JUDICIAL PRECEDENT Reading a House of Lords Statement; reading works of legal reference A. Before you read 1. Answer the following questions. 1. What do you understand by the doctrine of judicial precedent? 2. Why is judicial precedent central to the English legal system? 3. What is a binding decision? 4. In the context of case-law, what is an authority? 5. Discuss your answers with other members of the class. 2. In 1966 the House of Lords made a statement in which they changed the rules of precedent. Before you read the statement, think of one or two advantages of the system of binding precedent.
Can you think of any disadvantages? Copy and complete the table in your notebooks. |Binding precedent | |Advantages |Disadvantages | | | | Discuss and compare your tables in small groups. B. Reading a House of Lords statement 1. Skimming and scanning activities i) Quickly skim the statement below to find the section of the text which: Example: describes the advantages of precedent Answer: lines 7-10 a. describes the disadvantages of precedent b. explains in note form what the statement is about . gives the new rule of precedent. ii) Quickly scan the statement to find out: a) who read it b) on what date c) If the statement was made by the House of Lords acting as a judicial or as a legislative body d) the name of the work of legal reference which describes the binding effect of House of Lords decisions. NOTE |1 |Judgment – Judicial decision as authority -Stare decisis – House of Lords – Freedom of House of Lords to depart from their previous | | |decisions where right to do so – Doctrine of precedent nevertheless an indispensable foundation of decisions of law. | |Before judgments were given in the House of Lords on July 26, 1966, Lord Gardiner, L. C. , made the following statement on behalf of | | |himself and the Lords of Appeal in Ordinary: | |5 |Their lordships regard the use of precedent (1) as an indispensable foundation upon which to decide what is the law and its | | |application to individual cases.
It provides at least some degree of certainty upon which individuals can rely in the conduct of | | |their affairs, as well as a basis for orderly development of legal rules. | | |Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also | | |unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating | |10 |former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. | |In this connexion they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of | | |property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. | | |This announcement is not intended to affect the use of precedent elsewhere than in this House. | | |(1) As regards the binding effect of decisions of the House of Lords, see 22 Halsbury’s Laws (3rd Edn. ) 798, 799, para. 1686; and | |15 |for cases on the subject see 30 Digest (Repl. 219-221,624-646. | | | | | | | | | | | | | |20 | | 2. Use information from the text to complete the table in activity A 2.
Were any of your own ideas the same as those in the text? 3. Read the statement carefully to answer the following questions: Before 1966 all House of Lords decisions were binding on lower courts (the Court of Appeal and below) and on the House of Lords itself. a. What is the new rule? b. How does the 1966 statement change the rules of precedent (1) in the House of Lords? (2) in lower courts? c. The statement says that the House of Lords will ‘depart from a previous decision when it appears right to do so’ (lines 14-15).
Do you think this means that in future 1) the House of Lords can choose not to follow a precedent in a particular case, but the previous decision remains the precedent for all other cases? or 2) the House of Lords can choose not to follow a precedent in a particular case, and the new decision becomes the precedent for future cases? d. In what branches of law can the new rule create problems? Why? 4. Word study a. Do you know Latin? Even today, many principles of English law are expressed in Latin. Find the Latin phrase in lines 1-3 of the text. Do you know what it means?
Lawyers pronounce Latin in a special traditional way, e. g. the phrase in the text is pronounced /sta:rei de’si:sis/. b. In 1966 Lord Gardiner held the most important legal office in the English legal system and presided over the House of Lords. The abbreviation for the position he held is LC (line 5). What was he? c. Which expression in the text refers to the peers who made the statement? d. From the context decide if ‘nevertheless’ (lines 3,11) means never, however, or therefore. C. Reading a work of legal reference 1. The binding part of a decision ) In the extracts which follow, quickly find the Latin terms which are pronounced: a)/’dikt? / b) /bubit? ‘dikt? / c) /,rei? i? u desi’dendi/ ii) Read the extracts and find the difference between the ratio decidendi and dicta. Which constitutes binding precedent? iii) a) Do dicta bind judges in later cases? b) Which will have more influence: obiter dicta or judicial dicta? |1 |573. Ratio decidendi. The enunciation of the reason or principle upon which a question before a court has been decided is alone | | |binding as a precedent.
