Sources of Law- Case Law PDF

4. Sources of Law II: Case Law English Legal System Concentrate: Law Revision and Study Guide (2nd edn) Mark Thomas and Claire McGourlay p. 85 4. Sources of Law II: Case Law Mark Thomas, Senior Lecturer, Nottingham Trent University, and...

4. Sources of Law II: Case Law English Legal System Concentrate: Law Revision and Study Guide (2nd edn) Mark Thomas and Claire McGourlay p. 85 4. Sources of Law II: Case Law Mark Thomas, Senior Lecturer, Nottingham Trent University, and Claire McGourlay, Professor of Law, the University of Manchester https://doi.org/10.1093/he/9780198855026.003.0004 Published in print: 06 August 2020 Published online: September 2020 Abstract Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter focuses on case law, a major source of law providing for the interpretation of statutes and the application of law to particular circumstances. Case law, also known as the common law, is a set of judge-made rules that have either a binding or persuasive effect on future cases. Judge-made means that a member of the judiciary has decided a case in a certain way, which has led to the development of that particular piece of law. Certain courts are obliged to follow previous judgments, whereas other can ignore them due to their seniority. Indeed, the doctrine of precedent denotes a system of case law—binding or not—that a lower court may or may not have to follow. Whether precedent is binding is dependent on whether there is a statement of law, as opposed to fact, certain reasoning for that decision (known as ratio decidendi), and the decision of a superior court. Keywords: case law, common law, judge-made rules, judgments, precedent, ratio decidendi Key facts Case law, also known as the common law, is a set of judge-made rules that have either a binding or persuasive effect on future cases. Whether precedent is binding is dependent on whether there is a statement of law, as opposed to fact, certain reasoning for that decision (known as ratio decidendi), and the decision of a superior court. Certain courts are obliged to follow previous judgments, whereas others can ignore them due to their seniority. Judges act in a quasi-law-making capacity when developing judicial precedent. Page 1 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law p. 86 Chapter overview Precedent in England and Wales The common law In Chapter 3 we spoke about the primary source of law, namely legislation. As a result of the doctrine of parliamentary supremacy, legislation is the superior source of law. However, England and Wales collectively are known as a common law society. Historically, the common law represented the law that was ‘common’ across England. In more modern terms, however, the common law is another way of speaking of case law and judicial precedent. Despite the enactment of legislation, case law is a major source of law providing for the interpretation of statutes and the application of law to particular circumstances. This chapter focuses on the meaning and operation of judicial precedent. Page 2 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law p. 87 The common law: an introduction An essential aspect of our legal system is the common law. Unfortunately, the phrase ‘common law’ has many different potential meanings: a common law system, compared with a civil law system; common law principles, compared with equitable principles; common law as case law. Common law vs civil law The first distinction that must be made is that of a common law system compared with a civil law system. Civil law is a European concept, developed from the Romano-Germanic legal systems, and can best be described as a system of rules that does not involve binding case law. Instead, a civil system adopts the use of ‘codes’ as a statement of law, with little influence from case law and little concept of precedent. Countries with civil law jurisdictions include states such as France and Germany. France is a particularly good example of a civil code, given that the law is coded almost to its entirety, whereas other countries such as the USA, operate a hybrid system with binding case law working alongside a code, namely the US Constitution (1789), which incorporates the US Bill of Rights (1789). Common law vs equity A frequent debate that is had by academics is the distinction between the common law and equity. Equity, itself, is a source of law; however, it is not a part of the common law. The principle of equity developed as a result of the harshness of the common law and its operation in fifteenth-century England. The Court of Chancery was established in 1474 as an entity distinct from the King’s court. The Court of Chancery determined cases in accordance with the principles of natural justice and fairness. This became known as the law of equity, with rights and remedies available to the Court of Chancery that were not available in the King’s common law courts. Nowadays, as a result of the Supreme Court of Judicature Acts 1873 and 1875, the operation and administration of the common law and equity is fused; however, it remains essential to distinguish the two. For more detail on the history of equity, and its fusion with the common law, see Iain p. 88 McDonald and Anne Street, Equity and Trusts Concentrate (6th edn, Oxford University Press 2018). ↵ Looking for extra marks? When discussing the development of equity, make sure you add plenty of detail and examples to your argument. For example, when discussing the rights and remedies available to the Court of Chancery but not the common law courts, discuss some of the equitable maxims, such as, ‘He who comes to equity must come with clean hands’ and ‘Equity will not suffer a wrong to be without a Page 3 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 4. Sources of Law II: Case Law remedy.’ On that last point, consider the equitable remedies that are available to an individual, namely injunctions or an order for specific performance. These examples will show the examiner that you are aware of a greater level of detail than that which is necessarily required of you. Common law as case law The final understanding of the common law, for our purposes, is that the common law refers to case law, i.e. law developed by judges through legal decisions. This is our focus on the term ‘common law’ in this chapter, which we shall proceed to discuss now. Case law: general principles Before proceeding into the meaning and operation of precedent, it is first useful to explain some of the core principles relevant to case law as a source of law. Judge-made law The first principle to exemplify is that the common law is judge-made. This means that a member of the judiciary has decided a case in a certain way, which has led to the development of that particular piece of law. The decisions of judges are known as judgments and, dependent on the level of authority, the judgment may be binding or persuasive. Both of these terms will be explored later in the chapter. Revision tip A legal decision made by a judge is spelled ‘judgment’ without an ‘e’ after the ‘g’. This is a very common mistake, even amongst final year students. Ensure that you know the difference between judgment and judgement. Judgment—a legal decision made by a judge. It is used specifically in relation to legal proceedings. Judgement—when one passes judgement or opinion on another person. It is used outside of legal proceedings. England remains the oldest common law jurisdiction in the world. Other common law jurisdictions include the USA