The Doctrine of Precedent

The Doctrine of Precedent

Lecture Overview

• Introduction to the doctrine of precedent.

• Purpose and aims of precedent.

• Necessary basis and requirements for precedent.

• Stare Decisis: Meaning “let the decision stand”.

• Binding Authority.

• Persuasive authority.

• Vertical Precedent.

• Horizontal Precedent.

• Departing from Precedent.

Introduction

• Appeals to precedent are common in many systems, seeking guidance from past events (Byrne and McCutcheon).

• Following precedent ensures the consistent application of the law.

The Doctrine of Precedent

• The doctrine of precedent is of particular importance in common law systems.

• Seeks to ensure consistency in our legal system:

  • The law is applied equally.

  • Law becomes predictable.

• While courts should follow previous decisions, complex factors are involved.

• Not everything in an earlier decision is binding.

• The binding part of the judgment is the ratio decidendi (the reason for the decision).

• Considine v Shannon Regional Fisheries Board [1994] 1 ILRM 499 case

  • Costello J: the principle is clear; the ratio of a case is discovered by determining what proposition of law justified the decision in light of the material facts the court decided.

  • Lopes v Minister for Justice, Equality and Law Reform [2014] IESC 21

    • Lower courts are bound by the decisions of higher courts.

    • It is the actual decision of the higher court that applies.

    • A judge of a lower court is not bound by the views of a judge of a higher court which does not represent the majority view of that court.

Determining the Ratio Decidendi

• Professor Arthur L. Goodhart: ‘The principle of the case is found by taking account of (a) the facts treated by the judge as material, and (b) his decision based on them.’

• Professor Cross: ‘A case can comprise a number of rationes. One should select that which could be said to attract the support of the majority.’

Obiter Dicta

• Other statements of law in the judgment which are not of direct relevance to the decision are called the obiter dicta.

• These are not binding but are of persuasive authority and may be adopted by a later court.

Purpose of Precedent

1. Legitimises A Decision Of The Court

   • It prevents judges from making decisions based on personal opinion rather than established law.

   • Decisions are based upon previous decisions, which have the force of law.

2. Creates A Uniformed Body Of Principles And Rules

   • As decisions are consistently applied, the rules and principles contained within them act as rules of law.

   • Enables practitioners and members of the public to predict the likely outcome of cases and arrange their conduct accordingly.

3. Restricts The Discretion Of The Trial Judge

   • Guards against decisions being handed down with no legal basis.

   • Ensures that decisions handed down have some rational basis.

4. Preserves Public Confidence In The Judiciary

   • Court decisions are based upon set rules and principles which limit the discretion of a judge.

   • The public is safe in the knowledge that decisions handed down are done in accordance with the principle of justice.

Necessary Basis/Requirements

1. Hierarchy Of The Courts

   • It determines what decisions must be followed.

   • Lower courts must follow the decisions of higher courts.

   • Courts of equal jurisdiction can choose whether to follow each other’s precedent.

2. Accurate And Reliable Recording And Reporting Of Decisions

   • In order for a subsequent court to follow earlier decisions, there will need to be accurate and reliable recording of the decisions.

   • This ensures that the law is applied correctly.

   • IR; ILRM etc. These are accessible to everyone.

3. The Legal Community Accepts Binding Precedent

   • Practitioners and the judiciary must be willing to acknowledge and accept earlier decisions of higher courts.

Aim of the Doctrine of Precedent

• The aim is to provide consistency and predictability in the law.

• Consistency, certainty, and predictability are values that should be pursued.

• Decisions from higher courts need to be applied consistently.

Stare Decisis

• Latin term meaning “let the decision stand”.

• ‘[T]he principle of stare decisis reflects the expectation that earlier cases be followed’. (Byrne and McCutcheon)

• Some decisions are of binding authority:

  • Supreme Court decisions are binding on lower courts.

  • High Court decisions are binding on lower courts i.e. not the Supreme Court.

  • An inferior court must follow the earlier decisions of superior courts.

Vertical and Horizontal Precedent

• Due to the hierarchical structure of the court system, there are two dimensions to the system of precedent.

Vertical Precedent

• The Court of Appeal must follow decisions of the Supreme Court.

• The High Court must follow decisions of the Court of Appeal & Supreme Court.

• The Circuit Court must follow decisions of the High Court, the Court of Appeal, and the Supreme Court.

• The District Court must follow decisions of all of the higher courts.

• The State (Harkin) v O’Malley [1978] IR 269

  • The High Court is bound to follow an earlier Supreme Court decision, which the Supreme court then overruled because it was reached per incuriam.

