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The doctrine of judicial precedent

The doctrine of judicial precedent is fundamental to the operation of common law ; it provides a
framework within which case law can operate as a source of law in the English legal system. In practice
it means that a judge deciding a particular case will look for a precedent – a decision in an
earlier similar case, to help them reach their decision in the case before them.

The most important justification for following precedent is the idea of doing justice. It
leads to consistency in the sense that similar cases should be treated in a similar
way.
Another justification is that if judges follow the reasoning and decisions of their judicial
colleagues, the common law becomes certain and predictable.

The idea of BINDING PRECEDENT (Stare Decisis)

One important and distinctive feature of English law is that the reasoning and decisions
found in preceding cases are not simply considered as a good guide, but can be binding
on later courts. This is known as the principle of stare rationibus decidendis
usually referred to as stare decisis which means “let the decision stand”. Remember
that stare rationibus decisis is the more accurate term because it is the reasoning
(rationibus) that is the binding element in judicial precedent.

So basically, the concept is that when a court makes a decision in a case then any courts
which are of equal or lower status to that court must follow the previous decision if the
case before them is similar to that earlier case.

Important: the “decision” of a case can mean a number of things. At its simplest, the
decision is that X won and Y lost. Thus X and Y are bound by the decisions; this is
referred to as res judicata (a matter which has been adjudicated upon). But when we
use the word decision in a legal context, we are referring to the whole reasoning
process that went into deciding that X won. We are referring to why X won.

The principle of stare decisis continues to apply until

Another court decides that the case was incorrectly decided,
or A court higher in hierarchy overturns the decision, or
Parliament decides to change the law by passing a new Act of Parliament that
overrules or alters the rule laid down by the court.
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Persuasive Precedents
There is a distinction between precedents which a judge may choose to follow _persuasive
precedents_ and those which a judge is bound to follow_ binding precedent.

A precedent is persuasive where it is not binding but will still be taken into account by a court.
The judge may feel that they are under an obligation to explain why they are not going to
follow a persuasive precedent.

Following are some examples of persuasive precedents:

Ratio of the judicial committee of the privy council

Ratio of superior courts in other common law jurisdictions.
High court judges treat the decisions of other high court judges as very persuasive.

The Distinction Between Ratio Decidendi and Obiter

Dicta

The decisions of judges normally comprise material about the facts of the case, information
about arguments made in court, and then there is the decision of the case and the reasons for
that decision. The essential pieces of information that are important for the operation of
binding precedent are the material facts of the case and the application of legal principles to
those facts that leads to the decision.

What constitutes the precedent that must be followed in later cases is the ratio decidendi_ the
reason for deciding. There is not a single test for identifying the ratio in a case. At its simplest
ratio is because factor. So we can say that “the owner of the metal yard was responsible for the
injuries occasioned by trespassing children when metal fell on them because he had not taken
sufficient care to fence the dangerous site and to keep them out”.

So basically, the ratio is the legal rule that leads to the decision and that is binding on a
later judge. Sir Rupert Cross explained in his book “Precedent in English law”:

“The ratio of a case is any rule of law expressly or impliedly treated by the judge as a
necessary step in reaching his conclusion, having regard to the line of reasoning adopted
by him…..”
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Anything else said in a case that does not relate to the material facts (will explain later) is known
as the obiter dictum (this means things said by the way). Obiter statements are not binding
on a later judge. Obiter statements can arise in many ways…. for example

Where the judge makes a hypothetical pronouncement e.g. ‘if the facts had been
different then my decision would have been … or,
the judge might say what he would have decided had he not been bound by stare
decisis: or
what the judge said was entirely relevant to the facts, but his judgment was in the
minority. A minority judgment has its own ratio, but that cannot form part of the ratio
of the case, since that judge’s view did not prevail.

To understand obiter and ratio consider this example. In Donoghue v Stevenson

(ginger beer can case) Lord Atkin made several comments on law relating to negligence.
One observation was that one owed a duty of care not to injure one’s neighbors i.e. a
person so closely affected by one’s acts that one must take reasonable care not to injure
them. This is an obiter statement because it is not directly related to the facts, it
proceeds far beyond that in its generality. To form a part of the ratio, the statement
would have had to be closer to the actual facts e.g. relating to the duty owed by
manufacturers to the ultimate consumer.

Important: a judge may decline to follow anything that is not the ratio. However, the
importance of obiter cannot be set aside. One man’s obiter may be the next man’s
ratio to a case. Also obiter statements sometimes turn out to be more influential than the
actual ratio as we can see the “neighbor principle” which was an obiter was used by later
judges to form the basis upon which the law of negligence was to develop.

Material Facts

Material facts of the case are the facts that are important to the decision. A case involves
several facts, but a judge will generally make clear which facts are relevant. So again,
taking the example of Donoghue v Stevenson (where Mrs. Stevenson was made ill as
a result of consuming ginger beer poured from a brown bottle which contained a dead
snail. The fact that the bottle was brown and thus the contents could not be
examined was a material fact, while the fact that the content of bottle was ginger
beer was not material. The point was that contents could not be examined.
The doctrine of binding precedent requires that a judge follows the decisions of
earlier cases unless a similar earlier precedent can be distinguished. Cases can be
distinguished on their material facts or on the point of law involved.
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Precedent in practice (vertical and

horizontal precedent in the court
hierarchy )

The basic principal to keep in mind is that the precedents created by superior courts
bind lower courts and generally courts of equal status.
One must keep in mind the concepts of vertical and horizontal precedent.
Vertical precedent refers to the extent to which a court lower down the hierarchy
is bound to follow a decision of a court higher up the hierarchy e.g is the court of
appeal bound to follow the decisions of supreme court ?
Horizontal precedent refers to the extent to which a court at the same level is bound
to follow its own earlier decisions e.g. is the COA bound to follow its own earlier
decisions?