This underlying principle is called the ratio decidendi, namely the general reasons given for the decision | | |or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which | | |gives rise to the decision. What constitutes binding precedent is the ratio decidendi. | |5 |574. Dicta. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that it is | | |unnecessary for the purpose in hand are generally termed ‘dicta’.
They have no binding authority on another court, although they may| | |have some persuasive efficacy. Mere passing remarks of a judge are known as ‘obiter dicta’, whilst considered enunciations of the | | |judge’s opinion on a point not arising for decision, and so not part of the ratio decidendi, have been termed ‘judicial dicta’. | | |Lord Hailsham, Halsbury’s Laws of England | |10 | | | | | . First reading: personal reading comprehension The extracts on this page and the next are from Halsbury’s Laws of England, the work of reference referred to in the 1966 House of Lords statement. The following text explains in detail how the system of binding precedent operates in the English courts. i) First read the paragraph headings only (e. g. paragraph 577 House of Lords decisions) to see exactly what the text is about. Do not read the text yet. Which paragraph refers to High Court decisions? |1 |JUDICIAL DECISIONS AS AUTHORITIES | | |577. House of Lords decisions.
The decisions of the House of Lords upon questions of law are normally considered by the House to | | |be binding upon itself, but because too rigid adherence to precedent may lead to injustice in a particular case and unduly | | |restrict the proper development of the law the House will depart from a previous decision when it appears right to do so, | |5 |although it bears in mind the danger of disturbing retrospectively the basis upon which contracts, property settlements and | | |fiscal arrangements have been entered into and the especial need for certainty as to the criminal law.
When a broad principle has| | |been clearly decided by the House, the decision should not be weakened or frittered away by fine distinctions, and an erroneous | | |decision of the House upon a question of law can be set right only by Act of Parliament. A decision of the House of Lords | | |occasioned by members of the House being equally divided is as binding on the House and on all inferior tribunals as if it had | |10 |been unanimous.
Decisions of the House of Lords are binding on every court inferior to it. | | |578. Court of Appeal decisions. The decisions of the Court of Appeal upon questions of law must be followed by Divisional Courts | | |and courts of first instance, and, as a general rule, are binding on the Court of Appeal until a contrary determination has been | | |arrived at by the House of Lords.
There are, however, three, and only three, exceptions to this rule; thus (1) the Court of | | |Appeal is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) it is bound to refuse to| |15 |follow a decision of its own which, although not expressly overruled, cannot, in its opinion, stand with a decision of the House| | |of Lords; and (3) the Court of Appeal is not bound to follow a decision of its own if given per incuriam.
Unlike the House of | | |Lords, the Court of Appeal does not have liberty to review its own earlier decisions. | | |A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of | | |co-ordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has | |20 |acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in | | ignorance of the terms of a statute or rule having statutory force. | | |In its criminal jurisdiction the Court of Appeal applies the same principles as on the civil side, but recognises that there are | | |exceptions (a) where the applicant is in prison and in the full court’s opinion wrongly so; (b) where the court thinks that the | | |law was misunderstood or misapplied; and (c) where the full court is carrying out its duty to lay down principles and guidelines| |25 |in relation to sentencing. | |579. Divisional Court decisions. A Divisional Court is bound by its own previous decisions, regardless of how many judges are | | |sitting, with limited exceptions in criminal cases, subject always to the per incuriam rule. Faced with conflicting earlier | | |decisions the court is free to decide which to follow. Divisional Court decisions bind judges of first instance, even of a | | |different division, but not the Employment Appeal Tribunal. | |30 |585. Scottish and Irish decisions.
Decisions of the Scottish and Irish courts are not binding upon English courts, although | | |entitled to the highest respect. On questions of principle it is desirable that the laws of England and Scotland should be | | |uniform and that a decision of the House of Lords, when founded on principle and not on authority, should be regarded as | | |applicable to both countries, unless the House itself says otherwise. There is a well-settled practice that in revenue and | | |taxation matters courts of first instance in England endeavour to keep in line with the courts of Scotland.
Further, an English | |35 |court ought to follow the unanimous judgment of the higher Scottish and Irish courts, where the question is one which turns upon | | |the construction of a statute which extends to those countries as well as to England, leaving it to be reviewed, if thought fit, | | |by the appeal court, as it is desirable that interpretations should be avoided which result in one meaning in one country and one| | |in another. | |586. Overseas decisions. A decision of an overseas court in a common law country is not of course binding on an English court, | |40 |but may be useful as a guide to the court to which it is cited as to what its decision ought to be. Thus, for example, great | | |respect is paid to the views of eminent judges of the United States Supreme Court and to decisions of the highest tribunal of the| | |State of New York.
