Doctrine of precedent and stare decisis

DOCTRINE OF PRECEDENT AND STARE DECISIS

What do you understand by precedent in the English legal system?

It is a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts.

What are the advantages and disadvantages of having a legal system based upon the doctrine of precedent instead of having a legal system based upon codified law?

Advantages
1. Provides certainty in law.
2. Judges have clear cases to follow.
3. Lower courts follow higher courts.
4. It also leads to an orderly development of the law. Only the Lords can overrule it’s previous decisions and the hierarchy of the courts ensures that lower courts follow higher courts.
5. Case law of real situations – viable statute law and therefore rule and principles are derived from everyday life. This means that it should work effectively and be intelligible.
6. The law can develop. There is flexibility especially since 1966.
7. Saves time – avoids unnecessary litigation.

Disadvantages:
1. There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear.
2. Case law can only change if a real case is brought. This requires someone to have the money (or the access to legal aid) to bring such a case. To take a case to the Lords is highly expensive.
3. Bad decisions are perpetuated since lower courts must follow higher courts (e.g. Anns) Very few cases get to the Lords which is the only court which can overrule one of it’s own previous decisions. Not until 1991 (n R v R) was rape in marriage accepted as a crime.
4. Restricts the development of the law. It leads to distinguishing and hair splitting decisions which rules the law unnecessarily.
5. It is difficult to distinguish between ratio and obiter e.g. Donoghue v Stephenson.
6. Too much distinguishing or use of Practice Statement damages certainty.

What does a court have to do if it has to decide on a case which appears to be similar to an earlier decision?

How is stare decisis different from res judicata?

Stare decisis is basically the principle that a precedent on a certain issue of law decided by the highest court in the jurisdiction should not be overturned unless there is some compelling reason to do so.
Res judicata is the principle that once a claim has been litigated and decided in court, that claim cannot be litigated again by the plaintiff in a subsequent lawsuit and the outcome is deemed final.
The key is that stare decisis binds everyone in every court in the jurisdiction on a general matter of law, while res judicata is only relevant to a particular party in a particular lawsuit on a particular claim.

What role does the House of Lords (in its judicial function) play in the English system of precedent?

Until 2009 the House of Lords served as the court of last resort for most instances of UK law.
Since 1 October 2009 this role is now held by the newly created Supreme Court of the United Kingdom.
Practice Statement, but it has been seldom applied by the House of Lords, usually only as a last resort. As of 2005, the House of Lords has rejected its past decisions no more than 20 times. They are reluctant to use it because they fear to introduce uncertainty into the law.

What is the 1966 House of Lords Practice Statement?

Until 1966, the House of Lords in the United Kingdom was bound to follow all of its previous decisions under the principle of stare decisis, even if this created "injustice" and "unduly restrict(s) the proper development of the law".

The Practice Statement 1966 is authority for the House of Lords to depart from their previous decisions.
It does not affect the precedential value of cases in lower courts; all other courts that recognise the House of Lords as the court of last resort are still bound by House of Lords decisions.
Before this, the only way a binding precedent could be avoided was to create new legislation on the matter.

Should the Court of Appeal be bound by its own decisions or should it depart more readily from its own previous decisions?

The Court of Appeal is normally bound by its own previous decisions in civil cases as well as those of the House of Lords.
The Court of Appeal can depart from its own decisions in civil cases in the circumstances laid down in Young v Bristol Aeroplane Co. This says it can depart from its earlier own decision if:
(1) made in error
(2) if there are two conflicting earlier decisions, the Court can choose one and override the other
(3) where a decision conflicts with a later decision of the House of Lords.
The Criminal Division of the Court of Appeal is not bound by its previous decisions - it is considered to be more important to be just to the individual than to provide certainty.
DAVIS V JOHNSON

Briefly outline the facts of Davis v Johnson.

The case concerned the Domestic Violence and Matrimonial proceedings Act 1966. The question raised was did the Act protect co-habitees as well as wives?
Denning considered Hansard and said he couldn’t determine the intention of Parliament, and said we should not have to “grope about in the dark”.
In the House of Lords all five Law Lords rebuked him.
Lord Scarman gave two reasons why courts should not look at Parliamentary debates:
1. Unreliable guide to the meaning of what is enacted. Looking at Hansard would lead to confusion rather than give clarity.
2. Counsel are not permitted to refer to Hansard in their argument (this rule has now been abolished)

How does the judgement of Sir George Baker in that case differ from that of Lord Denning?

George Baker:
He said that Young's case was binding on the Court of Appeal but he would like to see a further limited exception to it:
"I would attempt to define the exception thus: 'The court is not bound to follow a previous decision of its own if satisfied that that decision was clearly wrong and cannot stand in the face of the will and intention of Parliament expressed in simple language in a recent statute passed to remedy a serious mischief or abuse, and further adherence to the previous decision must lead to injustice in the particular case and unduly restrict proper development of the law with injustice to others."

Lord Denning :
" On principle, it seems to me that, while this court should regard itself as normally bound by a previous decision of the court, nevertheless it should be at liberty to depart from it if it is convinced that the previous decision was wrong. What is the argument to the contrary? It is said that if an error has been made, this court has no option but to continue the error and leave it to be corrected by the House of Lords. The answer is this: the House of Lords may never have an opportunity to correct the error; and thus it may be perpetuated indefinitely, perhaps forever."

"To my mind, this court should apply similar guidelines to those adopted by the House of Lords in 1966. Whenever it appears to this court that a previous decision was wrong, we should be at liberty to depart from it if we think it right to do so....
Alternatively, in my opinion, we should extend the exceptions in Young v Bristol Aeroplane co. Ltd when it appears to be a proper case to do so."

What did the House of Lords decide? Which position do you favour?

Overruling is where a court in a later case states that the legal rule decided in an earlier case is wrong. It is used to prevent an injustice if the judges feel the first decision was wrong.
This is illustrated in Pepper v Hart (1993) when the House of Lords ruled that Hansard could be consulted in statutory interpretation.
This overrules the earlier decision in Davis v Johnson (1979).
The last method is Reversing, and is when a higher court overturns the decision in a lower Court of Appeal, in the same case. This is again illustrated in Davis v Johnson (1979).

Because of distinguishing, overruling, reversing and persuasive precedents, it is true to say that although judges are bound rigidly to follow decisions made in earlier cases, they do have ways of avoiding it if certain facts comply.