• DPP (Walsh) v Cash [2007] IEHC 108

  • The High Court noted that it was bound to follow the Supreme Court decision despite having reservations.

• Where a lower court is bound by the decision of a higher court it must follow the decision.

• The parties have the right to appeal.

Horizontal Precedent

• While a court is not bound to follow the decisions of courts of equal jurisdiction, in practice, the courts usually do.

Supreme Court Decisions

• Binding precedent on all lower courts.

• The court generally respects and follows its previous decisions.

• The Supreme Court may depart from its own precedent only in exceptional circumstances.

• The State (Quinn) v Ryan [1965] IR 110

  • Facts: The prosecutor challenged the constitutionality of s. 29 of the Petty Sessions (Ireland) Act 1851.

  • SC Held: The advantages of Stare Decisis are many and obvious so long as it is remembered that it is a policy and not an unalterable rule. Declared its freedom to depart from a strict adherence to the rule.

• Attorney General v Ryan’s Car Hire [1965] IR 642

  • 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.

• McNamara v E.S.B. [1975] IR 1

  • Gave a number of indicators as to what ‘exceptional circumstances’ are.

  • The law can be adapted in light of changing social conditions and legal thinking.

  • If by reason of its rigidity or harshness, a rule is found to be unsatisfactory then it should be reconsidered.

• Mogul of Ireland v Tipperary (North Riding) County Council [1976] IR 260

  • A decision of the full Supreme Court, given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion.

  • Error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice.

  • A balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must at the least, be clearly of opinion that the earlier decision was erroneous.

  • Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if, in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand.

• Desmond v Moriarty [2018] IESC 34 at [98]

  • There is a ‘heavy burden’ to convince the Supreme Court that an earlier decision is ‘clearly erroneous’ or that there are ‘compelling reasons’ for overruling it.

Court of Appeal Decisions

• Binding precedent on all lower courts.

• O’B v Patwell [1994] 2 ILRM 465

  • Held: The Supreme Court noted that the High Court was bound to follow two decisions of the Court of Criminal Appeal, which it then proceeded to overrule as having been incorrectly decided.

• Court of Appeal has indicated a willingness to depart from previous own decisions, where the interests of justice so require. The Court of Appeals is prepared to change its mind on previous rulings if it's in the best interest of justice. Also, the Supreme Court pointed out that the High Court had to abide by a couple of Court of Criminal Appeal decisions, but then the Supreme Court reversed those decisions because they were wrong.

• ACC Loan Management v Connolly [2017] IECA 119, [2017] 3 IR 629

  • Although this court has not yet since its establishment in October 2014 been required to formulate its own rules regarding stare decisis, I think that by analogy with the doctrine of precedent applicable in the case of prior decisions of a coordinate court, then absent special circumstances, an individual member of this court should normally yield to the prevailing consensus as reflected in prior decisions of this court which are clearly on point and which, in the words of Finlay CJ in Finucane v McMahon, represent decisions ‘reached after the most comprehensive and detailed consideration of all the relevant factors’.”Basically, a judge on this court should usually agree with earlier decisions from the same court, unless there's a very good reason not to. Those earlier decisions were made after carefully considering everything important.

High Court Decisions

• Binding precedent on all lower courts.

• High Court may depart from its own precedent where there are substantial reasons for believing the initial judgment was wrong.

• Kearns v Manresa Estates Ltd (25 July 1975), HC

  • Although I am not bound by decisions of other judges of the High Court, the usual practice is to follow them unless I am satisfied that they were wrongly decided. - judges statement

  • The High Court is not bound by previous High Court decisions. However, it gives serious consideration to them.

• Irish Trust Bank Ltd v Central Bank of Ireland [1976-7] ILRM 50

  • A court may depart from a decision of a court of equal jurisdiction if it appears that such a decision was given in a case in which either insufficient authority was cited or incorrect submissions advanced or in which the nature and wording of the judgment itself reveals that the judge disregarded or misunderstood an important element in the case or the arguments submitted to him or the authority cited or in some other way departed from the proper standard to be adopted in judicial determination .

• Irish Trust Bank Ltd. v Central Bank of Ireland [1976-7] ILRM 50

  • If a decision of a Court of first instance is to be challenged I consider that the appellate court is the proper tribunal to declare the law unless the decision in question manifestly displays some or more of the infirmities to which I have referred.

  • The principle of stare decisis is one of great importance to our law and few things can be more harmful to the proper administration of justice […..] than the continual existence of inconsistent decisions of Courts of equal jurisdiction.