The Supreme court

Vertical precedent The UK Supreme court decisions bind all the lower courts.

Horizontal precedent For some 100 years the law lords also considered
themselves bound by their previous decisions. The reason for this was to bring finality to
cases and legal issues so that they would not be continually reargued. However this
changed with the Practice Statement (judicial precedent) 1966, where the
House of Lords said that although the doctrine of BP had many commendable points
but too rigid adherence to precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law.

After the establishment of the UK supreme court in 2009 the practice statement was not
reissued but in Austin v Southwark London borough council, lord hope stated that this
has as much effect in the supreme court as it did before(so supreme court is not bound by their
earlier decisions)

The law lords decided that they could depart from their own previous decisions but would do
so only in rare circumstances. So long as the power is used cautiously, it provides
flexibility while broadly maintaining consistency and predictability in the
common law. the history since 1966 shows that HOL and SC have used the power very rarely.
In a study published in 1982 called the law lords, it is reported that between 1966 and 1980
there were 29 cases where the HOL was invited to overrule their own precedents. Only in 8
cases the court did overrule one of their own earlier cases. This shows the level of reluctance by
the HOL.

Despite this the law lords have changed their minds there are some examples of cases where
the HOL has declined to follow their earlier decisions.

Civil cases
British railways board v Herrington this case involved the duty of care owed by an
occupier of land to people trespassing on the land. The HOL in Herrington overturned the
much earlier case of Addie v Dumbreck. In Addie the HOL had held that an occupier of land
would only be liable for harm caused to a trespasser if the harm was caused intentionally. The
HOL in Herrington held that social attitudes had changed in the past 50 years and occupiers of
land should take reasonable steps to deter people from trespassing where they are likely to be
injured. Thus in this case the lordships imposed a duty of care on British railways to keep
railway line fences repaired.

Milangos v George Frank textiles ltd : HOL had previously decided that all awards of
damages in English court had to be made in sterling. In this case, however because of changes
in international trade and the status of sterling they felt the time had come not to adhere to
their previous decisions.

Austin v Mayor and Burgesses of London Borough of Southwark: overruled a

previous decision in Knowsley Trust v White. This case is important for two things. First that
the practice statement applies to the supreme court, and second that the UK SC will be cautious
about overturning an earlier decision on statutory interpretation unless there are very strong
reasons doing so.

Usually the Law lords look for wider policy considerations before declining to follow an earlier
decision. However, the case law suggests that there is no single principle by which the SC sets
about overturning its own precedents. This can be shown by the case of Murphy v
Brentwood District Council in which the law lords were again prepared to overturn their
previous decision in Anns v Merton London Borough Council. The law lords gave
various reasons for doing so. Lord Mckay felt that in the earlier case the facts had not been
considered in detail therefore the authority was weak. Lord Keith looked at Southerland Shire
Council v Heyman, an Australian case which had rejected Anns and analyzed the older cases on
which Anns itself was based and proved these earlier decisions to be faulty. Lord Oliver also
noted academic criticism of the decision in Anns.

We can see that there is no obvious pattern to be found. In the end the HOL/SC has had to
and will continue to have to try to balance questions of certainty, flexibility, legal, commercial
and social developments.

So, in Arthur JS Hall v Simons HOL departed from their own decision in Rondel v
Worsley on the basis that the public policy reasons for the immunity being granted to
advocates no longer stood up to scrutiny in today’s society. On the other hand the HOL in R v
Kansal criticized its previous decision in R v Lambert on the application of HRA 1988 to
matters arising before that Act came into force.
In Knauer v Ministry of Justice lord Hale and lord Neuberger said “The
supreme court should be circumspect before accepting an invitation to
invoke the 1966 Practice Statement. Here there was no hesitation as
previous case was illogical resulting in unfair outcomes and there was a
material change in the legal landscape. There was a overwhelming need to
change the law”.

In Wainwright v Home Office Lord Hoffman said “The extension of existing

laws is one thing; the creation of altogether new right is another. It is no
function of the courts to legislate in a new field, it is better to leave the law
to the parliament to change prospectively if overruling is likely to create a
new right”.

Criminal cases
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Knuller v DPP : the first time after the practice statement where HOL was invited to overrule
a decision in a criminal case (previous case of Shaw v DPP). Do facts. HOL refused to overrule
shaw. Lord Reid said : “however wrong or anomalous a decision may be it must stand…unless or
until it is altered by Parliament”.

R v Shivpuri: the first time HOL overturned its decision in criminal law. In this case HOL was
invited to overrule its previous decision in Anderton v Ryan. Ryan had dishonestly handled a
video recorder that she believed was stolen. In fact it was not stolen. The HOL held that Ryan
could not be guilty of attempting to steal the goods under s.1 of criminal attempts 1981 as it was
impossible in this case.

