identical. What should the judge do?
Answer:
The County Court judge must follow the High Court decision unless the case can be distinguished on its facts.
Precedent and Legal Change
While precedent ensures stability, it also allows for legal development. Higher courts can overrule outdated principles, and courts can distinguish cases to address new situations. This balance maintains both certainty and flexibility in the law.
Precedent after Brexit
Following Brexit, UK courts are no longer bound by new decisions of the Court of Justice of the European Union (CJEU). However, pre-Brexit CJEU decisions may remain binding as "retained EU case law" unless and until overruled by the Supreme Court or Court of Appeal.
Exam Warning
The rules on when UK courts may depart from retained EU case law are complex and may change. For SQE1, focus on the principle that only the Supreme Court and, in some cases, the Court of Appeal can depart from retained EU case law, and only when it is right to do so.
Key Point Checklist
This article has covered the following key knowledge points:
- The doctrine of precedent requires courts to follow previous decisions on the same legal issue.
- Stare decisis is the principle fundamental to the doctrine of precedent.
- Binding precedent must be followed; persuasive precedent may be considered but is not obligatory.
- Ratio decidendi is the binding legal reasoning in a judgment; obiter dicta are non-binding comments.
- The court hierarchy determines which precedents are binding on which courts.
- Courts may distinguish cases on their facts or, in higher courts, overrule previous decisions.
- Precedent allows for both consistency and legal development.
- Following Brexit, only higher UK courts may depart from retained EU case law in limited circumstances.
Key Terms and Concepts
- stare decisis
- binding precedent
- persuasive precedent
- ratio decidendi
- obiter dicta
- distinguishing
- overruling
