An introduction to Judicial Precedent

ILLT Week 4
Hannah Gibbons-Jones
[email protected]
Week Four Content

Part 1 Revisiting the Structure of the Court

Part 2 The form of Judgments

Part 3 Using Precedent

Why Learn about
Precedent?
• It is a form of legal statement –
interpretation and declaration of
the legal rule.

• A explanation of law and details of

legal decision making

• A recognised method of legal

communication
• to transfer standards of practice and
to develop understanding between
Judges, Academics, Practitioners (and
Students)
Introduction to Precedent Aims
• This session is to support you to

• To explain law reporting and illustrate access to case reports.

• To recognise the hierarchy of the courts

• To understand the doctrine of Stare Decisis and how courts are bound

• To explain and Identify principles of Ratio Decideni and Obiter Dictum

• To be aware that there are methods of avoiding precedent

Accessing and Using cases
• Referencing Cases
https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012.pdf
• Law Library Databases
https://www.nottingham.ac.uk/library/studying/subject-
guides/socialsciences/index.aspx
• Westlaw
• Lexis
• British and Irish Legal Information Institute https://www.bailii.org/
• From the Specific Court
• Supreme Court https://www.supremecourt.uk/decided-cases/index.html
• Court of Appeal https://www.judiciary.uk/judgments/
Law Reporting
WLR

All ER

HL

CH
https://www.bailii.org/cgi-
FAM bin/format.cgi?doc=/uk/cases/UKHL/1969/4.html&query=(RE)+AND+(Agar)+AND+(Ellis)

https://www.supremecourt.uk/cases/docs/uksc-2017-0202-judgment-accessible.pdf
Cases with a neutral citation
(published after 2001)
 How case law is cited - neutral citation
• Since 2000 - all High Court or
higher level cases
• unique reference – online only
system
• court
• year
• which case it was in that
year
• E.g MWB v Rock: [2018] UKSC 24

• Note: 2000-2009 – UKHL

• 2009 onwards - UKSC

7 November, 2023 7
Reading Cases…..Who is who?

• First Instance
• The Party bringing a civil case = Claimant
• The Party against whom the case is brought is the
Respondant

• At Appeal
• The Party bringing an appeal = Appellant

• TIP Map the case using the names of parties

rather than the position…
Explaining Precedent
& Court Hierarchy The fact is, and I hope it will never be necessary to say
so again, that, in the hierarchical system of courts
which exists in this country, it is necessary for each
Cassell & Co Ltd v lower tier, including the Court of Appeal, to accept
loyally the decisions of the higher tiers.
Broome (No 1)
[1972] 2 WLR 645,
[1972] AC 1027 Where decisions manifestly conflict, the decision in
Young v. Bristol Aeroplane Company [1944] K.B. 718
per Lord Hailsham offers guidance to each tier in matters affecting its
own decisions. It does not entitle it to question
at 1054 considered decisions in the upper tiers with the same
freedom. Even this House, since it has taken freedom
to review its own decisions, will do so cautiously.
Doctrine Of Precedent
 UK Supreme Court European Court of
Appeal only, on points of law Human Rights
Hierarchy of
the Courts
Court of Appeal Employment
Appeals & Appeal only, to either the Appeal Tribunal
Judges Criminal or Civil Divisions

High Court Employment

Chancery, Queen’s Bench and Family Tribunal
Divisions.

Crown Court Upper Tribunal

First Tier
County Court
Family Court Tribunal

Magistrates’ Court
 • STARE DECISIS
• Let the Decision Stand
• Like cases should be treated alike

Key Principles • Stare Decisis establishes the law – once a decision

has been reached it is regarded as valid law

• Stare Decisis creates and preserves principles of

legal certainty

• NOTE not every statement of a superior court will

lead to a precedent
Statements made within a case
RATIO DECIDENDI OBITER DICTUM

The Reason for the Decision • Things said in passing (by the way)

The binding part of the judgment • Not connected to the outcome of a case – linked to
ancillary matters
Directive element – a conclusion about the law as
it stands • Can be regarded as advisory (not binding but has value)

The conclusion is directly based on Law applicable • Sometimes created unintentionally, other times
to the issue at hand
expressly
A Ratio may be expressly or impliedly referenced
within a law report • Obiter may carry the reflection of the judge on a related
Law reports may reference to statute in the ratio point – had they been asked to decide on that issue.
RATIO
DECIDENDI
• Latin for rationale for the decision
• A clear statement of the Legal rule and the
associated reason for the decision in the case
• Difficult to read
• Judges may not signpost why they have reached their decision –
Hard to identify!
• There may be a number of reasons behind the decision – Which is
the ratio?

