(Question 1) In 2010, Mr Justice peter, a high court judge sitting alone, in deciding a case which has similar material facts to one decided by the Court of Appeal in 2009. Can he decline to be bound by this decision? Discuss.
In England and Wales, the courts operate a rigid doctrine of judicial precedent which has the effect that every court is bound to follow any decision made by a court above it in the hierarchy. This system is based on the Latin maxim of stare decisis which can be defined as stand by what has been decided.
The importance of stare decisis is that, it helps to develop the law in an orderly manner, even though to a certain extent it has handicapped the law. [1] Now the fact is that, the application of the doctrine of stare decisis works very well with the hierarchy of court.
The highest court in England now is Supreme Court, which replaced the Appellate Committee of the House of Lords in early October 2009, below it is Court of Appeal, Divisional Courts, High Court, County Court, Crown Court, and Magistrate Court.
This hierarchy stated that High Court is bound by Divisional Courts, Court of Appeal and Supreme Court and it binds all the inferior Courts. On the question, Mr Justice Peter as a High Court Judge is clearly bound by the earlier decision made by Court of Appeal.
If he can prove that the material facts of the case he is deciding are sufficiently different for him to draw a distinction between the present case and the previous precedent, and then he is not bound by the decision in previous case.
Question 2) What do you think are the strengths and weaknesses of case law as a source of law? Discuss.
The legal system within the United Kingdom were based largely on judge-made law which known as common law or case law. Case law is law developed through Appellate Courts’ decisions of how law applies to facts and whereas the decision is binding in future cases if the material facts in present case is similar with the one in previous case.
The Court’s decision can be cited as precedents in a process known as stare decisis where past decisions of the judges create law for future judges to follow. It is a major source of law, both historically and today. The good thing is that Courts are bound the decision made in the last case that is similar in the material facts of the present case, and will only refuse to follow if the facts are different as requiring different outcomes.
This provides certainty in the legal system, so that if you have one situation that is like others, it should be treating by the Courts in the same way. It also serves the interests of justice, and it would be unjust to reach a different decision in a following case. [2]
However, the advantage of certainty is lost where there are too many cases and they are too confusing. The rules of English case law also provides practicality in decision making because the case law does not derive from a particular theory of law, and does not attempt to deal with hypothetical circumstances. [3]
They are the result of the consideration of real situations which have come before the courts. Furthermore, this system also allows new rules to be established and old rules to be adapted to meet new circumstances and the changing needs of modern society.
Where a precedent is considered to be particularly valuable in its scope can be extended in later cases. Contrarily, where a precedent is sensed to be defective, its scope can be restricted by the method of distinguishing. [4] On the other hand, the existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance, but what if the previous decision is wrongly decided?
In such circumstances, judicial mistakes of the past are perpetuated unless bad decisions happen to come before Supreme Court for reconsideration. [5] In any event, flexibility and certainty are incompatible features of judge-made law. A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place.
The rule of Judicial Precedent also can be rigid and complex. There is a danger that even a well-experienced lawyer may overlook some important rule in any given case as because there is so much law that no one can learn all of it.
Another disadvantage is that this system is slow in growth as because it is depends on litigation for rules to emerge. As litigation tends to be slow and expensive, the body of case-law cannot grow quickly enough to meet modern demands.
Where it is felt that a particular case has long been a precedent operates unfairly, or where the law on an important matter is unclear, it is argued by some that appeals to House of Lords or Supreme Court should be financed at public expense as it is inequitable that the law should be developed or clarified at the expense of private litigants. [6]