In Shivpuri the defendant believed that he was dealing with a controlled drug when it was in
fact harmless and on the question of liability the house was invited to overturn its decision in
Ryan. It did so. Lord Bridge acknowledged that the earlier decision has been wrong, there
was no valid ground on which it could be distinguished. he said : “if a serious error, embodied
in a decision of the house has distorted the law, the sooner it is corrected the better”.

Another example where HOL overturned an earlier decision of DPP for Northern Island v
Lynch is that of R v Howe concerning duress as a defense to murder. In Howe HOL held
that duress is never a defense to murder.

The Court of Appeal

Vertical precedent (To what extent is the COA bound to follow the
decisions of the HOL/SC)

Decisions of COA bind courts lower down the court hierarchy.

Strictly speaking, the COA is always bound by the decisions of HOL/SC. But there have been
campaigns in the COA to overcome this principle. The attacks were made by Lord Denning.

1. The per incuriam campaign

Denning said that if a HOL decision had been made per incuriam it need not to be
followed. A per incuriam decision is one where a court failed to take into

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account all the relevant and vital statutes or case authorities and that
this had a major effect on the decision.

Saying that a decision was made per incuriam does not simply mean the earlier court got things
wrong. It means there was a significant oversight. Not only there must have been a failure to
take account of relevant authorities, that fault must also have been such a major effect
that it seriously affected the reasoning in the case and would have affected
the outcome.

Lord Denning tried this form of reasoning in the case of Broome v Cassell saying that an
earlier HOL decision in Rookes v Barnard was a decision made per incuriam because it had
failed to consider even earlier HOL authorities.

The case was appealed to the HOL where Lord Halisham took the opportunity to disapprove of
Denning’s approach. He said:

“…in the hierarchical system of courts which exists in this country, it is necessary
for each lower tier, including the Court of Appeal, to accept loyally the decisions
of the higher tiers.”

Thus the position is that COA is bound by the decisions of HOL whether or not
COA approves of those decisions.

2. The Lapsed Rule campaign:

Another attempt by Lord Denning to depart from the stare decisis was the lapsed rule
campaign. Consider this example, HOL reached a decision some years ago based upon a
particular rule e.g. that damages in English courts could only be given in sterling. Now let us say
that reason for the rule has disappeared: the forms have changed and sterling has lost its
stability. Should the precedent created by HOL be followed even though the whole basis of
precedent has disappeared?

Denning in the case of Schorsch Meier GmbH v Hennin described the rule as cessante
ratione legis, cessat ipsa lex (with the reason for the rule ceasing, the law itself no longer
exists). Denning and Foster J agreed that the HOL decision in Re United Railways of
Havana had run its course. Lord Lawton however disagreed, he believed that COA has no
such power and found himself bound by the decision of HOL.

The case did not go on appeal to the HOL. However, HOL soon got the opportunity to comment
on this issue in the case of Miliangos v George Frank where they totally disapproved of Lord
Denning’s views. Surprisingly though HOL did overrule their own previous decision on the
same grounds as Denning’s.
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Thus one can say that Lord Denning’s campaigns failed completely. It is for the HOL to change
its mind and not for the COA to decide the issue. This helps to create certainty.
But on the other hand strict adherence to the rule may increase costs (because of the need for
further appeals).

Horizontal precedent (to what extent is the COA bound by its own
previous decisions)

The basic rule is that it is bound. This was decided in the case of Young v Bristol Aeroplane co.
ltd. However, three exceptions were given by Lord Greene MR on behalf of the court.

a) the first exception: the COA can chose between its own conflicting decisions

if there is a conflict between 2 decisions of COA which of the decisions should be followed.
Academic and judicial debate over the years indicate that in such a situation a later COA
would be free to decide which authority it should follow with the result that the one not chosen
is overruled.

The conflict can arise for a number of reasons:

because the COA does not hear one case at a time

it is also possible that some earlier cases may not have been reported
Equally, one court may look at the previous decisions and consider
them distinguishable for one reason or another while the other may
think they are not distinguishable and should be followed.

An example of the use of this rule is National Westminster Bank v Powney where the
case was faced with two irreconcilable decisions both decided in 1948: Lamb v Rider and
Lough v Donovan. The court followed Lamb v Rider.

Similarly the problem arose in Starmark Enterprises Ltd v CPL. Two earlier COA
decisions on the same matter appeared to be in conflict. Lord Justice Kay decided that
decisions 1 and 2 did conflict and he preferred views expressed in decision 1 and felt bound by
it. Lord Justice Arden however held that decision 1 and 2 involved the same principle and could
not be reconciled: it was not possible to distinguish them. But Her Ladyship agreed with Kay LJ
and held that decision 2 was faulty and therefore could not be followed.
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b) The second exception: if its own previous decision has been overruled
expressly or impliedly by the SC/HOL, it need not be followed

This is self-explanatory.

However, what if the order of cases is as follows:

A HOL decision (1980)

COA decision (2008) which for some reason is contrary to earlier HOL decision

Now your case in COA today

Now the COA is caught b/w two rules, one saying it is bound to follow its own decision and
other saying it is bound to follow the HOL decision. This situation arose in Miliangos v
George Frank. A year earlier the COA in Schorsch case had ignored earlier HOL decision.
Now the same issue came before COA in Miliangos. The COA chose to follow its own decision
and not the HOL. When case went to HOL, they took the opportunity to criticize Lord Denning’s
approach for ignoring the doctrine of stare decisis.

c) The third exception: the court is not bound by its own decisions found
to have been made per incuriam

Remember that per incuriam does not simply mean that court made a mistake. Thus, in
Morelle v Wakeling Lord Evershed MR limited the use of per incuraim rule to cases
where:

There was ignorance of authority which would have been binding on the court,
and That ignorance led to faulty reasoning.