• More than one judge – Whose judgment is the ratio?

• Regina v. Durham Constabulary and another

(Appellants) ex parte R (FC) (Respondent)[2005] UK
HL 21
https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd050317/dur
ham-1.htm

This Photo by Unknown Author is licensed under CC BY-SA

 • LORD BINGHAM OF CORNHILL • BARONESS HALE OF RICHMOND
Para 19 Para 29
…I am of the clear opinion that neither the The child is a human being, not a mere object of
warning of R nor the decision to warn him social control. As Dame Elizabeth Butler-Sloss
Agreement on decision involved the determination of a criminal
charge against him. Had they done so, as the
memorably put it in her Report on Child Abuse in
Cleveland 1987, 'the child is a person and not an
appellants acknowledged, there would have object of concern'. Children will not be brought
been no valid waiver by him of his fair trial up to obey the law and respect the rights of
Disagreement on right… others if they perceive that the system is treating
reasons Para 20
them arbitrarily or unfairly. The fundamental
issue in this appeal is whether it is fair to subject
…Children and young persons are, ex a child to a formal diversion process with
hypothesi, immature, and so liable to be mandatory legal consequences without first
more vulnerable than adults and more obtaining his informed consent.
Regina v. Durham amenable to education, training and Para 46
formative influences. That is why statutes
Constabulary and habitually distinguish between children and It is good for children to learn to take
another (Appellants) young persons on the one hand and adults responsibility for their actions: that is part of
on the other… growing up to be responsible members of
ex parte R (FC) society. It is therefore good for children to 'own
(Respondent)[2005] up' when they have done wrong. But it is
absolutely vital that children's admissions, like
UK HL 21 adults', should be voluntary and reliable. Corners
should not be cut just because the offender is a
child. They must not be under any pressure to
'admit it and we'll let you off with a caution'.
 OBITER
DICTA
• Things said in passing (by the way)
• Intentional
• Incidental

• Not connected to the outcome of a case

• The discussion or wider explanation of
issues as the judge sees them or a
hypothesis on what might be the
approach if facts were different
• Includes comments of a dissenting
Judge
• Can be regarded as advisory, not binding
but may have clear authority (if coming
from the Higher Courts)
• Cross & Harris Precedent in English Law (4th Edn.
Clarenden Press 1991) 77
Stack v Dowden [2007] UKHL 17
Statement of Approach to making the decision
The key to simplifying the law in this area lies in the identification of the correct starting point. Each
case will, of course, turn on its own facts. But law can, and should, provide the right framework.
Per Lord Walker at para 15
I am not sure that I can usefully add anything at all to Lady Hale’s opinion. But it may be worth
saying something, as a sort of extended footnote, about the theoretical underpinning of this area of
the law, and its development since those issues were considered by this House in Pettitt v Pettitt
[1970] AC 777, Gissing v Gissing [1971] AC 886 and Lloyds Bank v Rosset [1991] 1 AC 107.
Baroness Hale at para 40
This is, so far as I am aware, the first time that this issue has come before the House, whether the
couple be married or, as in this case, unmarried. The principles of law are the same, whether or not
the couple are married, although the inferences to be drawn from their conduct may be different:

• https://publications.parliament.uk/pa/ld200607/ldjudgmt/jd070425/stack.pdf
Later applied in Jones v Kernott property issue (not identical)
Hedley Byrne v Heller [1964] AC 465
• Ratio – No liability due to loss because of disclaimer. • Obiter - A duty of care can arise from
making statements causing economic loss
• Lord Morris of Borth-y-Gest
• Lord Morris of Borth-y-Gest:
• There is much to be said, therefore, for the view that if a
banker gives a reference in the form of a brief expression of If … ‘a person takes it upon himself to give
opinion in regard to credit-worthiness he does not accept, information or advice to, or allows his
and there is not expected from him, any higher duty than information or advice to be passed on to,
that of giving an honest answer…. because in my judgment another person who, as he knows or should
the bank in the present case, by the words which they know, will place reliance upon it, then a duty
employed, effectively disclaimed any assumption of a duty of of care will arise…’
care. They stated that they only responded to the inquiry on
the basis that their reply was without responsibility. If the
enquirers chose to receive and act upon the reply they
cannot disregard the definite terms upon which it was given.
https://www.bailii.org/uk/cases/UKHL/1963/4.html
 Donoghue v Stevenson [1932] AC 562
• Ratio
Lord Atkin, Thankerton and Macmillan (majority 3 to 2) …. a manufacturer of products,
which he sells in such a form as to show that he intends them to reach the ultimate
consumer in the form in which they left him with no reasonable possibility of intermediate
examination…owes a duty to the consumer to take that reasonable care.