and Australia. As an example of the operation of the common law in England and Wales, although the majority of criminal offences are now contained in statutory form, the offence of murder remains a common law concept. Defined famously by Sir Edward Coke CJ in 1628 (and subsequently updated to Page 4 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law comply with modern usage) as ‘The unlawful killing of a human being under the Queen’s Peace, with malice aforethought, express or implied’, this statement of law continues to operate in twenty-first- century England and Wales. Forms of judgments There are three forms of judgments that you must be aware of. Table 4.1 details these types of p. 89 judgments. ↵ Table 4.1 Forms of judgments Judgment Meaning Unanimous A unanimous judgment means that the court reached its decision in complete agreement. Majority A majority judgment means that the court could not reach a unanimous decision but could reach a majority, e.g. two to one in the Court of Appeal or three to two in the Supreme Court. Dissenting A dissenting judgment means the decision of the judge who was not present in the majority. This judgment will explain why the judge disagrees with the majority and may be persuasive in later cases to show a differing approach that may be adopted in the future. Law reporting and case citations As part of your studies, you will encounter many different cases from many different sources. It is essential that you understand what the law reports of England and Wales are and what a case citation means. Should you find an authority that does not conform with the list below, we advise you to refer to www.legalabbrevs.cardiff.ac.uk. This website, set up by Cardiff University, contains a full database of most legal reports in the world. The useful search function makes searching for abbreviations an easy task. Hierarchy of law reports According to Practice Direction (Citation of Authorities) (2012), there is a rigid hierarchy of law reports that must be followed by lawyers in practice (see Figure 4.1). It is advised that you understand this hierarchy and use it when writing any pieces of coursework and if you ever take up mooting. Page 5 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 4. Sources of Law II: Case Law Figure 4.1 Hierarchy of law reports We shall now explain what each of these abbreviations mean. The Law Reports (Incorporated Council) These are the most senior and authoritative of the law journals. Each report published by the Council is first checked and confirmed as accurate by the judge who delivered the judgment. Table 4.2 details the Incorporated Council’s Official Law Reports. Table 4.2 The Official Law Reports Abbreviation Meaning AC Law Reports, Appeal Cases QB Law Reports, Queen’s Bench Ch Law Reports, Chancery Division Fam Law Reports, Family Division Please note the following: Page 6 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law The Appeal Cases Report does not cover all appeal court decisions. It only reports cases from the House of Lords, now the Supreme Court, and the Judicial Committee of the Privy Council. The Queen’s Bench Report is different from the Queen’s Bench Division (QBD) in that the reports of the Queen’s Bench do not simply cover the QBD. More commonly, they cover judgments from the Court of Appeal. p. 90 Where the Monarch is male, the report will change from the Queen’s Bench, as it has been since 1952, to the King’s Bench (KB). The Weekly Law Reports and the All England Law Reports The Weekly Law Reports (WLR) are a part of the publication of the Incorporated Council; however, they are second preference to the Official Law Reports. The WLR are generally published weekly but there may be occasions where a Report is omitted. The All England Law Reports (All ER) are published by Butterworths/ Lexis Nexis and operate on a similar basis to the WLR. Where a case is reported in both the WLR and the All ER, either may be cited. Other specialist reports These reports focus on the more specialized and narrow areas of law that the more senior law reports do p. 91 not consider important enough. Table 4.3 details some of the many specialist reports. ↵ Table 4.3 Other specialist reports Abbreviation Meaning Cr App R Criminal Appeal Reports Crim LR Criminal Law Review FLR Family Law Review FCR Family Court Reporter HRLR Human Rights Law Reports UKHRR United Kingdom Human Rights Reports Lloyd’s Rep Med Lloyd’s Law Reports Medical BMLR Butterworths Medico-Legal Reports JP Justice of the Peace Reports Page 7 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Other reports There are a number of reports that are placed towards the bottom of the hierarchy and are generally covered by newspapers and journals. Most prominently are the Times Law Reports, which are generally published on a daily basis. These reports have the advantage that they are produced normally within days of when a judgment was handed down. The Independent has recently begun its own law reporting service; however, that is of less prominence than the Times Law Reports. Other journals that report cases quickly are the Solicitors Journal, the New Law Journal, and the Archbold Review (formerly the Archbold News). Unreported cases There are a number of cases that go unreported. Since 11 January 2001, all cases have been prescribed what is known as a neutral citation (see next section); however, prior to this a case was simply reported by its name, the year of the case, followed by ‘unreported’ (e.g. R v Haider, 22 March 1985 (unreported) for the offence of handling stolen goods). Such citation was not helpful for a lawyer seeking to rely on a case and it resulted in lawyers relying upon transcripts of judgments, given that no law report was available. BAILII (The British and Irish Legal Information Institute) is a private company that operates the website www.bailii.org and provides a comprehensive database of British and Irish cases. The cases are the transcripts of cases, as opposed to their reports (if they have one) and are useful where a p. 92 case is unreported. ↵ Neutral citations From 11 January 2001 the neutral citation was introduced by way of Practice Direction (Judgments: Form and Citation) (2001). The purpose of the neutral citation was to make it easier for those reading and researching case law to find a particular authority, especially online. It was originally restricted to the Court of Appeal and the Divisional Court but was later extended to the other divisions of the High Court, the Privy Council, and the House of Lords (now the Supreme Court). Table 4.4 details the most common neutral citations you will encounter. Table 4.4 Neutral citations Abbreviation Meaning UKSC United Kingdom Supreme Court UKHL United Kingdom House of Lords EWCA Crim England and Wales Court of Appeal, Criminal Division EWCA Civ England and Wales Court of Appeal, Civil Division EWHC (Admin) England and Wales High Court (Administrative Court) Page 8 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 4. Sources of Law II: Case Law Abbreviation Meaning EWHC (Fam) England and Wales High Court (Family Division) EWHC (Ch) England and Wales High Court (Chancery Division) EWHC (QB) England and Wales High Court (Queen’s Bench Division) Do not be confused, therefore, if you see a case before 2001 without a neutral citation. This merely reflects the change in practice since the Practice Direction. You may read a neutral citation and wonder what exactly it means. Table 4.5 details how to read a neutral citation. Table 4.5 How