Judicial Precedent is a doctrine of law in which decisions of a higher court are followed or administered in courts lower in the hierarchy in similar cases. If the court that has set a precedent is higher in hierarchy then a court lower in hierarchy should follow it but if the court hat has set the precedent is lower in hierarchy then a court higher in hierarchy can only consider it. Judicial precedent can be categorized into three segments; original precedent, binding precedent and persuasive precedent.
Original precedent is formed in a situation whereby a particular case is the first of its kind. That is, no other case similar to it has ever occurred and so the judgement in the case thereby forms a precedent for other cases to acknowledge.
Binding precedent is a precedent that has been set by a court higher in hierarchy and has to be adhered to by courts lower in hierarchy when making decisions or judgements in a case that is similar to the previous one. The binding precedent can also be called the ratio decidendi of the case. Ratio decidendi is a Latin phrase which means 'reason for deciding'. The ratio decidendi of a case is the main fact or point of the case in which the judge of the case based his judgement or decision upon. The ratio decidendi of any case is binding upon courts which are lower in hierarchy when they are faced with a case that has similar facts with the case that has already been decided upon and courts higher in hierarchy should consider it.
Persuasive precedent is a precedent that has been set by a court lower in hierarchy and so is not binding on courts in hierarchy when faced with a case with similar facts. The higher courts are only meant to consider it but not bound to follow it. Persuasive precedent can also be said to be obiter dictum. Obiter dictum is a Latin phrase which means 'statement by the way'. The plural of obiter dictum is obiter dicta. When a judgement is being passed, many facts and points relevant to the case are stated but not all of them are important or crucial to the case. The non-crucial elements of the case or statements made by the judge are regarded as obiter dicta so they are not binding on courts when dealing with similar cases; they are just persuasive.
Judicial Precedent is normally binding on courts that are lower in hierarchy but earlier on the highest court of appeal, The House of Lords was bound by it's own decisions and could not derail from judgements made earlier by its colleagues on similar cases. This practice was changed in July 1966 when the Lord Chancellor, Lord Gardiner made a statement on behalf of the House of Lords. In the statement, Lord Gardiner acknowledged the degree of certainty adhering to judicial precedent gave to the people but he also pointed that a too rigid adherence to judicial precedent could end up meaning and enabling injustice and so it had to be changed especially in criminal law. This however only concerned the House of Lords and no other court. It can be said that this statement was made out of compassion and also because of the changes in circumstances and the changes in the culture of the modern world because some of the laws have been made as far back as the Victorian era. The following are examples of cases in which the doctrine of Judicial Precedent was not followed.
An example of this in is the case of Herrington v British Railway Board (1972). The precedent that had been set for the case was from the case of Addy and Sons v Dumbreck (1929). In the case in 1929, the House of Lords had decided that the occupier or owner of premises was liable to a trespasser if the trespasser had been injured or harmed by the occupier or owner of the premises intentionally or recklessly but in the case in 1972, the House of Lords overruled that decision stating that a trespasser was entitled to some degree or level of care propounding it on a test of 'common humanity'. In the later case, the judges proved that at least a little duty of care was entitled to everyone even trespassers.
Another example of a case in which the doctrine of Judicial Precedent was not followed is the case of Miliangos v George Frank (Textiles) ltd (1976). The Precedent had been set for the case in the case of R v United Railways of the Havana and Regla Warehouse Ltd (1961). In the case in 1961, the House of Lords ruled that damages awarded in an English civil case could only be in sterling. However, in the case in 1979, the House of Lords put into great consideration that the instability of the sterling in 1979 was of a much greater concern than it was in 1961 and so it decided to overrule the previous decision and ruled that damages awarded in an English civil case could be awarded in other currencies apart from sterling. The judges in the later case realised the absurdity in the ruling of the previous case and overruled it. This is reasonable as long as the amount paid in other currencies corresponds to the amount that would have been paid if it were to be in sterling.