• Re Worldport Ireland Limited [2005] IEHC 189

  • Court Considered the circumstances in which it was appropriate for a judge of the High Court to revisit an issue recently decided by another judge of the court.

  • HC (Clarke J) Held: It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong… Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficient lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period Essentially HC (Clarke J) held that a High Court judge should generally respect and follow a recent decision made by another judge within the same court. However, they may re-examine the issue if the original decision seemingly overlooked crucial information, contains a clear mistake, or if the relevant legal understanding has significantly evolved since the original ruling.

• Re Worldport Ireland Limited [2005] IEHC 189

  • HC (Clarke J) Held In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all the relevant authorities and…based on forming a judgment between evenly balanced argument. If each time such a point were to arise a judge were free to form his or her own view without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered. A judge on the High Court should generally stick to recent decisions made by other judges within the same court, especially if those decisions were carefully considered. Re-examining the same points repeatedly would create too much uncertainty and outweigh any potential benefits.

• Re Worldport Ireland Limited [2005] IEHC 189

  • Points where a High Court judge might appropriately re-evaluate a decision previously made by another judge within the same court:

  • Where it is clear that the initial decision was not based upon a review of significant relevant authority

  • Where there is a clear error in the judgment

  • Where the judgment sought to be revisited was delivered a sufficient lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period (If a significant amount of time has passed since the original judgment, and the understanding or application of the law in that area has evolved, a judge might find it appropriate to re-evaluate the initial decision)

  • These points describe circumstances under which a High Court judge might appropriately re-evaluate a decision previously made by another judge within the same court. They suggest that if the original decision failed to consider key relevant

Persuasive Authority

• Some decisions are of persuasive authority:

  • Decisions reached per incuriam.

  • Decisions of courts of equal jurisdiction.

  • Decisions of courts of lower jurisdiction.

  • Decisions of international courts.

• While the court is not bound to follow persuasive authorities, they can provide useful guidance to the court.

Per Incuriam Decisions

• This is a decision based on ignorance of a binding authority.

• A decision that wrongly interprets an existing precedent or statute which is not binding.

Decisions Of Courts Of Lower Jurisdiction

• Not binding.

English Decisions In Ireland

• Not binding.

• Can be persuasive.

• English decisions can be used to analyze the development of a common law principle.

• MMcC v JMcC [1994] 1 IR 293

  • Held I think I have liberty to give effect to this opinion even though it is contrary to decisions of the English Courts on the subject. These decisions are of persuasive weight and should not be lightly ignored. But the Irish Courts are not bound by them and I think I am not required to follow decisions which misconstrued the effect of an earlier decision of the House of Lords…

  • (Basically, I can follow my own opinion, even if it goes against English court decisions. I should consider those decisions, but I don't have to follow them, especially if the English courts misinterpreted what the earlier House of Lords ruling actually meant.)

International Decisions

• Not binding.

• Decisions of other courts in other countries can be persuasive, particularly other common law countries.

Departing from Precedent

1. Distinguishing The Case

   • Must distinguish the case on its facts.

   • A case can be distinguished because the material facts are different or because the legal issues are different.

   • A mere difference in facts is not sufficient to distinguish a case, as every case will have different facts.

   • If there is a difference in material facts, the case can be distinguished.

   • Where a court reaches the decision that it is not relevant to the case before it.

   • The effect of distinguishing a case from earlier precedent is that the court is not bound to follow it.

   • However, the precedent still stands and can be followed by other subsequent courts where appropriate.

2. Overrule Earlier Decision

   • Overrule the earlier decision as bad law.

   • The precedent is no longer valid or applicable.

   • A court can overrule the earlier decision of a lower court where it is of the opinion that the earlier decision was decided erroneously.

   • The effect of overruling a decision does not affect the parties to the original decision.

   • It provides that the decision is not to be followed in subsequent cases.

3. Per Incuriam

   • If the previous decision was Per Incuriam it is not binding.

   • This is where a court might have reached its decision in ignorance of a binding authority or a relevant statute.

   • Reaching a decision without considering or taking into account a relevant law or precedent

   • It does not establish a binding precedent

   • Later courts are not bound to follow it.

4. Sub Silentio

   • Where it appears that a court decided a point without it being specifically argued or mentioned in the judgment.

5. Compelling Reasons

   • The Supreme Court can divert from the principle of stare decisis in exceptional circumstances.

   • Court of Appeal can divert from the principle of stare decisis in the interests of justice.

   • High Court can divert from the principle of stare decisis where there are substantial reasons for doing so.