to read neutral citations Hunter Kane Ltd v Watkins EWHC 186 (Ch) Components Meaning Hunter Kane Ltd These are the parties involved in the case. In the majority of cases, the first party listed is the and Watkins ‘claimant’ and the second, the ‘defendant’. In an appeal, the first party listed would be the ‘appellant’, whilst the second party would be the ‘respondent’. These roles may switch as/if the case proceeds through the various courts. The date of the judgment EWHC The court where the case was heard; in this case, the High Court of Justice of England and Wales 186 The case number (i.e. the number at which the case was heard in the High Court in that year) (Ch) This is the Division of the court in which the case was heard. ‘Ch’ refers to the Chancery Division of the High Court. Not all courts have divisions. Spoken as: Hunter Kane Limited and Watkins, the 186th case to be heard in the High Court of Justice for England and Wales, Chancery Division, for the year 2003. vs (2016) When reading cases, you may come across a different use of punctuation for different cases. For example, you may see the following: R v Thomas and R v Thomas (2016). Both cases are fictitious but demonstrate a key feature of case law in England and Wales. The majority of cases now firmly use square brackets, with parentheses (round brackets) being a thing of the past except in a small minority of law reports; however, it remains essential that you understand the distinction. Page 9 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law The use of square brackets——indicates that the date of the citation is an essential aspect of the citation (i.e. you require the date to find the case). By way of example, should you wish to find Hindle Gears Ltd v McGinty ICR 111, you would need to find the 1985 volume of the Industrial p. 93 Court Reports and turn to page 111. You would not be able to find this case without the year. The use of parentheses—(2016)—indicates that the date is not an essential aspect of the citation (i.e. the date is not necessary to find the case). In these circumstances, the case citation will have a volume number which allows an individual to trace the judgment. By way of example, should you wish to find Hindle Gears Ltd v McGinty (1984) 81 LSG 3254, you would only need to find the 81st volume of the Law Society’s Gazette and turn to page 3254. You can find the case without the year. In this regard, the law report and its respective volume number is essential! By way of example, the Criminal Appeal Reports (Cr App R) and the Butterworths Medico-Legal Reports (BMLR) are both law reports that make use of parentheses as opposed to square brackets. Preference should always be given to the square brackets, given that they designate the year of the particular law report. It is often the case that where a year is given in parentheses, that is likely to be the year that the judgment was delivered by the court, whereas the square brackets denote the year of the law report. Naturally, there will be a time lapse between the judgment date and the publication of the law report. This distinction is why you see the same case containing different citations with different years; for example, Hindle Gears Ltd v McGinty ICR 111; (1984) 81 LSG 3254. p. 94 Party names (criminal cases) As part of your studies, you will come across many different cases, all of which feature different parties. You therefore need to appreciate these different party names and their meanings (see Table 4.6). Table 4.6 Party names in criminal proceedings Party Meaning name R When a criminal case is reported, it is cited as ‘R v Thomas’. The ‘R’ represents the reigning monarch, given that criminal cases are brought by the state (in the name of the Monarch) against an accused. The meaning of ‘R’ is dependent on whom the current monarch is: ‘Regina’ (pronounced ‘Rejyna’)—meaning ‘the Queen’, or ‘Rex’— meaning ‘the King’. When said orally, ‘R’ becomes ‘the Crown’, as opposed to the pirate version of ‘argh’. DPP Many criminal cases are brought by the Director of Public Prosecutions; for example, a prosecution appeal by way of case stated from the magistrates’ court to the Divisional Court would be reported as ‘DPP v Thomas’. AG The Attorney General may be a named party to a case in a number of circumstances. One example is where the Attorney General refers to the Court of Appeal sentences which he/she considers to be unduly lenient in line with s36 of the Criminal Justice Act 1988. These cases will be reported as an ‘Attorney General Reference’ and will feature a reference number for the year referred, e.g. AG’s Reference No. 125 of 2004 (2005). Page 10 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law It may be the case that the name of a private person will appear in a case citation (e.g. Thomas v McGourlay). Many students confuse this as being a civil case, given that the citation does not feature one of the above party names. However, all private persons have the ability to bring a private prosecution against an individual under s6(1) of the Prosecution of Offences Act 1985. This system is most commonly used by the RSPCA in prosecuting offences for cruelty to animals. Party names (civil cases) In the civil courts, however, the individual who brings the claim against the defendant is known as the claimant. Prior to the Civil Procedure Rules (CPR) 1998, the claimant was known as the plaintiff. Another example of a civil case name could be Re Thomas (No. 2) [fictitious]. ‘Re’ (pronounced ‘ree’) translates to ‘about something’ and when said orally means ‘in the matter of’ or ‘in relation to’. Some older cases will be reported as Ex parte Thomas [fictitious]. ‘Ex parte’ simply means ‘on the application of’ and refers to cases where an application is made to the court without the presence of the other party. Following the Civil Procedure Rules 1998, such actions are now referred to as being ‘without notice’. p. 95 ↵ When a civil case is reported, it is cited by the names of the parties involved in the dispute, e.g. Thomas v McGourlay. Like its criminal counterpart, the ‘v’ in the citation is said orally as either ‘and’ or ‘against’. Citing cases Lawyers like to be specific. It is therefore essential that you understand how to cite cases and what the citations actually mean. Figure 4.2 gives an example that will help you understand how to cite cases and their meanings. Figure 4.2 Citing cases In Figure 4.2 there are four key elements: 1. Case name—this informs the reader who the parties are and whether the case is a criminal or civil case. In this case, we have ‘R’, demonstrating that we are dealing with a criminal case, and ‘Brown’, which is the surname of the defendant. The ‘v’ in the middle of the party names stands for versus which translates from Latin as ‘against’. When spoken, this would be said as ‘The Crown and Brown’ or ‘The Crown against Brown’. Note that the following is NOT used when citing a case name: R—as ‘Arrr’; ‘Regina’ or ‘Rex’. Page 11 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law V—as ‘Vee’ or ‘Versus’. 2. Citation—this informs the reader where the case was reported, the year of the report, the report volume, and the page number it starts on. In this example, the case would be read aloud as ‘The first volume of the Law Reports, Appeal Cases, for the year 1994 at page 212’. 3. Page reference—this informs the reader of the particular page reference that is being relied upon. Notice that there is no necessity to write ‘p. 215’ or ‘page 215’. Often you see the use of square brackets in a citation, for example ‘’. This designates ‘paragraph 16’ of the judgment, meaning that you need not write ‘para’ or ‘paragraph’. 