• Obita - The Neighbour Test – per Lord Atkin

Lord Atkin - The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be – persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected when I
am directing my mind to the acts or omissions which are called in question.

• Dissenting
Lords Buckmaster and Tomlin dismissed the appeal, which means they decided in favour of
the defendant Mr Stevenson that there was no legal duty of care owed to Mrs Donoghue.
Their judgements are called dissenting opinions.
https://www.bailii.org/uk/cases/UKHL/1932/100.html
 A dissenting opinion is an opinion
of one or more judge expressing
Obiter –
disagreement with the majority
Dissenting opinion.
Voices in a
Judgment
A dissenting opinion cannot create
binding precedent because the
holding in the opinion is not the
holding of the court in the case.
Obita - Decisions from other countries.

Especially when the other country uses the same ideas

of common law as in our system.

This applies to Commonwealth countries such as:

• Canada
• Australia
• New Zealand
 European Court of
Supreme court Human Rights
Stare Decisis
& Hierarchy
of the
Courts
Court of Appeal
Employment Appeal
Tribunal

High Court – Divisional Employment

Tribunal

Crown Court
Upper Tribunal

First Tier
County & Tribunal
Magistrates
 Decisions in Action:
Court & Appeals
Gibson v Manchester City Council? [1979] 1 WLR 294
Facts: Gibson argued that he had contract to buy his council house (sale of
land). Council changed from Conservative to Labour control and argued no
– Gibson wanted to court to compel the Council to sell to him
(Equitable Remedy of Specific Performance).

Legal Issue outlined by House of Lords

Lord Diplock “…whether in the correspondence between the parties there
can be found a legally enforceable contract for the sale by the Manchester
Corporation to Mr. Gibson of the dwelling-house of which he was the
occupying tenant at the relevant time in 1971…”

i.e. What does contract law mean by agreement and is it present on the facts
here?
This Photo by Unknown Author is licensed under CC BY-SA
Gibson v Manchester City Council [1979] UKHL 6
• Appeal to House of Lords by Council after the decision of the Court of Appeal (2 to 1
majority)

• House of Lords held: In cases where exchange of correspondence as on facts, there must
be clear O&A present.
• Lord Diplock My Lords, the application form and letter of 18 March 1971 were relied on
by Mr. Gibson as an unconditional acceptance of the corporation's offer to sell the house;
but this cannot be so unless there was a contractual offer by the corporation available for
acceptance, and, for the reason already given I am of opinion that there was none.
• Lord Russell would allow the appeal - I cannot bring myself to accept that a letter which
says that the possible vendor " May be prepared to sell the house to you " can be
regarded as an offer to sell capable of acceptance so as to constitute a contract. The
language simply does not permit such a construction. Nor can the statement that the
letter should not be regarded as a firm offer of a mortgage operate to turn into a firm
offer to sell that which quite plainly it was not.
• Lord Edmund-Davies, Lord Keith and Lord Fraser agree
• Council won and C of A overruled
Navigation of Judgments
Binding Precedents Persuasive Precedents
• Facts in the Case and case before • Similar facts but not analogous or
must be same- this justifies the facts are same but judgment comes
application of the legal rule in the from the lower court
same way • Things said by the way (from superior
• Decision followed is in a superior court)
court or at same level • Dissenting Judgement (disagreeing
• The decision followed is the reasoning with the Ratio)
(ratio decidendi) • Legal rule is part of judgment from a
court outside England and Wales
(including the Privy Council)
 Bound to
Distinguish
Follow
Being bound
by decisions
Overrule Reverse
 • There may be one or more ratios in a judgment

• A case can concern one or more legal rules

• Previous case law + material facts + decision = Ratio

Decidendi

Summary • Difficult to find!

