Rules of Precedent and How the Courts Works

Judicial Law Making

Lord Lowry in C (a minor) v DPP [1996] AC 1 set out five principles guiding when judges should or should not develop the law:

1. Judges should avoid creating new law when the solution is doubtful.

2. Judicial caution is needed when Parliament has chosen not to address a known issue.

3. Social policy questions are less suitable for judicial intervention than purely legal issues.

4. Fundamental legal doctrines should not be changed lightly.

5. Judges should only change the law when doing so creates certainty and finality.

This reflects the tension between judicial creativity and judicial restraint.

What is Ratio Decidendi?

• The legal principle or rule that forms the basis of the court’s decision.

• Derived from the material facts and the legal reasoning applied to them.

• Includes any statutory interpretation technique used.

• Not the outcome (e.g., guilty/not guilty).

• If the court is answering a legal question, the ratio is the answer.

Case Law: Stare Decisis, Res Judicata, and Precedent

Key Features

• Case law is created only when a case comes before a court.

• Judges cannot make law outside the issues raised in the case.

• Precedent operates under Parliamentary supremacy.

• Case law is retrospective — it applies to events that have already happened.

Stare Decisis

“To stand by decided matters.”

Implications

• Courts must follow the ratio of higher courts and usually courts of equal standing.

• Ensures certainty, predictability, and logical development of the law.

• Requires a clear hierarchy of courts.

Res Judicata

“A matter judged.”

Effect

• Once a case has been finally decided between the same parties on the same facts, it cannot be litigated again.

• Prevents repeated litigation and protects finality.

Example of Res Judicata Re Waring / Berkeley v Berkeley

• Beneficiary A lost a tax case; later the law changed in Berkeley.

• A could not benefit from the new ruling because his case was already concluded.

• Beneficiary B also could not rely on the new ruling because the original matter had already been decided — res judicata barred him

Precedent: Hierarchy

• Lord Hailsham in Cassell v Broome [1972] AC 1027 emphasised that lower courts must loyally follow higher courts.

• Even the Supreme Court (formerly House of Lords) only departs from its own decisions cautiously.

Court Hierarchy

(You can imagine this as a pyramid.)

• Supreme Court

• Court of Appeal (Civil & Criminal Divisions)

• High Court (Divisional Courts + First Instance)

• Crown Court / County Court / Magistrates’ Courts

Supreme Court v Supreme Court / House of Lords

Before 1966

• The House of Lords was strictly bound by its own previous decisions.

• This prevented legal development unless Parliament intervened.

Practice Statement 1966

Allowed the House of Lords (now Supreme Court) to depart from its own decisions when:

• Necessary to avoid injustice, or

• Necessary for proper development of the law.

Still used sparingly to preserve certainty.

Court of Appeal: Civil Division

Bound by

• Supreme Court

• Its own previous decisions (with exceptions)

Exceptions (Young v Bristol Aeroplane [1944])

• Conflicting CA decisions → must choose one.

• Conflict with Supreme Court → must follow Supreme Court.

• Decision made per incuriam (without due care).

Court of Appeal: Criminal Division

Same rules as Civil Division plus one extra exception:

R v Taylor [1950]

The Criminal Division may depart from its own previous decisions where:

• Liberty is at stake, and

• The earlier decision misapplied or misunderstood the law.

This prioritises justice over strict adherence to precedent.

High Court

Appellate Jurisdiction

• Bound by Supreme Court and Court of Appeal.

• Bound by its own decisions, subject to Young exceptions.

Supervisory Jurisdiction

• When reviewing lower courts/tribunals, it is not strictly bound by other High Court decisions (but usually follows them).

High Court at First Instance

• Bound by higher courts.

• Normally follows other High Court judges unless the earlier decision is clearly wrong.

• Certainty is prioritised.

Lower Courts

Crown Court

• Bound by all higher courts.

• Crown Court decisions are persuasive only to other Crown Courts.

County Courts / Magistrates’ Courts

• Bound by all higher courts.

• Do not bind each other.

Avoiding Precedents

1. Overruling

2. Reversing

3. Distinguishing

Overruling

• A higher court declares that a legal principle in a different earlier case was wrong.

• The old rule is replaced.

Reversing

A higher court overturns the decision of a lower court in the same case.

Distinguishing

• A court avoids following a precedent by showing that the material facts differ.

Example:

• In R v Bentham, Lord Bingham distinguished the case from R v Morris because Morris involved a separate object (metal pipes), whereas Bentham used his own fingers.

The Morality of the Law Maker

Judges inevitably bring their values, attitudes, and moral perspectives into the law‑making process.

Law is shaped not only by logic but also by:

• Social values

• Judicial ideology

• Historical context

Morality

Law is influenced by the moral environment in which it is created.

Lawmakers’ personal values often shape legal outcomes, even when they are not consciously aware of it.

Common Law Systems

• Case‑centred

• Judge‑made law

• Flexible, pragmatic

• Used in UK, US, Commonwealth countries

Civil Law Systems

• Codified principles

• Less reliance on precedent

• Used in continental Europe

The CJEU, although based on civil law principles, increasingly uses case law for consistency.

Common Law

• Developed after the Norman Conquest

• Centralised, uniform system

• Historically rigid and formalistic

Equity

• Developed to remedy injustices caused by rigid common law rules

• Administered by the Lord Chancellor

• Focused on fairness

• Provides discretionary remedies (e.g., injunctions, specific performance)

Judicature Acts 1873–75

• Merged common law and equity into a single court system.

• Where conflict exists, equity prevails.

Common Law and Statute Law

• Common law = judge‑made law

• Statute law = Parliament‑made law

• Statute law has grown significantly, but courts still interpret and develop it.

• The relationship between the two is central to understanding English law.

Private Law

• Regulates relationships between individuals

• Examples: contract, tort, property

Public Law

• Regulates relationships between individuals and the state

• Includes: constitutional law, administrative law, criminal law

The boundary is not always clear.

For example, domestic violence was historically treated as private, which feminists argue denied women state protection.

Civil Law

• Private disputes

• Remedies include damages or injunctions

• Initiated by individuals

Criminal Law

• Public wrongs

• Prosecuted by the state

• Aims to punish and deter