4. Judge name—this informs the reader of the name of the judge who provided the particular statement that is being relied upon. Often you see the phrase ‘per Lord Templeman’ being used. Although such a phrasing is perfectly acceptable, it is a part of the old legalese that modern lawyers wish to avoid. As such, according to the Oxford University Standard for the Citation of Legal Authorities (OSCOLA) you are advised to place the judge’s name in parentheses as opposed to using ‘per’. p. 96 Precedent—the principles The doctrine of precedent denotes a system of case law, binding or not, that a lower court may or may not have to follow. When considering precedents, therefore, we must understand the general principles behind such a doctrine before then observing its application and operation. For a detailed and historical account of precedent, see Cross and Harris, Precedent in English Law (4th edn, Oxford University Press 1995). Revision tip Ensure you use the term ‘precedent’ as opposed to ‘precedence’. The latter concerns the establishment of an order of hierarchy or importance, whilst the former concerns the establishment of a principle to be used at a later date to justify similar events. For our purposes, we are concerned with precedents. Stare decisis One of the first concepts to explore is the idea of binding and persuasive precedents. In England and Wales, there is a presumption known as stare decisis (pronounced ‘stare-ay decisis’) which means ‘to stand by decisions’. This presumption exists only in cases of binding authority and does not apply to persuasive authorities. It is important to note at this stage that there is a difference between stare decisis and res judicata; the latter referring to the binding nature of the decision on the parties to that case, as opposed to Page 12 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law other parties. The Latin phrase translates roughly to ‘the matter has been settled’ and refers to situations where the case has now concluded for those parties. Our focus, in this chapter, remains on the principle of stare decisis. A precedent is binding when certain conditions are met. Figure 4.3 outlines these conditions. Figure 4.3 Requirements for a binding authority If any of these elements are missing, the case will be of a persuasive nature only. This means that the lower courts are not bound to follow the precedent, but they may use the precedent to influence their own decision. Statement of law The most basic requirement for a binding precedent is that the particular judgment must be concerned with a statement of law, as opposed to one of fact. Obviously, for a decision to be binding on the instant p. 97 court, the facts of the instant case must be the same or similar to that ↵ of the previous case. Without such similarity, the case could easily be ‘distinguished’ (see ‘To follow or not to follow … that is the question’ later in this chapter on avoiding binding precedent). The statement of law itself can be divided into the legal decision reached in the given case (the ratio decidendi) and other statements of law made (the obiter dictum). The following are the key terms we shall now consider: ratio decidendi (plural: rationes decidendi); obiter dictum (plural: obiter dicta). Ratio decidendi The ratio decidendi, often abbreviated to ‘the ratio’, is best defined as ‘the reason for the decision’. The ratio informs the lower courts of the statement of law that is to be followed. Any statement that is not part of the ratio is called obiter dicta, often abbreviated to ‘the obiter’, which is best defined as ‘other things said’. Page 13 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Revision tip It is often difficult for students to ‘find’ the ratio of a given case where they are reading the judgment in full. This is because the judge delivering judgment will not declare ‘The ratio is …’ and the decision may have numerous judgments with numerous apparent rationes. The important point to remember is that the ratio is not concerned with the outcome or the decision itself (e.g. guilty or not guilty) but, rather, it is concerned with the reasons for the decision. You can often find the reasoning by observing how the court has applied the law to the material facts in the case. Obiter dictum As opposed to the ratio, which forms the key element of a binding precedent, the obiter dictum will not act as a binding statement of law. The obiter of a case may include examples given by the judge, hypothetical p. 98 scenarios, discussion of broader principles etc. Whilst such statements ↵ may not be binding points of law, obiter dicta may still act as very persuasive authority for a future case where a similar legal issue has arisen. Often the obiter dictum from a previous case is cited by counsel in the hope that the court will follow those other things said and apply the obiter as part of their reasoning—thus creating a ratio. Superior court In order for a decision to act as a binding precedent, the judgment must be delivered by a superior court to the court where the present case is being heard. The court structure was considered in more detail in Chapter 2; however, for present purposes it is important to appreciate the two key definitions shown in Table 4.7. It will be helpful to refer back to the diagram in the chapter overview at this stage. Further to this, a court is never bound by an inferior court (i.e. a court on the lower level of the hierarchy). For example, the Court of Appeal will never be bound by the Crown Court. We shall consider each court and the operation of precedent on that court in ‘Precedent—the operation’ below. Table 4.7 Key definitions for binding precedent Concept Meaning Example Vertical stare All courts are bound by their superiors (i.e. The Court of Appeal is bound by the decisions of the decisis the court that sits above them in the Supreme Court. hierarchy). Horizontal Certain courts are generally bound by their The Court of Appeal is bound by its own previous stare decisis own previous decisions. decisions unless it falls within a recognized exception (see ‘Court structure’ in ‘Precedent—the operation’ later). Page 14 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Each of these elements when added together amounts to a binding precedent. If one element is absent, the authority is not binding but, rather, is persuasive. Table 4.8 will help bring all of the information together on this topic. Table 4.8 Binding vs persuasive precedent Binding Persuasive The judgment provided a statement of law on the same or The judgment provided a statement of law on dissimilar similar facts as the instant case. facts. The judgment provided a statement of facts on the same, similar, or dissimilar facts. The judgment provided a ratio for the decision. The judgment provided merely obiter dicta statements. The judgment was delivered by a court more senior to that of The judgment was delivered by a court less senior to that the present court. of the present court. It is necessary to appreciate that these categories are not mutually exclusive. For example, a decision may be persuasive only if it was heard in an inferior court but still provided a statement of law and a ratio for its decision. Likewise, a judgment may have been delivered in a superior court; however, unless that judgment includes a statement of law and reasoning for such a