To this COA have added that the rule can be applied only where, had the court reviewed these
authorities, the court would have reached a different decision. Thus, in Williams v Fawcett and
Duke v Reliance Systems has shown itself ready to use this rule but with reservations.

Another example is the case of Rakhit v Carty where the court was faced with situation where
a COA decision (decision 1) was plainly per incuriam as it had missed some vital statutory
provisions. Decision 1 was followed in another COA case (decision 2). Could the present COA
still declare decision 1 to be per incuriam and therefore decision 2 of no binding effect? Lord
Donaldson said: “if, therefore, that court (in decision 2) having all the relevant authorities
before it, had concluded that (decision 1) was rightly decided, I would have felt bound to
follow it, leaving it to the HOL to rectify the error”.
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The court declared decision 1 to have been reached per incuriam, thereby invalidating
both decision 1 and 2 as precedents.

The latest pronouncement on this matter by COA was Peter Limb v Union Jack Ltd. Also,
in Young v Bristol Lord Greene MR said that finding of per incuriam would only occur in rarest
of cases.

IMPORTANT (can the COA depart for its own previous decisions in situations
other than stated above?)

Davis v. Johnson:

The COA had to consider the case of a victim of domestic violence.

Ms Davis had unsuccessfully asked the court for an order to compel her abusive partner to leave
the flat that they had been sharing. To allow her appeal, the COA would need to depart from its
previous decisions where injunctions had not been awarded in similar situation: B v B and
Cantliff v Jenkins.

Lord Denning made a strong argument:

He agreed that normally, the COA was bound by its own decisions. However, he criticized the
consequences of such an argument.

a) It may be that an appeal is never made to HOL,

b) There is long delay before such an appeal is made; the example is the 60-year period before
the wrong decision in Carlisle and Cumberland Banking Co. Ltd v Bragg was corrected in Gallie
v Lee.

c) Or individual lacks the financial means to bring the appeal to HOL.

d) Moreover, the delay would cause hardship to MS. Davis as she was a resident in a battered
women’s refuge in 'appallingly' overcrowded conditions.

An argument that the lower courts may be left in confusion as to which case they would follow,
was cured by Lord Denning stating that the later one will be preferred as long as the latter case
contains 'full consideration' of the earlier case.

The court of Appeal was set up in 1873; it was the final appellate court as the jurisdiction of the
HOL was not established in 1875.

The court inherited the Jurisdiction of the COA in Chancery and the Exchequer Chamber. As
these courts were always considered to have the power to review their own decisions, it would be
fair to say that the new court had inherited this Jurisdiction.
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Lord Denning wanted to extend the powers similar to those that the HOL’s had
allotted to themselves through the PS 1966 to the COA. They stated as the practice of
precedent was laid out by the court itself, the court should have the power to alter or amend it
according to their own needs.

These arguments ultimately failed.

The HOL rejected the argument that the CA could depart from its own decisions if it
considered itself to be in error and affirmed the doctrine with which we are familiar. The CA is
bound by its own decision’s exceptions laid down in Bristol Aeroplane.

Viscount Dilhorne elaborated this argument, it had to be the case that the 1966 PS applied only
to the HOL, and if it did not then any court could argue that it was not bound by its own
previous decisions. Denning’s arguments ignored ‘the unique character of the HOL sitting
judicially’

Lord Diplock and Lord Salmon elaborated this point by citing the concluding words of the 1966
Statement: ‘This announcement is not intended to affect the use of precedent elsewhere than in
this House’.

CRIMINAL DIVISION OF THE COA

The Criminal division is and has traditionally been more relaxed on stare decisis,
especially where an individual’s liberty is at stake.
This seems strange as the HOL has often declined to change its view on criminal matters
to promote certainty.
In R v Parole Board ex parte Wilson, the court applied the principle that, where
liberty is at stake and injustice might occur, stare decisis was not applicable. (The CA
found the case distinguishable in any case so the comments on stare decisis were not
strictly necessary.
In R v Simpson – the COA affirmed this approach; there Lord Woolf stated that the
power to depart from the earlier decisions was not akin to the power of the HOL under
the PS 1966. He stressed the need for public confidence in the criminal justice system.

OTHER COURTS

Divisional courts of the High Court

Since the divisional courts have mostly appellate jurisdiction, the rules of precedent are similar
to the COA. Vertical precedent: divisional courts of high court are bound by decisions of the
SC/HOL and the COA. Decisions of Divisional courts are binding on inferior courts.

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Horizontal precedent: the DC are normally bound by their previous decisions subject to the
exceptions in Young v Bristol Aeroplane.

Now remember that when the DC are not exercising appellate powers, they are in the same
position as the high court.

The High Court

The high court is bound by the SC/HOL, the COA and Divisional courts. Its decisions bind all
inferior courts and tribunals. However the High court does not regard itself as bound by its own
previous decisions, although they are regarded as highly persuasive.

Crown court

Vertical: It is bound by decisions of the superior courts. Its own decisions are binding on the
lower courts below it in the hierarchy.

Horizontal: decisions on points of law are persuasive but not binding precedents.