• Obita Dictum is persuasive but not related to material facts

and so not decisive

• Words use are significant – understanding not just reading!

This Photo by Unknown Author is licensed under CC BY-SA-NC
ILLT Precedent
Lecture 2

Hannah Gibbons-Jones
 Lecture Two Objectives

Review of the Court Structure Understand the relationships Identify the approaches to Recognise Tools for using
between the courts Precedent used by the Superior Precedent
Courts and Lower Courts
A Review on Key Principles and Terminology

Stare decisis Identify the Ratio

Appellate courts
operates so that Lower courts = By isolating the
ordinarily follow Ratio decidendi = Obiter Dictum =
Lower courts need not follow material facts and
their own The reason for Things said by the
must follow the their own considering their
previous the decision way
binding decisions decisions. relevance to the
decisions.
of higher courts. decision.
Linking Hierarchy
with Judgments
Structure of the Courts (England and Wales)

Source: Judicial System of England and Wales: A visitor’s guide https://www.judiciary.uk/wp-

content/uploads/2016/05/international-visitors-guide-10a.pdf. See also https://www.judiciary.uk/wp-
content/uploads/2021/07/courts-structure-0715.pdf
Position of the Supreme Court
• SUPREME COURT was previously House of Lords
• Until 1966 the House of Lords was bound by its own
previous decisions.
• Established in the case of London Street Tramways v
London County Council (1898) when the court it
bound itself in the interests of certainty.
• Then the Practice Statement (1966), issued by the
Lord Chancellor, stated that although the Highest
Court would treat its decisions as normally binding but
…it would depart from these when it appeared right to
do so.

This Photo by Unknown Author is licensed under CC BY

 Practice Direction - Judicial Precedent [1966] 3 All ER 77 (HL)

LORD GARDINER LC made the following statement on behalf of himself and the Lords of Appeal in Ordinary:

Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law
and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in
the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless 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 appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts,
settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as
to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.
 • See Austin (FC) (Appellant) v Mayor and Burgesses of
the London Borough of Southwark (Respondent) [2010]
UKSC 28 para 25
https://www.supremecourt.uk/cases/docs/uksc-2009-
The Supreme 0037-judgment.pdf

Court 25. The Supreme Court has not thought it necessary to re-issue the
Practice Statement as a fresh statement of practice in the Court’s

Approach
own name. This is because it has as much effect in this Court as it
did before the Appellate Committee in the House of Lords. It was
part of the established jurisprudence relating to the conduct of
appeals in the House of Lords which was transferred to this Court by
section 40 of the Constitutional Reform Act 2005. So the question
which we must consider is not whether the Court has power to
depart from the previous decisions of the House of Lords which have
been referred to, but whether in the circumstances of this case it
would be right for it to do so.
The Court of Appeal
• The Court of Appeal is bound by
decisions of the Supreme Court even if
it considers them to be wrong.
• In Young v Bristol Airplane Co Ltd
(1944), the Court of Appeal (Civil
Division) [1944] KB 331 CA held it was
bound by its own previous decisions
subject to the following exceptions:
• This applies to Criminal cases and can
be applied broadly if an individual's
liberty is at stake.
Young v Bristol Airplane Co Ltd (1944), the Court
of Appeal (Civil Division) [1944] KB 331 CA
Where a CA decision has been
expressly over-ruled or is Where there are two conflicting CA The previous CA decision was given
decisions per incuriam.
inconsistent with a higher court
• Relates to decisions of the House • The Court of Appeal must decide • Per incuriam means by
of Lords or Supreme Court being which to follow and which to carelessness or mistake. NOT the
inconsistent with a CA decision reject. same as per curium (agreement
• Cannot follow an earlier CA • The status of the rejected decision from all within a judgment).
decision that is not compatible is affected in the case in question. • Decisions given in ignorance or
with current SC approach. • Illustrating this is NatWest Bank forgetting elements of a statute –
• Rarely occurs when a case has Plc v Powney 1991 Ch339 (CA) decisions made without the
leap-frogged and progressed from correct law.
the High Court to the UKSC/HL • The decision has to be manifestly
wrong Cave v Robinson Jarvis &
Rolf [2001] EWCA Civ 245
 Kings Bench Division