statement, it too will only amount to a persuasive authority. Other sources of persuasive law It is appropriate at this stage to discuss briefly the other sources that may be of a persuasive nature to any p. 99 court. Table 4.9 details these other sources. ↵ Table 4.9 Other persuasive authorities Authority Level of persuasion Dissenting/ Not all judges in a case will agree! Where a decision is not unanimous, the judge who disagrees with the minority majority is said to be ‘dissenting’ or ‘in the minority’. Whilst these judges may still make a statement judgments which forms its own ratio decidendi, it will not amount to binding law, given that it is a minority statement. Minority judgments remain persuasive however, especially on appeals on contentious points of law. Decisions from Ultimately it depends on the level of court and the origin. Some Commonwealth countries, such as other countries Australia, may have a very persuasive effect on an English case. Likewise, some American authorities, as a common law system, have been persuasive in English cases (e.g. A v Secretary of State for the Home Department (2005)). Page 15 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Authority Level of persuasion Academic As discussed in Chapter 3 in relation to statutory interpretation, academic commentary in the form of commentary textbooks and journal articles may act as persuasive authority to an English court. The undergraduate textbooks are largely ignored; however, certain key texts such as Treitel on The Law of Contract and Smith and Hogan’s Criminal Law are repeatedly cited in the appellate courts, even the most senior of those courts. Books of These differ from textbooks in that over time they have become accepted as an expert statement of the authority law in a particular area. For example, Blackstone’s Commentaries on the Law of England and Coke’s Institutes of the Laws of England. Looking for extra marks? Don’t forget about these other sources of law. They will be useful when answering problem questions or essay questions. These other sources vary in their persuasiveness and it is important to demonstrate this knowledge in a piece of work. Precedent—the operation Now that we understand the general principles behind the doctrine of precedent, it is essential that we put these principles into context and discuss the operation of precedent. This section reconsiders the court structure (from Chapter 2) but in much greater detail, dealing with each court in the hierarchy individually. The section then goes on to discuss how a lower court can ‘avoid’ a binding precedent from a superior court. p. 100 Court structure In conjunction with Table 4.10, the diagram in the chapter overview should be consulted at this stage. In addition, it is advised that you revisit Chapter 2 and consider the overview of the court structure there. The key terms used above in ‘Precedent—the principles’ (vertical and horizontal stare decisis) will be used when discussing each key court. The general rule from Broome v Cassell & Co. (1971) is quite simple: senior courts bind inferior courts. As Lord Hailsham expressed: ‘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 lower tier … to accept loyally the decisions of the higher tiers.’ Page 16 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Table 4.10 Checklist of precedent Court Vertical stare decisis Horizontal stare decisis Court of Justice of the European Union (whilst the UK remains in the ✓ ✗ EU) Supreme Court (Formerly House of Lords) ✓ ✓/✗ Privy Council (Judicial Committee) ✓/✗ ✗ European Court of Human Rights ✗ ✗ Court of Appeal (Civil Division) ✓ ✓/✗ Court of Appeal (Criminal Division) ✓ ✓/✗ Divisional Courts ✓ ✓ High Court of Justice ✓ ✗ Crown Court ✗ ✗ Magistrates’ court; Family Court; County Court ✗ ✗ Court of Justice of the European Union As a result of s3(1) European Communities Act (ECA) 1972, UK courts (and other courts within the Union) are bound by decisions of the Court of Justice of the European Union (CJEU) on matters of EU Law. By Article 234 Treaty of Rome 1957, the UK courts may refer a point of European law to the CJEU for interpretation. The CJEU is not bound by its own previous decisions, but the court is likely to follow them. In December 2019, Prime Minister Boris Johnson announced that the Withdrawal Agreement Bill, dealing p. 101 with the exit of the ↵ UK from the EU, will involve a provision that the lower courts will be able to ‘roll back’ EU laws after Brexit. It remains to be seen how this will work, but it appears that it will not simply be the Court of Appeal or Supreme Court that will be able to ignore and overrule CJEU judgments; the lower courts may also have this ability. This is of a particular concern in relation to employment rights. Supreme Court (formerly House of Lords) The Supreme Court (and all previous decisions of the House of Lords unless later overruled) binds all lower courts. Generally, the Supreme Court is bound by its own previous decisions. Indeed, prior to 1966, the House of Lords was bound absolutely to its own previous decisions. This was made clear by the Earl of Halsbury LC in London Street Tramways Co. Ltd v London County Council (1898), where it was stated that: Page 17 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided. However, as a result of Practice Statement (Judicial Precedent) (1966) issued by Lord Gardiner LC, the House of Lords could depart from a previous decision where it appeared ‘right to do so’. However, this power was to be used ‘sparingly’. Following the creation of the Supreme Court in October 2009, it was questioned whether the Practice Statement applied equally to that Court or whether it was applicable only to the former House of Lords. In Austin v Mayor and Burgesses of the LBC (2010), Lord Hope in the Supreme Court identified that it was not ‘necessary to re-issue the Practice Statement as a fresh statement of practice in the Court’s own name. This is because it has as much effect in that Court as it did before the Appellate Committee in the House of Lords.’ Austin, therefore, clarified that the Supreme Court will consider itself bound in the same way as the House of Lords was and may depart from previous decisions in the same circumstances also. On the Supreme Court directing the lower courts to follow them, see R v p. 102 Barton (2020) in ‘Key cases’. ↵ British Railways Board v Herrington AC 877 (HL) FACTS: A young boy was electrocuted, suffering severe burns, when he ventured from a play park onto a nearby live railway line. Although the railway lines were surrounded by a high fence, a small part of the fence had been pushed down, resulting in a gap in the fence used frequently as a shortcut. The defendant knew of the gap in the fence and failed to rectify it. HELD: The House of Lords had to decide whether to follow their previous authority of Addie v Dumbreck (1929), which ruled that an individual does not owe a duty of care to trespassers. The House of Lords departed from this previous decision, relying on the Practice Statement finding that individuals owe a duty of care to all persons, even trespassers. Other case law examples include the following: R v G & R (2003) overruled MPC v Caldwell (1982) in relation to the test of recklessness in criminal law; Howe and Bannister (1987) overruled DPP for NI v Lynch (1975) in relation to the availability of the defence of duress to an accessory to murder; Pepper (Inspector of Taxes) v Hart (1993) overruled Davis v Johnson (1978) in relation to the use of Hansard as an aid to