English courts should be in keeping with United States courts on carriage by sea and carriage by air, although| | |if English law proved to be different, effect would have to be given to the difference, whatever the inconvenience. | | |It is desirable that the great common law jurisdictions should not differ lightly, particularly on so universal a matter as | |45 |commercial law, or the measure of damages, or remoteness of damage, or interpretation, or privilege, or patent law. | |Lord Hailsham, Halsbury’s Laws of England | | | | | | | | | | |50 | | | | | | | | | | | | | | |55 | | | | | | | | | | | | | | |60 | | | | | | | | | | | | | | ii) You now know what the text is about in general. Before you read, write down a few questions you hope the text will answer.
This will give you a personal purpose for reading, and will help you to read with more understanding and focus on the points of interest to you. iii) Read the text to find the answers to your questions from ii). Do not worry about parts of the text you don’t understand if you can complete this activity. iv) Did you find the answers to all your questions? What other important points does the text contain? Compare your work with other members of the class. 3. Language study i) Study the following sentences from the text and decide which of the forms given in the list below means exactly the same as each phrase in italics in a) to e): Choose from: 1) need not (2) need not be followed by (3) must (4) must be followed by (5) must follow. Example: a) the Court of Appeal is bound to decide which of two conflicting decisions of its own it will follow (lines 19-20) Answer: a / 3 must b. the Court of Appeal is not bound to follow a decision of its own if given per incuriam (22-23) c. A divisional court is bound by its own previous decisions (36-37) d. Divisional Court decisions bind judges of first instance (39-40) e. A decision of an overseas court is not binding on an English court (53-54) ii)
Notice the construction of the different types of phrase with bind, binding and bound: to be bound TO |+ infinitive |Lower courts are bound to follow House of | | | |Lords decisions | |to be bound BY |+ noun |Lower courts are bound by House of Lords decisions | |to be binding ON |+ noun |House of Lords decisions are binding on lower | | | |courts | |to bind |+ noun |House of Lords decisions bind lower courts | Which two pairs of sentences have exactly the same meaning and emphasis? ii) Complete the following sentences correctly using a phrase with bind, bound, or binding. Refer to paragraph 578 of the text for the legal information you need. a) Divisional Courts________ by Court of Appeal decisions on questions of law. b) In general the Court of Appeal _________ follow its own decisions. c) A Court of Appeal decision given per incuriam ______ on the Court of Appeal in a later case. d) Court of Appeal decisions _________ the House of Lords. iv) Study these phrases from the text: An English court ought to follow the unanimous judgment of the higher Scottish courts (47-49) The laws of England and Scotland should be uniform (43) a.
Are judgments of higher Scottish courts binding on an English court? b. Must the laws of England and Scotland be uniform? c. Scan paragraphs 585 and 586 of the text to find some more phrases containing should and ought to. d. Study the phrases from c) above. In what way is the meaning of the modal verbs should and ought to different from must, to be bound to and similar expressions of obligation? 4. Word study i) Study lines 25-30 of the text. The word ‘case’ is repeated four times. For each example, decide if case is used with its special legal meaning of a legal action or set of legal circumstances. What do you think the expression ‘in which case’ means? i) Word families: use your knowledge of word families to work out the probable meaning of the following words from the text. a. ‘weakened’ (line 10): think of the adjective weak; what do you suppose the related verb to weaken means? b. ‘overruled’ (21): when the judge rules in a case, s/he decides what the law is and gives judgment. What do you suppose the judge does when s/he overrules a previous decision? c. if the law is ‘misunderstood’ or ‘misapplied’ (34) do you think it is: (1) not understood or not applied (2) understood or applied correctly (3) understood or applied wrongly What does the prefix mis- mean? Do you know any other words beginning with mis-? d. What do you suppose ‘guidelines’ (35) are? 5. Reformulating a text: designing a diagram