The High
Court of
England &
Wales

Divisional Courts: Supervisory , First Instance & s. 31C(2) Family & Matrimonial Proceedings Act 1984
Other Courts • Divisional Courts (Crown
Court)
• High Court
• Bound by the Court of
• Bound by the Supreme Court Appeal and the Supreme
and the Court of Appeal and Court but is not bound by
normally follows a previous other High Court decisions.
decision of another However, they are of strong
Divisional Court but has persuasive authority in the
similar exceptions to the High Court and are usually
Court of Appeal (Police followed. Decisions of
Authority for Huddersfield v individual High Court judges
Watson). are binding on the county
courts.
 Using Overrule Reverse

Precedent Distinguish

Bound to
Follow ?
 “…Bound to
follow
Precedent…”
The case has similar facts to a
previous case, therefore the
law will be applied in the
same way to produce a
decision.

Remember:
This Photo by Unknown Author is licensed under CC BY-SA

• Ratio decidendi
• Obiter Dictum
 The binding part of the case is the ratio (which applies to the material facts)
If the facts of the case are not sufficiently similar to the previous case(s), the
judge need not follow the precedent set.

Distinguishing

In the decision the court will explain that it will not be using the ratio because of
this material difference and will explain its approach to the decision.

This can take into account social changes Cases may be appealed and can be
and norms and values of the time. overruled or reversed by higher courts.

e.g. Merrett v Merritt (1971) distinguished Balfour v Balfour (1919) as it was

decided that a couple that is separated still intend to be bound by their
agreements, contrary to the judgment given in the original case.
 A decision made in a
lower court can be • This means that the precedent will cease to be
authoritative.
overruled by a judge in a • The outcome will remain the same in the case that is

Overruling
higher court or the overruled - but is (negated) not followed in future.
Supreme Court

The later judgment by

the higher court will then
• (Remember choosing between two cases in Young v Bristol
be followed and the Aeroplane).
other decision set aside –
redundant

The court taking this

route must expressly • to prevent the current decision being regarded as per
state why it is overruling incuriam.
a judgment.

• HL decided that Hansard could be admitted in evidence

Seen in Pepper v Hart before the court when trying to decide what was meant
[1993] by the particular words in a statute. This overruled the
previous ruling in Davis v Johnson [1978]
 • A higher court overturns a decision or part of a decision in
the same case as a result of an appeal in the same case.
• The basis for this change may be that the decision of the
Reversing lower court may be considered to be interpreting the law
wrongly.

• Shown in the case of R v Woolin [1999] AC 82 (HL)

• where the House of Lords refused to follow the approach of the
Court of Appeal
• They reversed the CoA decision – upholding the conviction for
murder.
• Paul v The Royal Wolverhampton NHS Trust [2022] EWCA
Civ 12.
• The Court of Appeal reverse the decision in this case.
• This was decided on the basis that they (and the Court at first
instance) were bound by a previous decision
• The previous decision was by the Court of Appeal (Taylor v A Novo
(UK) Ltd [2013] EWCA Civ 194; [2014] QB 150).
[Civil court structure] Example civil case- appeals

No permission to appeal to the supreme court

https://www.supremecourt.uk/procedures/how-to-
appeal.html

London Borough of Lambeth v

Agoreyo [2019] EWCA Civ 322
(A=Lost)
Agoreyo v London Borough of
Lambeth [2017] EWHC 2019 (QB)
(A=won)

Agoreyo v London Borough of

Lambeth- first instance decision
before His Honour Judge (HHJ)
Wulwik, made in the Central
London County Court on 12
January 2017 (A =Lost)
https://www.cloisters.com/london-borough-of-lambeth-v-agoreyo-no-
longer-in-suspense/
 Looking for the
ratio ….
• Motor Vehicles in Recreational Area Act 2022
• s.3 A person will be guilty of an offence if driving a motorised vehicle
through a public park that has restrictions
• After a long day at work and needing to catch a train, Clare drove through
her local park. She used the paths and paved areas. She was stopped by a
park warden who called the Police. She was charged and bailed. Her trial at
the Magistrates court.
• First Instance – Guilty and fined.
• At Appeal – Absurd result - contrary to intention of Parliament (statutory
Interpretation)
• Legal Issue is the wheelchair a vehicle or disability aid?
2 Approaches identify the Ratio Decidendi