The Privy Council

Under normal rules of precedent, decisions of privy council do not bind English courts but
they may be highly persuasive. However a recent case has cast a new light on this principle.
In the case of R v James and Karimi, COA held that in exceptional circumstances, a
Privy Council decision can bind the English courts and effectively overrule a HOL
decision. The case concerned interpretation of s.3 of Homicide Act 1957. The question was
whether the court should take into account the particular characteristics of the defendant when
considering a defense to murder. In R v Smith HOL held that all of the characteristics must be
taken into account by the jury when deciding whether loss of self control was enough to make a
reasonable man do what the defendant did. This decision was the subject of much criticism. In
2005 a similar case came to Privy Council in AG for Jersey v Holley. Privy council held Morgan
had been wrongly decided. Thus a conflict arose. In James and Karimi COA held it was inclined
to follow Holley instead of Smith. Reason they gave was that PC comprises members of the HOL
and since law being applied in Jersey was the same as law in England, the COA would take the
unusual step to decline from HOL decision.

The Court of Justice of the European Union

The CJEU is the only court that can make authoritative rulings on the meaning and
interpretation of European legislation. It should be noted, however, that CJEU only decides
what the law means. It does not decide the cases themselves.

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In other words once the CJEU has made an authoritative ruling on the meaning of law, the
application of that to a particular case is the province of the national court. So if there is a
decision of CJEU on meaning of EU law which the SC then applies, COA should strictly follow
the SC on factual analysis and CJEU on pure legal analysis.

The CJEU has itself stated that EU law takes supremacy over national laws in cases of conflict
between the two. So where there is a conflict between as earlier HOL decision and a later
decision of CJEU as in Sharp v Caledonia Group Services, the CJEU decision should be
followed. To this extent therefore stare decisis is disapplied.

The European Court of Human Rights

The decisions of ECtHR must simply be taken into account by our judges but they do not
create precedents (and the decisions are not enforceable in our courts).

On the question of which decision should be followed if a HOL decision is incompatible with an
ECtHR decision, see the case of Price v Leeds City Council. the case concerned rights of
gypsies to occupy land and whether attempts to remove them breached their rights under the
ECHR , art 8 (respect for private and family life). The problem was that an earlier HOL decision
(Harrow LBC v Qazi) was incompatible with a subsequent decision of ECtHR (Connors v
UK). The COA decided to follow HOL decision in Harrow. Lord Phillips MR provided that:

“It seems to us that in these circumstances, the only permissible course is to follow the decision
of the House of Lords but, to give permission, if sought and not successfully opposed, to appeal
to the House of Lords, thereby and to that extent taking the decision in Connors into account.”

As we have seen until now that the concept of stare decisis prevails throughout the
court structure. Decisions of higher courts are strictly followed and respected by
lower courts. Also courts aim to give decisions in line with their previous
decisions.

_______________

The principal of binding precedent serves the objectives of predictability

consistency and fairness within a common law system. Without precedent
there is a risk of uncertainty. But on the other hand too rigid adherence to
precedent can lead to rigidity in law.

Despite this strict adherence to the principle of stare decisis, judges do play
a vital role in the development of common law. With the English Legal

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System evolving, it is important that changes are made and these changes
are justified to bring flexibility in common law.

Judges as law makers (DO JUDGES MAKE LAW?)

Until relatively recently the traditional interpretation of the judicial function was that
judges do not make law. This understanding of the judicial role was founded on a fiction
that ‘cases do not make law but are the best evidence of what the law is’. Judges
therefore in their decisions were merely declaring what the law was.

The following quotes from senior judges in the 1940s and 1950s sum up the
traditional to judicial law-making:

“The function of the legislature is to make the law, the function of the administration is
to administer the law and the function of the judiciary is to interpret and enforce the
law. The judiciary is not concerned with policy. It is not for the judiciary to decide what
is in the public interest. These are the tasks of the legislature, which is put there for the
purpose, and it is not right that it should shirk its responsibilities” (Lord Greene,
1944)

By the nineteenth century, legal thinkers such as Austin and Bentham had written
about the concept of ‘judge-made law’. But it was not until the late twentieth century
that judges themselves fully admitted their role in judicial law-making, A key moment
came with the publication by a law lord, Lord Reid, of an article in 1972 called ‘the
Judge as Lawmaker’ which included the following statement:

“There was a time when it was thought almost indecent to suggest the
judges make law-they only declare it. Those with the taste for fairy tales
seem to have thought that in some Aladdin’s Cave there is hidden the
common law in all its splendor and that on a judge’s appointment there
descends on him knowledge of the magic words ‘Open Sesame’ .. We do not
believe in fairy tales any more” (Lord Reid, 1972)

A recent quote from Lord Dyson also shows that Judges are do take part in law making
procedure.
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Whilst most judges see themselves constrained by binding precedent, there is a scope
within the rules for development of common law principles, for correction of errors and
for the making of new law-albeit in a measured and incremental way (Etherton 2010,
Dyson2014). The UKSC however adopts a cautious approach to the making of
new law. The SC does not have the democratic legitimacy to introduce major changes to
law and it is mindful of its constitutional position and relationship with legislature.

The argument in favor of some degree of judicial law-making is that courts

can rapidly develop or change the law if it is necessary. The main argument
against the judiciary making law is that of democratic deficit. The judiciary
is appointed not elected. Thus in a parliamentary democracy under the rule
of law it is not for judiciary to legislate but for parliament.