statutory interpretation; Page 18 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Hall v Simons (2000) overruled Rondel v Worsley (1969) in relation to the immunity of court advocates from being sued for negligent performance in court. However, please note that the House of Lords did not refer to the Practice Statement when departing from Rondel. This may indicate that use of the Practice Statement is not necessary to depart from a previous decision. Privy Council (Judicial Committee) The binding nature of decisions of the Privy Council on English and Welsh courts has been a matter of some confusion over the years. Following the Supreme Court decision in Willers v Joyce (2016), the position has now been clarified. Lord Neuberger in Willers, explained the following points of precedent: ‘[U]nless there is a decision of a superior court to the contrary effect, a court in England and Wales can normally be expected to follow a decision of the JCPC, but there is no question of it being bound to do so as a matter of precedent’. ‘There is also no doubt that a court should not, at least normally, follow a decision of the JCPC, if it is inconsistent with the decision of a court which is binding’. ‘[T]he members of that panel can, if they think it appropriate, not only decide that the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal, was wrong, but also can expressly direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales.’ Like the CJEU, the Privy Council is not bound by its own previous decisions but is likely to follow them. The main part to take away from Willers is that if the Judicial Committee of the Privy Council consider decisions of the House of Lords, Supreme Court, and Court of Appeal to be wrong, they may direct all domestic courts to treat decisions of the Committee as binding on them and representing the law of England and Wales. To see an example of domestic courts taking favour of Privy Council decisions, see R v James (2006), in which the Court of Appeal followed the Privy Council decision of AG for Jersey v Holley (2005), as opposed to the binding House of Lords decision in R v Smith (Morgan) (2001). The decision in Willers makes sense, given that the composition of that court (i.e. who sits in that court) is identical to that of the Supreme Court. p. 103 European Court of Human Rights Decisions of the European Court of Human Rights (ECtHR) are extremely persuasive authority but do not bind any court in England and Wales, as the domestic courts are only required to ‘take into account’ any decision (s2(1) HRA 1998). See Chapter 5 for a further discussion on s2(1). The ECtHR is not bound by its own previous decisions but is very likely to follow them. Page 19 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Court of Appeal (Civil Division) The Court of Appeal is bound by decisions of the Supreme Court (though Lord Denning is particularly noteworthy for his attempts to circumvent this in the 1970s—see Broome v Cassell & Co. (1971)). The Civil Division binds all lower courts but is only persuasive to the Supreme Court. The Civil Division is generally bound by its own previous decisions (often referred to as the ‘self-binding rule’); however, Young v Bristol Aeroplane Co. Ltd (1944) provided three exceptions to this rule. Young v Bristol Aeroplane Co. Ltd KB 718 (CA) FACTS: This case concerned the payment of workmen’s compensation and whether the claimant was entitled to such compensation. The facts of the case are not relevant; more so, the question for the court was whether they had the ability to depart from a previous Court of Appeal case. HELD: Lord Greene MR held that: the Court of Appeal is generally bound by its own previous decisions, or the decisions of its predecessor, subject to three exceptions: 1. Where there are two conflicting decisions of the Court of Appeal (in that case, it must choose which one to follow). 2. Where the previous decision of the Court of Appeal, even if not expressly overruled, conflicts with a House of Lords (now Supreme Court) decision (in that case, it must follow the superior court). 3. Where its previous decision was made per incuriam (meaning ‘through lack of care’ or without due regard to the relevant law) (in that case, it may create a new precedent). A fourth exception can be said to exist following R (RJM) v Secretary of State for Work and Pensions (2009). In particular, the House of Lords ruled that the Court of Appeal may depart from one of its own previous decisions where the Court considers that the previous decision is inconsistent with a subsequent decision p. 104 of the ECtHR. ↵ Davis v Johnson AC 264 (HL) FACTS: The case concerned a non-molestation order under the Domestic Violence and Matrimonial Proceedings Act 1976. The majority of the court disagreed with previous Court of Appeal decisions on this area of law (one of which was made only a matter of days earlier); Page 20 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 4. Sources of Law II: Case Law however, they were bound to follow it according to Bristol Aeroplane. Lord Denning MR argued that the Court of Appeal ought to have the same power as the House of Lords in departing from an earlier decision of the same court. HELD: The Court of Appeal was wrong to think that it was not bound by its own previous decisions. Lord Diplock concluded that, ‘In my opinion, this House should take this occasion to re-affirm expressly, unequivocably [sic] and unanimously that the rule laid down in the Bristol Aeroplane case … as to stare decisis is still binding on the Court of Appeal.’ Court of Appeal (Criminal Division) The Criminal Division binds all lower courts but is only persuasive to the Supreme Court. The Criminal Division is generally bound by its own previous decisions; however, according to R v Spencer (1985), the Bristol Aeroplane exceptions also apply to the Criminal Division. As a result of R v Taylor (1950) and later R v Gould (1968), the Criminal Division has a wider discretion than its civil counterpart, where ‘the liberty of the individual is at stake’. R v Gould 2 QB 65 (CA) FACTS: The defendant pleaded guilty to bigamy and later attempted to withdraw his guilty plea on the basis that he held a reasonable, but mistaken, belief that his first marriage had been successfully dissolved. HELD: The Court of Appeal had to decide whether to follow their previous decision of R v Wheat (1921). The Court of Appeal found that the Criminal Division held a wider jurisdiction to disapply the precedent of the previous court. Specifically, Diplock LJ went so far as to say that the Court of Appeal is ‘bound to give effect to the law as [they] think it is’. Revision tip When answering a problem question which involves the Court of Appeal potentially departing from a previous decision, don’t forget that the Criminal Division has a much broader scope to depart than their Civil counterpart, given the risk of loss of liberty for the defendant. Page 21 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Divisional Court The Divisional Court binds all lower courts (except the Crown Court—R v Colyer (1974)) but is only persuasive to the Court of Appeal and to the Supreme Court. The Divisional Court is generally bound by its own previous decisions (Huddersfield v Watson (1947)), unless an exception in Young v Bristol Aeroplane Co. Ltd (1944) applies. See also C (A Minor) v DPP (1994) and ex parte Tal (1985). High Court of Justice The High Court is bound by all decisions of the Supreme Court, Court of Appeal, and Divisional Courts. The