Stare Decisis and Legal Precedent

Precedent/Stare Decisis

  • Stare decisis: Seeking guidance for current practice from past events.
  • Advantages: many and obvious as long as it is remembered that it is a policy and not a binding unalterable rule per Walsh J.
  • Principles of stare decisis: settled expectations, whether precedents have proved unworkable; precedent promotes stability and even handedness per Roberts CJ

Do judges make law?

  • William Blackstone: judges do not make law, but merely discover and declare the law that has always been there.

Why do we have cases?

  • Each case represents the solution to a particular dispute.
  • Statutory law (legislation) attempts to prevent problems.
  • Judicial decisions (primarily) aim to resolve problems
  • In common law systems, the concept of “case law” increases certainty.

Case law

  • Made by Judges
  • Reasoning by analogy
  • Adversarial presentation of arguments
  • Used to:
    • Create new areas of law
    • Develop existing areas
    • Interpret Legislation

Precedent: the basics

  • Judicial decision-making = application of existing legal principles to particular factual situations.
  • Courts follow earlier relevant decisions so that decisions reached are attributable to a preceding body of law.
  • Precedent: much more significant in common law countries; case law is a SOURCE of law not merely an example to be imitated.
    • Binding precedent (courts are required to follow) vs Persuasive precedent (Courts have discretion).
    • Principle of stare decisis; let the decision stand

Precedent & Facts

  • Same rule applied to similar facts.
  • Distinguishing facts: self-defense.
  • Legally material facts were different.

Role of Precedent: overview

  • Need consistency to: ensure law applied equally; to ensure certainty of law; fair notice or legitimate expectations.

Key terms

  • Precedent: If an earlier case is sufficiently similar in fact & law to the case in hand, the court should follow the decision and apply the “precedent” established in the earlier case.
  • Stare decisis: “stare decisis et non quieta movere” → to stand by what is decided and not to disturb what is quiet. Common law doctrine which requires judges to follow precedents established in previous decisions.
  • Ratio Decidendi: Part of the judgment that is binding; the 'reason for the decision‘, legal principle in question.
  • Obiter Dictum: Any other “by the way” statements of law; not of direct relevance to the decision and non-binding.

Advantages of Precedent

  • Consistency – uniformity in judges decisions, previous decisions of a similar nature are followed, ensuring stability.
  • Equality – like cases are treated alike, ensuring equal treatment before the law.
  • Predictability – becomes easier to determine the legal merits of proposed actions if there is an existing body of law in the area to draw from.
  • Public confidence – this existing body of case law shows that judges aren’t making decisions arbitrarily, ensuring confidence in the law.
  • Certainty – existing common law principles can only be changed according to the hierarchical court system, so the content of law should be knowable.
  • Thus, precedent ensures Rule of Law values.
  • However, too strict a reliance on precedent can suffocate development of law, so there is a balance.

How precedent works

  • Main rule is that courts must follow the previous decisions of Courts superior to them in the judicial hierarchy - vertical aspect.
  • Also a horizontal aspect – courts also bound to an extent by courts of co-ordinate or equal jurisdiction, although sometimes Courts declare a freedom to depart from earlier decisions.
  • Strict/liberal approach to precedent - NB When courts are bound by previous decisions it must follow the legal reason or principle of law applied in that previous case – the ratio decidendi.
  • Other principles, which were not an element of the substantive decision are obiter dicta, and need not be followed.

Court Hierarchy

  • Supreme Court binds all lower courts.
  • High Court is flexible.
  • Higher court can:
    • Overrule precedents of lower courts established in different cases.
    • Reverse precedent in appealed case.

Structure of judgments

  • Statement of material facts of case.
  • Summary of submissions of both parties.
  • Discussion/analysis of relevant legal principles.
  • Application of relevant legal principles to facts.

Stare Decisis requires

1) Hierarchy of courts
2) Accurate Law Reporting
3) Acceptance of the binding nature of precedent

Stare Decisis requires: 1) Hierarchy of courts

  • Court must follow prior decisions (ratio decidendi) of superior courts; prior decisions of courts of equal jurisdiction (flexible).
  • Not bound by decisions of inferior court/ foreign courts (persuasive)
  • However, no two cases are identical in fact so this is not a straightforward issue – courts must consider legal principles laid down in similar cases and apply the legal reasoning in previous cases to the case at hand.
  • Some cases may be conceptually different – have similar fact scenarios but concern different points of law, so the earlier decision does not have to be followed

Stare Decisis requires: 2) Accurate Law Reporting

  • If previous decisions are to be followed they must be accurately recorded and accessible.
  • Traditionally, law reports were only found in bound law reports in law libraries.
  • Accurate law reporting allows for clear application and analysis of law both by courts and academics alike. But this can be a complex process.
  • 2 main sources of court reporting: IR - Irish Reports; ILRM - Irish Law Reports Monthly
  • Other sources: Irish Jurist Reports; specialist reports (eg. Irish Tax Reports); Electronic databases inc. Lexis, Courts.ie & baillii.org

Stare Decisis requires: 3) Acceptance of the binding nature of precedent

  • HC isn't bound to follow a statement of law by the SC if it is an obiter remark
  • Lower courts required to follow decisions of higher court even if believed to be erroneous & likely to be overruled by the Supreme court.