The loopholes in the common law that enable judges to make law include:

Distinguishing precedents

The judge or lawyer may show a significant difference in the material facts or the legal
reasoning employed in the two, such that the court does not feel obliged to follow the
previous case.

Rylands v Fletcher (1866) LR 1 Ex Ch 265, Ex Ch; (1868) LR 3 HL 330, HL

The case is thought of as one of the best attempts of early 19th Century English
judges to build up the law of negligence.

Water escaped from the defendants' reservoir, through some old mine shafts that
had not been adequately sealed and flooded the plaintiff's working mines.
Blackburn J said the true rule of law was that the person who for his own
purposes brings on his land and collects and keeps there anything likely
to do mischief if it escapes, must keep it at his peril, and if he does not do
so he is prima facie answerable for all the damage which is the natural
consequence of the escape. Upholding this judgment in the House of Lords,
Lord Cairns LC said the defendants might lawfully have used their land for any
purpose for which it might in the ordinary course of the enjoyment of land be used,
and if in the natural use of the land there had been any accumulation of water, which
by the operation of the laws of nature had passed off into the land occupied by the
plaintiff, the plaintiff could not have complained. On the other hand, if the
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defendants not stopping at the natural use of their land had desired to use it for any
non-natural purpose, and if in consequence of their doing so the water came to
escape and pass off into the plaintiff's land, then that which the defendants were
doing they were doing at their own peril.

Green v Chelsea Waterworks (1894) 70 LT 547, CA

A water main burst and flooded the plaintiff's premises. In the Court of Appeal,
finding for the defendant, Lindley LJ said the rule in Rylands v Fletcher was
not to be extended beyond the legitimate principle on which the House of Lords
decided the case. If it were extended as far as strict logic might require, it would be a
very oppressive decision. The company having been authorized by Act of Parliament
to lay the mains, and having a statutory duty to maintain a water supply, were not
liable.

Rickards v Lothian [1913] AC 263, PC (Australia)

A sink in D's upper flat had been blocked and water turned on by an intruder,
causing damage in P's flat below. Lord Moulton, giving their Lordships' judgment,
said a defendant is not liable under the rule in Rylands v Fletcher for
damage caused by the wrongful acts of third persons. He also took up Lord
Cairns' emphasis on non-natural use, and said it is not every use to which land is put
that brings into play the rule in Rylands v Fletcher. It must be some special use
bringing with it increased danger to others, and must not merely be the
ordinary use of the land or such a use as is proper for the general benefit
of the community.

Read v Lyons [1946] 2 All ER 471, HL

The plaintiff was injured by an explosion at the defendants' munitions works. In the
House of Lords, Lord Simon LC said the strict liability recognized by the House to
exist in Rylands v Fletcher is conditioned by two elements: the condition of
escape from the land of something liable to do mischief if it escapes, and the

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condition of non-natural use of the land. In this case there had been no escape -
the plaintiff was injured on the defendants' premises - so the claim must fail. Lord
Simon and Lord Macmillan both expressed doubts as to whether making
munitions in time of war is a non-natural use of land adopted by the occupier for his
own purposes. Lord Simon emphasized the national interest, while Lord Macmillan
thought more generally that in an industrial community it was a probably not a non-
natural use of land to build a factory and manufacture explosives, though in a
populated urban area it might be different. It was unnecessary, said Lord Simon, to
consider whether the rule in Rylands v Fletcher applies where the claim is for
damages for personal injury as distinguished from damage to property. Lord
Macmillan, on the other hand, was sure that the doctrine of Rylands v
Fletcher had nothing to do with personal injuries.

Perry v Kendricks Transport [1956] 1 All ER 154, CA

Children playing around an old bus caused an explosion, in which some of them were
injured. Parker LJ disagreed with the dicta above and said personal injuries were
covered by the rule in Rylands v Fletcher, but found for the defendant nevertheless.
Like Lindley LJ, he saw no need to confine the exception of "acts of strangers" to
acts which proceed from the deliberate act of the stranger; the relevance of the
exception, he said, is that the stranger is a person over whose acts the
occupier of the land has no control.

British Celanese v Hunt [1969] 2 All ER 1252, CA

Metal foil strips stored outside an electrical components factory on an industrial estate
were blown by the wind and caused damage to an electricity substation. The Court of
Appeal said the storage of metal strips was not a non-natural use of the land, and the
plaintiff's claim must therefore fail.

Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, Taylor J

During a siege, the police caused damage to a building by firing a CS gas canister.
Taylor J ruled this was a matter of trespass rather than a case for the rule in Rylands v
Fletcher, but added obiter that the rule probably applied to escape from a

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vehicle as well as to escape from land: I can see no difference in principle, he said,
between allowing a man-eating tiger to escape from your land onto that of another and
allowing it to escape from the back of your wagon parked on the highway.

Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53, Times

10/12/93, HL

Chemicals spilled from drums at a tannery on a small industrial estate seeped slowly
through the ground and contaminated water supplies some years later. The water
board sued in negligence and nuisance and under the rule in Rylands v Fletcher.
Kennedy J dismissed the claim, finding as a matter of fact that the
pollution had not been reasonably foreseeable at the time of the
operations in question, and holding that the operations of the tannery
were a natural use of the land. The Court of Appeal reversed this decision, but
the House of Lords restored the judgment and found for the defendants, on the
grounds that the relevant damage was not foreseeable. Lord Goff said that
having regard to the steps which the House had already taken to contain the scope of
liability under the rule in Rylands v Fletcher it appeared to be appropriate now to
take the view that foreseability of damage of the relevant type should be
regarded as a pre-requisite of liability in damages under the rule. It was
not necessary for the purposes of the present case, he added, to attempt any
redefinition of the concept of natural or ordinary use, but he doubted the
correctness of the dicta in Read v Lyons and was satisfied that the
storage of chemicals in substantial quantities and their use in the
manner employed on the defendants' premises could not possibly be
within the natural user exception to the rule.

R v Pleydell (Michael Aaron) [2005] which distinguished another Court of Apeal

judgment(R v Woodward (Terence) [1995],both cases concerned causing death by
dangerous driving.

In Woodward, The fact that the driver had been seen with a glass of alcohol in his hands
just before driving was held not to be admissible as proof that he had been over the limit
whilst driving because there was no evidence of quantity consumed or effect (he had
been inquired in the crash and no samples had been taken). But this was

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distinguished in Pleydell where there was no evidence that the driver consumed
cocaine before driving.

In Pacitti Jones (Afirm) v O’Brien [2005] for instance, The Employment Appeal
Tribunal distinguished a House of Lords’ decision (Dodds v Walker [1981]) when
they held that the definition of a ‘month’ was different under an employment law statute
than under a landlord and tenant statute.

What the judge cannot do is to ignore a binding precedent or say that a decision of a
higher court was given per incuriam (without due care) and need not be followed.

Novel points

Further flexibility is provided by cases which raise novel points of law never previously
decided: where there is no precedent, or where there are precedents pointing opposite
ways, the judge has the opportunity of creating a new rule. In so doing he does
not simply toss a coin or impose his own personal opinion: he may instead reason by
analogy following a step-by-step process, or he may look for the broad
principles that seem to be illustrated in the decided cases.

In McLoughlin v O'Brian, for example, Lord Scarman and Lord Wilberforce

came to the same conclusion by different lines of reasoning.

McLoughlin v O'Brien [1982] 2 All ER 298, HL

A mother P saw members of her family in hospital about an hour after a fatal road
accident - one daughter was dead and her husband and two other children were
seriously injured - and she suffered psychiatric injury for which she sued the other
driver. Lord Wilberforce reviewed the history of "psychiatric injury" cases and
their step-by-step development of the law, and proposed an extension from a
victim at the scene to one who (like P) came upon the "immediate
aftermath" of the accident, subject to other criteria which P satisfied. Lord
Scarman took a different approach, and said there was a general legal principle
that tortfeasors were liable for the foreseeable consequences of their

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acts: it was foreseeable that P would suffer psychological injury in these

circumstances, and that was enough.

There are a number of other cases in which the judge or judges had no clear precedents
to follow, and in which a decision either way would have created a new precedent.

Gillick v West Norfolk&Wisbech Health Authority [1985] 3 All ER 402, HL

A mother of five daughters sought a declaration that a doctor would be acting

unlawfully if he gave contraceptive treatment for any of her daughters without the
mother's consent. The House of Lords said a child under 16 who has sufficient
intelligence to understand fully the implications of the proposed treatment (a
"Gillick-competent" child) can give her own consent to medical treatment. The fact
that her parents have not consented, or even that they have expressly refused the
treatment, is then irrelevant.

Prior to this decision the law on this point was unclear, but the Lords'
decision made new law to fill the gap.

Airedale HA v Bland [1993] 1 All ER 821, HL

A young man seriously injured in the Hillsborough disaster was being kept alive only
by extensive medical care and had no chance of recovery; his doctors (with the
support of his family) sought a declaration that it would be lawful for them to
discontinue treatment so that he might die peacefully. The precedents were
uncertain - the ability to sustain life artificially was relatively recent - and the
House of Lords could have decided either way. In fact they drew a distinction
between active euthanasia (which is unlawful) and the withdrawal of
treatment (which may be lawful if the treatment is no longer in the
patient's best interests) and granted the declaration sought.

Re A

Here the COA had to decide whether it was lawful for surgeons to perform a surgery
which would save only one of conjoined twins. As there was no law on the topic,

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the court balanced the interests of the two children and looked beyond the law. In
the end they allowed the surgery.

Marks & Spencer v One In A Million [1998] 4 All ER 476, CA

DD registered a number of Web addresses including (for example)

marksandspencer.com, virgin.org, and spice-girls.net, and then offered to sell these
addresses at high prices to the companies concerned. PP claimed the addresses were
theirs by right and should be handed over at only a nominal price. Because the Web
was still relatively new the Deputy High Court Judge (SumptionQC) had
no direct precedents to follow, but ordered DD to transfer the addresses to PP.
Since DD could have no legitimate use for other companies' registered trade names,
they should not have registered those addresses in the first place. [His decision was
subsequently affirmed on appeal.]

R v Brown [1993]

Here the HOL held that homosexual sadomasochists who inflicted harm on others
with their consent could be convicted of assault occasioning actual bodily harm
contrary to the Offences Against the Person Act 1861, despite the fact that this sort of
situation had not previously come before the courts.