High Court binds all lower courts but is only persuasive to the superior courts. The High Court is not bound by its previous decisions (Howard de Walden Estates v Aggio (2008)) but previous decisions can be extremely persuasive (Willers v Joyce (2016)). In this respect, one judge in the High Court may not overrule his judicial brother/sister; instead they may only ‘disapprove’ of the judgment and refuse to follow it. This may result in decisions being contradictory, requiring resolution by the Court of Appeal. Crown Court The Crown Court is bound by decisions of the Court of Appeal and the Supreme Court. As noted above, the Crown Court is not bound by decisions of the High Court. The Crown Court binds no court but can act as p. 105 persuasive authority to all courts, albeit slight. The Crown Court is also ↵ not bound by its previous decisions, despite it being a court of record; however, previous decisions can be extremely persuasive (especially where the trial judge is a High Court judge). Magistrates’ court; Family Court; County Court The magistrates’ court, Family Court, and County Court bind no courts and are unlikely to act as persuasive authority. These courts are bound by all superior courts, i.e. Divisional Court, Court of Appeal, and Supreme Court. These courts are also not bound by their own previous decisions and their decisions are unlikely to be persuasive to a future tribunal, given their focus on factual disputes. To follow or not to follow … that is the question Now that you understand which courts are bound to follow the decisions of other courts, it is essential to appreciate the actions that the superior and lower courts must or may take in relation to a precedent. The superior courts The superior courts, when confronted with an appeal, may take numerous avenues to determine the outcome of the case. The actions that may be taken by the superior courts when confronted with a precedent are detailed below: Page 22 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Follow: this means that when presented with an authority from its predecessor, the court can decide to follow that authority. The Supreme Court can decide to follow or depart from a case; whereas the Court of Appeal must ‘follow’ previous Court of Appeal decisions unless the case falls within one of the Bristol Aeroplane exceptions. Affirm: when a superior court has before it an authority that is not binding on them, they may ‘affirm’ or ‘approve’ the authority, which may then result in a binding precedent (subject to the conditions of stare decisis discussed in ‘Precedent—the principles’ earlier). Consider: a superior court may discuss the decision of another case, but may decide not to follow, apply, or affirm it. Depart: this means that the superior court can depart from a decision of their predecessors. As stated previously, the Supreme Court has the right to depart where it considers it ‘right to do so’ but the Court of Appeal may only depart from a previous decision within the exceptions laid out in Bristol Aeroplane. Doubt: a superior court may decide not to depart from or overrule an earlier authority, but may have expressed doubt as to its validity/viability. This may apply where the superior court either does not think it necessary to overrule the authority, or does not have the authority to do so. ‘Disapproving’ is in a similar vein, but this is where the court expressly states that the decision or principle from a particular authority is wrong. Overrule: this means that the superior court decides that the previous precedent is incorrect and changes the precedent. The effect of overruling is to create a new binding precedent to be followed. p. 106 Reverse: more often than not, this phrase is adopted when speaking of the factual matters involved in the case. For example, the Court of Appeal may reverse the decision of the High Court in relation to a personal injury matter. Quash: this phrase is more likely to be seen in a criminal law context and means that the decision of the lower court is removed. Normally, one speaks of ‘quashing a conviction’, meaning that an individual is no longer guilty of an offence. Usually, if a conviction is quashed a retrial will be ordered. Looking for extra marks? When answering an essay-style question on binding precedent, don’t forget to consider whether, even if they have the power to do so, a particular court will actually choose to depart from an earlier decision. For instance, the Supreme Court (formerly the House of Lords) is permitted to depart from a previous decision where it considers it ‘right to do so’. However, in practice, the right is rarely exercised, with an estimated thirty cases reported since 1966. Gain extra marks by including this detail and take it one step further by asking the question: ‘Why is it rarely used?’ Page 23 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Revision tip Many students struggle with distinguishing between the concept of overruling a case and reversing a case. Overruling means that the precedent in a previous case (whether it be the same or a different case) is wrong and should not be followed in the future. This is concerned with the precedent itself. Reversing means that the superior court has changed the decision of the lower court in the same case. This is concerned with the decision itself. These two terms are not mutually exclusive as if a decision is overruled, it is likely that the decision of that court is also reversed. The inferior courts Given their inferior status, the avenues open to these courts are not as wide as those available to the superior courts. Superior courts are not bound by their inferiors, thus have no need to find a reason or way to ‘avoid’ the decision. However, there are numerous ways in which a lower court may ‘avoid’ a binding authority from their superiors. The actions available to the inferior courts, including the ability to avoid the authority, are detailed below: Follow: this means that when presented with an authority from its superior, the court must ‘follow’ or ‘apply’ that authority. Distinguish: this means that the court can avoid the binding nature of the precedent by arguing that the instant case is ‘materially different’ in facts to the binding precedent and thus has no application in the instant case. What the court will do instead is use an authority, if one is available, that more closely reflects the instant case on its facts (see, e.g. Balfour v Balfour (1919) and how it was treated in Merritt v Merritt (1970)). p. 107 Judicial law-making—overstepping the mark We considered this topic briefly in Chapter 2 when discussing the interrelation between the legislature and the judiciary. However, it is also pertinent to appreciate that through the doctrine of precedent, judges may act in a quasi-legislative role by creating a binding precedent for the lower courts to follow. Whilst judges may not wish to admit that they ‘make’ law, such conduct is inevitable. In ex parte Evans (2001), Lord Hobhouse explained that: Page 24 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law [t]he common law develops as circumstances change and the balance of legal, social, and economic needs changes. New concepts come into play; new statutes influence the non-statutory law. The strength of the common law is its ability to develop and evolve. All this carries with it the inevitable need to recognize that decisions may change. What was previously thought to be the law is open to challenge and review; if the challenge is successful, a new