Precedent Pros and Cons

  • Advantages
    • Law applied equally
    • Certainty
    • Ensures consistency
    • Predictability
  • Disadvantages
    • Limits courts’ overall discretion
    • Can force judges to distinguish cases on illogical grounds
    • May contain differing arguments (majority/minority) decisions, making precedent hard to understand & apply

Additional Terminology

  • Reversed decision: decision in lower court is replaced by that of a higher court; usually via an appeal.
  • res judicata: “the matter has been decided” - a decision is final and no longer subject to the possibility of an appeal. The parties to the case are bound by the decision.
  • To overrule: where a higher court decides that the lower court made an erroneous decision.
  • To distinguish: Where a later court decides that the previous case is not relevant to the case in front of it (on the facts or legal issues) most relevant for courts of equal jurisdiction.
  • Per incuriam: "through lack of care" where a court reaches a decision in ignorance of a relevant statutory provision or binding precedent (no valid precedent is established - does not then have to be followed as precedent by a lower court. )
  • Sub silentio: “under silence” where it appears that a court decided a point without it being argued or mentioned in the judgment (no valid precedent is established)

Stare Decisis in the Supreme Court?

  • Generally, lower courts must follow decisions of a higher court even where it firmly believes them to be wrong - O’B v. Pattwell [1994]
  • Is the Supreme Court bound by its own decisions?
    • The State (Quinn) v. Ryan, [1965] Walsh J: “The advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding, unalterable rule”
    • A.G v. Ryan’s Car Hire Ltd. [1965] Kingsmill Moore CJ: “In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of the opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it at all events in exceptional cases.”
    • While the SC will generally follow its own decisions, it reserves freedom to depart from them where there are compelling reasons.

Stare Decisis in the High Court?

  • Ordinarily the HC is not considered to be bound absolutely by its earlier decisions.

Stare Decisis in the Court of Appeal?

  • Appeals to SC are limited- should there be a strict approach?.
  • Criminal appeals might be different?

Decisions of Persuasive (not binding) force

  • Inferior Courts (DC and CC) - persuasive authority only; do not bind superior courts
  • Foreign Decisions- persuasive precedent (esp where no Irish authority/ area of law not been dealt with in Irish law
  • Academic writings

Ratio Decidendi & Obiter Dictum

  • Courts only bound by the ratio decidendi; the reason for the decision; which is concealed within the reasoning; Zander (2020): ‘a proposition of law which decides the case, in the light or in the context of the material facts’
    • An obiter dictum is a proposition of law; within the judgment but not binding.
  • 'The RD of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury’
  • While not necessarily binding, dicta can be useful in later cases…

Searching for the ratio

  • Cases may not expressly state the ratio
  • Later courts have to “discover “ it
  • Involves skill & experience
  • Easier to identify when a single judgment is delivered..

Obiter Dictum (dicta) and ‘law-making’

  • Obiter Dictum= a statement of law, which is not binding; not considered to be directly relevant or essential to the decision; persuasive authority
  • Evolution of Precedent- RD =combination of what happened in court on day of decision AND interpretation by future courts.
  • Precedent and ‘Judicial law making’- stare decisis is sufficiently flexible to allow for the development of rules by judges BUT judicial discretion is limited; legislators make the law

Flexibility?

  • Process of adjudicating on a claim or right can involve the creation of law.

Precedent in Action: An Example

  • courts examine the relevant circumstances in the present case
  • The rule to be applied to the case must be discovered by examining previous similar cases (precedent); rule applied to the circumstances of present case.
  • Law of negligence; liability of professionals (doctors, lawyers, etc).
  • Donoghue v Stevenson [1932]. Lord Atkin outlined his famous ‘neighbour’ principle – “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Donoghue v Stevenson

  • Established was no need for a contract between the plaintiff and defendant for liability to exist.
  • Lord Atkin also put forward a narrower proposition:
    • applies to manufacturers of products, but principle now applied to a much wider range of categories

Professional Negligence

  • Finlay v Murtagh; solicitor had not brought the pl’s claim in time- pl sought to sue him for negligence. The question was could he sue in tort law, or only in contract?
    • Suggested a duty could also be owed to those who are NOT clients but are still relying on the solicitor’s skill and expertise

Professional Negligence

  • Wall v Hegarty [1980] Mr Wall lost an expected inheritance of £15,000 from his uncle; will made by uncle’s solicitor not valid.

Professional Negligence

  • Doran v Delany [1998], argued that the solicitors representing the vendor (the seller) in a land transaction owed a duty of care to the purchasers.