Another example of a refusal to follow the doctrine of judicial precedent is in the case of Murphy v Brentwood District Council (1990). The precedent that had been set for the case was in the case of Anns v Merton London Borough Council (1978). According to the decision in the case in 1978, the House of Lords ruled on the law governing the liability of local authorities on the inspection of building foundations. The Lords stated that the local authorities owed a legal duty to the owner of a building to take reasonable and adequate care to make sure that the foundations of a building complied with the standards of building regulations and if this was broken, the occupier of the building had the right to take necessary legal actions against the local authorities. This provided wide and extensive duties to the local authorities and this was put into consideration by the House of Lords in the case in 1990. The House of Lords stated that the occupier could only take legal action when the damage involved bodily injury or physical damage and not a pure economic loss.
Another notable example is in the case of Hall v Simmons (2000). The precedent for the case had been set by the case of Rondel v Worsley (1969). The case in 1969 recognized the immunity of barristers against claims of negligence in carrying out their duties and in presentation of their cases. The case in 2000 refused to follow such a decision. It could be said that the court realized the injustice that would have been done or repeated if the principle of stare decisis was followed.
These examples show cases in which precedents were not followed and the various reasons for this have been discussed.
The following are examples of cases in which the doctrine of judicial precedent is followed.
Firstly, an example is the case of Alcock v Chief Constable of the South Yorkshire Police (1991). The precedent set for the case is McLoughlin v O'Brian (1983). In the case in 1983, a woman was told by a friend that her husband and two children had been involved in a fatal accident, two hours after the accident happened. The woman went to see her family and saw that they were in a terrible condition. Due to this, she suffered from nervous shock and depression. She sued her friend, the defendant for negligence under the tort law. The judge stated that nervous shock would be a foreseeable result of seeing the condition her family was in and so it was negligence on the part of the defendant. A decision was reached in favour of the plaintiff and was entitled to recover damages from the defendant. In the case in 1991, a stadium collapsed in which 95 people were killed and 400 were injured. The defendant was found to be guilty of negligence, that is, duty of care, in the admission of more people than the space could contain and the police could control. Ten people were entitled to damages after sixteen people, all of who had suffered from shock and/ or depression after receiving the news. They were able to succeed on the account of their proximity of relationship with the victims or in time and space. The decision in the case in 1983 is the precedent that was followed in the case of 1991 as the facts were similar, that is, the duty of care was not performed in both situations by both defendants.
Another example of a case in which the doctrine of judicial precedent was followed is the case of Junior Books V Vietchi Co Ltd (1983). The precedent that had been set for this case was in the case of Anns v Merton London Borough Council (1978). In the case in 1978, the court ruled that the local authorities owed a legal duty to the owner of a building to take reasonable and adequate care to make sure that the foundations of a building complied with the standards of building regulations and the plaintiff, that is, the owner of the building could bring legal action against the authorities and claim damages of any kind against the authorities because the authorities had not fulfilled its duty of care thereby committing tort of negligence. Veitchi, according to the 1983 case, was nominated to lay flooring at Junior Books' factory. The job was not well done as the floor was defected and as the contract was with Vietchi Co Ltd and not Vietchi himself, there was no contractual duty of care but with tort law, Junior Books could bring a case of negligence against Vietchi. The judges ruled that Vietchi had a duty of care to fulfil to Junior Books and the loss suffered by Junior Books was economic so Vietchi had to pay damages. The ratio decidendi of the 1983 case is that the authorities had a duty of care to fulfil, same as Vietchi in 1978 and in both cases, the duties were not fulfilled.
These cases show how judges have followed precedents in relevant cases and also the facts that make this precedent applicable.
Facts are very crucial in deciding whether precedent should be followed and matters of absurdities and unfairness when a higher court is dealing with a precedent set by a lower court. Judicial precedent is a very important and crucial part of the principles of law and as to be strictly abided to when applicable and when necessary.