statement of the law will take the place of the old statement. By way of example, prior to 1991 marital rape was legal in England and Wales before the House of Lords ruled that such a law was abhorrent in modern society and held it to be unlawful (R v R (Marital Rape Exemption) (1991)). In some circumstances this binding precedent will force Parliament’s hand, that will then enact a piece of legislation to deal with this matter. On the other hand, the senior judges have shown restraint in certain circumstances where change is better within the remit of Parliament, as opposed to the courts. For example, the courts have repeatedly ruled that any change to the law on assisted suicide is a matter for Parliament, not for the courts (see R (Nicklinson) v Ministry of Justice (2015) and R (Conway) v Secretary of State for Justice (2018)). Looking for extra marks? When discussing the role of judges as lawmakers, don’t forget that law-making does not need to be a positive act (like in R v R). Law-making may be a passive act also where the judiciary refuse to change the common law on the grounds that it ought to be a change made by Parliament. This statement, in essence, forces Parliament’s hand, as in the case of C v DPP (1995), where the House of Lords refused to change the principle of doli incapax (i.e. that a child between the ages of 10 and 14 cannot generally commit a criminal offence). This led to Parliament enacting s34 Crime and Disorder Act 1998, which abolished this rule. Now all persons over the age of 10 are capable of committing a criminal offence in the eyes of the law. Review of precedent Now that we understand the prominence of the common law and the operation of precedent in our legal system, it is worth briefly highlighting some of the advantages and disadvantages of precedent (see Table p. 108 4.11). ↵ Table 4.11 Advantages and disadvantages of precedent Advantage Explanation Consistency and The operation of precedent ensures that all cases based upon similar facts and law are treated the fairness same. This ensures fairness, justice, and transparency in the legal system. Page 25 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 4. Sources of Law II: Case Law Certainty Lawyers are able to effectively advise their clients as to their thoughts or predictions on the outcome of a particular case, given the established precedent. Modernization Case law has the benefit of being able to develop and modernize to reflect societal norms. Disadvantage Explanation Rigidity The operation of precedent has been criticized for being too rigid—the exceptions to which the Court of Appeal must follow their own previous decisions and is bound by the superior courts is too restrictive. This rigidity may create injustice in a particular case. Slow to change Given that changes to the law by way of precedent may only be made when a particular point of law comes before the courts, the law is often slow to develop and adapt. Many areas of law are in need of reform and clarification, but without a platform to demonstrate this the law remains outdated. Key cases Case Facts Principles Young v Bristol The question for the court was The court may depart in three circumstances: Aeroplane Co. whether the Court of Appeal had (i) where there are two conflicting decisions of the Ltd KB the ability to depart from a previous Court of Appeal; 718 (CA) Court of Appeal case. (ii) where the previous decision of the Court of Appeal, even if not expressly overruled, conflicts with a House of Lords (now Supreme Court) decision; (iii) where its previous decision was made per incuriam. R v Barton The defendant had exploited a The Court of Appeal ruled that where the Supreme Court EWCA number of care home residents into directs that the lower courts are bound by its decision, Crim 575 (CA) gifting him large sums of money. On even though strictly obiter dicta, the lower courts must appeal he alleged that the Court of be bound. The CA accepted that ordinary rules of Appeal were not bound by a precedent were slightly modified as a result. This decision of the Supreme Court principle would only apply where it was the unanimous which was merely obiter dicta. view of the Supreme Court that it should bind lower courts. R v Gould The defendant wished to withdraw ‘If upon due consideration we were to be of the opinion 2 QB 65 a guilty plea of bigamy. The Crown that the law had been either misapplied or (CA) Court refused to allow the misunderstood in an earlier decision … we should be withdrawal on the grounds of a entitled to depart from the view as to the law expressed Court of Appeal decision (R v Wheat Page 26 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law Case Facts Principles (1921)). The question was whether in the earlier decision notwithstanding that the case the Court could depart from that could not be brought within any of the exceptions laid case. down in Young v Bristol Aeroplane Co. Ltd.’ (Lord Diplock) p. 109 Key debates Topic The exceptions in Bristol Aeroplane Academic Terence Prime and Gary Scanlan Viewpoint Argue that the Court of Appeal are developing a fourth exception to Bristol Aeroplane and are declining to follow a case where it was ‘manifestly wrong’. Source Terence Prime and Gary Scanlan, ‘Stare Decisis and the Court of Appeal: Judicial Confusion and Judicial Reform’ (2004) 23 Civil Justice Quarterly 212, 220 Topic Distinguishing cases Academic Bruce Harris Viewpoint Argues that distinguishing need not be restricted to factual differences, but can also include situations where ‘societal factual circumstances have changed since [the precedent] was originally decided’. Source Bruce Harris, ‘Final Appellate Courts Overruling their own “Wrong” Precedents: The Ongoing Search for Principle’ (2002) 118 Law Quarterly Review 408, 411 Topic Status of the judge re stare decisis Academic Andrew Ashworth Viewpoint Argues that the status of the judge should be ‘irrelevant’ to whether a non-binding precedent is persuasive to a court. Source Andrew Ashworth, ‘The Binding Effect of Crown Court Decisions’ (1980) Crim LR 402 Page 27 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025  4. Sources of Law II: Case Law p. 110 Exam questions Essay question ‘The doctrine of precedent is essential to the English common law system; however, the development of the Bristol Aeroplane exceptions is making a mockery of the principle of stare decisis.’ Critically discuss this statement. Problem question The Supreme Court has just released a brand-new criminal judgment, R v Thomas UKSC 12 (fictitious). You are a criminal barrister and have been asked to present a paper on the effects of this case on all other courts. Describe the effect the Supreme Court’s decision will have on all courts, the manner by which the case is likely to be reported, and whether the decision can be avoided by any courts that disagree with it. Would your answer differ if the judgment was delivered by the Court of Appeal (Criminal Division)? If so, how? Online resources This chapter is accompanied by a selection of online resources to help you with this topic, including: outline answers to the exam questions multiple-choice questions. © Oxford University Press 2020 Related Links Visit the online resources for this title Test yourself: Multiple choice questions with instant feedback Find This Title In the OUP print catalogue Page 28 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025 4. Sources of Law II: Case Law Page 29 of 29 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 08 January 2025