Wamburgh’s Goodheart
The reader identifies a supposition (theory) of what the
ratio is.
• It is possible to identify the ratio
The reader then tests the theory by reversing the
by examining the facts of the
meaning of the chosen text. case that set the precedent
The reader then considers if the outcome (legal result)
would be the same. • Focus on the Material facts that
If the answer is yes, then it is Obita rather than Ratio relate to the matters central to
the legal dispute
Used to rule out Obiter.
• i.e. the driving of the wheelchair
Problem if there is more than one ratio…. assisted by a motor in the park
 ILLT Precedent
Lecture 3

Reviewing Precedent & Reading Cases

Hannah Gibbons-Jones
 Recap & Review

Persuasive precedents could arise

A judge will set out the facts of the If the previous case has been heard in a where the case was heard in an equal
case and how they have come to their higher court, it will be a binding or higher court (or the Privy Council) or
decision. This is the “ratio decidendi” precedent, and will have to be from the “obiter dicta” of the judge’s
and forms the judicial precedent. followed. speech. These persuasive precedents
can also come from lower courts.

The higher court might overrule the

Judges might distinguish precedents precedent (if the judges think the legal
The Supreme Court (previously the (avoid following the previous principles behind the precedent are
House of Lords) can ignore its own
precedent) if there are enough wrong). If they actually overturn the
precedents in certain circumstances.
differences in the facts. decision in a particular case they are
reversing it.
 • The careful use of precedents will do much to keep the law stable and
certain and prevent it changing too radically (without new legislation).
The Benefits
of Precedent • Distinguishing and overruling precedents will enable the law to change with
the times more quickly than Parliament will be able to. It may make
decisions in court more just.
• Parliament often takes a long time to change the law for example the
Civil Partnership Act 2004 – 9 years to get to the - Marriage (Same
Sex) Act 2013

• Concepts of Justice - Similar cases are dealt with in a similar way.

• Consistent patterns of advice and support can be provided for
claimants and defendants/respondents by professionals.

• The use of precedents can save the courts and judicial system a great deal
of time and cost
• In reviewing law, as they establish well-known principles of law that
judges can quickly follow in later cases.
 • Broader approaches to decision making and the development of original
precedents could generate new laws
The • Parliament is the Supreme Law Maker (Dicey)

Disadvantages • The doctrine of stare decisis can make the law too rigid and inflexible
• Some approaches to decisions can be remade again and again.
of Precedent
• It is virtually impossible to find all precedents among the millions of
reported cases.
• This can lead to a narrow focus and few examples being used.

• If the judge’s summing up is long and complicated

• May be very difficult to separate the ratio decidendi from the obiter
dictum

• As so many of the courts have to follow the decisions of previous superior

courts, change may be a long time coming.
• Not many cases reach the Supreme Court…
Critical Evaluation points
• “The open texture of law • “Dicta of the highest degree of
means that there are , persuasiveness may often…be
indeed, areas of conduct indistinguishable from
where much must be left pronouncements which must
to be developed by courts Cross and Harris be treated as ratio
or officials…” Hart (Concept of (Precedent in decidendi…”
Law) 1972 at 132 English Law)
1991 at 77

Gillespie & Nobles and

Weare (The Schiff (Observing
English Legal Law through
System) 2019 at Systems Theory)
• “Certainty and predictability are 81 2013 at 65 • Court Judgments “…have legal
not achieved by refusing to tinker force based on the authority of a
with the law unless absolutely court within the system of
necessary but rather by ending precedent, rather than the
bad decisions” quality of the reasons contained
in the judgments…”
 Key points to remember
• Judges at all levels of the hierarchy must follow similar decisions of higher courts

• Judges in the Supreme Court have the freedom to choose whether to follow their own previous
decisions – 1966 Practice Direction

• Judges in the Court of Appeal can use the Young v Bristol Airplane Co Ltd (1944), the Court of Appeal
(Civil Division) [1944] KB 331 exceptions

• Law Reports are generated when

• There is statutory interpretation
• Judicial determination of words or phrases
• At appellate level – the judges have developed or determined a new legal rule
• By looking at previous cases
• To give clarity to the law
Reading a law Report

Citation Date of Catch words Headnote Cases Procedural The

•Neutral Hearing •Chosen by the •Summary of the Referred History Judgment
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