Like taking notes, reformulating a text in order to show the main points of the text both helps you to understand and shows understanding of the text, i) Read the text again and make a note of the main points. ii) Using information from the text, design your own diagram to show how the doctrine of binding precedent operates in the English judicial system. Concentrate on the main points of the text only. Your diagram should include the operation of precedent in the House of Lords, the Court of Appeal, the High Court and lower courts, and the effect of Scottish, Irish and overseas decisions on the courts of England and Wales. When you have finished, compare your work with other members of the class. 6. Cognates and false friends ) Study the sections of the text containing the words in italics in the exercise below and decide which of the two definitions which follow is correct in the context. In each case, does a similar word exist in your language? If so, decide whether it is a true cognate or a false friend in this context. Example: The court has acted in ignorance of a previous decision (line 25) 1. the court didn’t know about a previous decision 2. the court knew about a previous decision, but chose not to follow it. Answer: definition (1) is correct. Is ignorance similar to a word in your language? If so, does it have the same meaning? a) the proper development of the law (line 5)
1. the typical, characteristic development of the law 2. the correct, appropriate development of the law. b) fiscal arrangements (7) 1. greements, accords relating to tax payments 2. plans, preparations relating to tax payments. c) an erroneous decision (10) 1. a wrong decision 2. a decision which is not precise or exact d) a contrary determination (17) 1. a contrary decision 2. a contrary definition e) sentencing (35) 1. deciding the punishment for a crime, e. g. a sum of money, a certain period in prison 2. giving judgment in a case: deciding if the defendant is right or wrong and why. f) patent law (63) 1. the law relating to licences and permits 2. the law relating to the exclusive right to make and sell an invention ii) Which verbs are closely related to the italicised nouns in b), d), e) and f) above? E. g. ) arrangements (noun) Answer: to arrange (verb) iii) Complete the following sentences with a suitable word from exercises i) or ii) above: Example: Ignorance of the law is no defence. a) The designer immediately applied for a _______ for the new model he had created. b) The court _______ that the defendant was in breach of his obligations. c) The _______ remedy for breach of contract is often an order of specific performance. d) The judge ________ the murderer to life imprisonment. 7. Oral practice 1. Use your diagram to describe how the doctrine of binding precedent operates in the English judicial system. Include the following points: Decisions of the English superior courts Decisions of Scottish and Irish courts Overseas decisions. 2.
Work together in pairs or small groups, and in turns describe precedent in each court. D. Development 1. Applying the doctrine of binding precedent Use your diagram and the text to solve the following practical problems: a) If the House of Lords follows its own precedent in the present case (concerning the law of property) the result will not be just. Is it bound to follow the precedent or not? b) The House of Lords has reached a wrong decision on a question of law. Can it overrule the decision in a later case? c) The House of Lords has reached a decision which the Court of Appeal does not consider just. Is the Court of Appeal bound by the House of Lords authority in a later case? ) There are two previous authorities for the present case before the Civil Division of the Court of Appeal – a Court of Appeal precedent and a conflicting House of Lords precedent. Which authority binds the court? e) Two previous, but conflicting Court of Appeal decisions exist. In the present case, the Civil Division of the Court of Appeal would prefer to follow the earlier decision. Can it do so? f) The Court of Appeal decides that if it follows a precedent of its own, the result in the present case will be unjust. Can it depart from its previous decision? g) The members of the Court of Appeal agree that they did not apply the law correctly in a previous case.
Must they follow the precedent in the present case? h) The first hearing of a civil case takes place at the County Court. Must the court follow a precedent of the Family Division of the High Court? i) The first hearing of a criminal case takes place at the Crown Court. Is the court bound by a Court of Appeal precedent? j) In a previous case, a Scottish superior court has interpreted a statute which is applicable in all the UK. Is the English High Court bound to construe the statute in the same way? k) Is the English Court of Appeal bound to follow a decision of the US Supreme Court concerning patent law? Design and complete your own vocabulary network on the subject of the judicial system.
Use vocabulary from the whole Unit and include other words and phrases you knew before, too. 3. Discussion points Think about the following points for a few minutes and prepare to talk about them: In your legal system, do some judicial decisions bind or influence courts in future cases? If so, in what circumstances? How important is precedent in your judicial system? Compare the use of judicial precedent in the English judicial system and in your country. To practise speaking, talk about your ideas. If possible, record them on tape. If you prefer to practise writing, write some of your ideas down. Compare and discuss your ideas with other members of the class.