Overruling

Another way in which precedent can be avoided is by overruling. However

technically, this is not an exception for a court which has the power to
overrule a decision will also usually not be bound by the chains of
precedent in the first place (e.g. HoL isn’t bound by anyone, the CoA
isn’t bound by the lower courts and can overrule its previous decision
in several situations). Nevertheless, the courts are extremely cautious when it
comes to overruling previous cases as it greatly affects the stability of the system.

Some of the causes considered to be legitimate to overrule include:

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Social Changes

Sometimes the precedents are clear but not in line with modern values and therefore
judges may depart from precedent.

R v R:

Prior to this case, a man could not be criminally liable for raping his wife.

Rape within marriage was recognized for the first time and the husband was no longer
immune from being prosecuted.

Fitzpatrick v Sterling House Association:

The HOL held that the term ‘family’ in the Rent Act 1977 should extend to same sex
partners. The court completed the change in this area of law in the case of Ghaidan v
Mendoza, where it was held that the provision of the Act which permitted unmarried
heterosexual couples to inherit statutory tenancies should be interpreted to include
same sex partners.

White v White:

(Case concerning division of divorce assets)

HOL: The court should begin with the presumption that the husband and wife were
entitled to equal shares, rather than looking to provide for the ‘reasonable needs’ of the
nonearning partner as it previously had done.

Multiple and inconclusive Rationes

Even crystal clear judgments’ may have more than one ratio and in some cases it is very
difficult to find the ratio.

For example the judge may say that I decide the case in favor of A however the reason I
give for it is this and also there is another unconnected reason which I decide in A’s
favor.

This occurred in the CA case of:

Turner v London Transport Executive

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The traditional answer is that both statements are ratio. However, later judges do not
follow a consistent line; some may relegate the ratio to be an obiter statement.

This technique enables the later judges in lower courts to re-assess the ratio of an
earlier case:

Great Peace Shipping , the Court of Appeal re-assessed the words of Lord Atkin in
the famous HOL’s case Bell v Lever Bros and concluded that Lord Atkin had
proposed two rationes, the first of which was based on very weak authority and so could
be ignored in favor of the second ratio.

Choosing between ratio and obiter

Donoghue v Stevenson:

Mrs Donoghue and a friend went into a café, the friend ordered ginger beer and
ice cream. When her friend poured beer over the ice cream, a decomposed snail
fell out of the bottle. The bottle was dark opaque so that the contents could not be
detected.
Due to this, Ms Donoghue suffered gastro-enteritis and nervous shock. Her cause
of action was negligence and she was claiming damages for her loss against the
manufacturer. (Under contract law, she could not bring a claim against the café
owner because she had no contract with him, nor had he been negligent)

The HOL’s upheld her claim, Lord Atkin said:

That a manufacturer of products will be liable for want of reasonable care if he
sells them in a form which shows they are meant to reach the ultimate consumer
in the same form as when they were manufactured (with no reasonable possibility
of intermediate examination) and if he knows that the absence of reasonable care
will cause injury)

Grant v Australian Knitting Mills

Grant purchased two underpants from Australia. He contracted sever dermatitis

owing to excess of sulphites in the garments which should have been
removed by the manufacturing process. Due to which he was ill for a year.

He sued the retailer for breach of contract and brought a negligence action
against Australian Knitting Mills.

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Grant won the claim under breach of contract and also the claim for negligence,
following the principles laid down in Donoghue v Stevenson.

‘Exploding underpants’ and dead snails are not the same thing.
The Privy Council stated that Donoghue v Stevenson could be applied only where
the defect is hidden and unknown to the consumer; but that in Grant the
chemical in the underpants represented a latent defect equivalent to the snail in
the opaque bottle.

Obiter Statements:

In Donoghue, Lord Atkin made a number of observations about liability for

negligent acts. One observation was that one owed a duty of care not to injure
ones ‘neighbour’ – a person so closely affected by ones acts that one must take
reasonable care not to injure them. This is an obiter statement because it
does not directly relate to the facts.

A later court may anyway decide what was said by a judge in the prior case was
unnecessary to the decision and therefore was not part of the decision. This
‘reassessment’ is one of the devices used to overcome the binding
element of the precedent.

A judge can decline to follow anything that is not the ratio.

One man’s obiter may be the next man’s ratio to a case:

Lord Atkin’s ‘neighbour principle’ was not an irrelevant statement; rather it was
used by later judges to form the basis upon which the law of negligence was to
develop. From a case about dead snails the ‘neighbor principle’ has been
extended to consumer items, industrial accidents, road accidents, misstatements,
and many other areas.

now discuss the ECHR and Lord Irvin’s speech.

THE ECHR AND UK SUPREME COURT
The ECtHR is an international court sitting in Strasbourg and does not fit neatly
into the system of precedent. The relationship between the ECtHR and the House
of Lords/Supreme Court has been the subject of some debate in England in
recent years and the subject of a number of judicial speeches. In several Supreme

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Court cases the judiciary have commented on the extent to which the UK
Supreme Court is, or is not, bound by decisions of the ECtHR. NOW COME
LORD IRVINE’S.

____________________

Boundaries of Judicial Law making:

McLoughlin v O’Brien:

This case raised question regarding the relationship of the judiciary and the legislature.

Lord Scarman argued that the judge had a jurisdiction over common law that ‘knows
no gaps’.

In creating new law, the judicial reasoning begins from ‘a baseline of existing principle’.
The judge works towards a solution that can be seen as an extension of principle by
process of analogy.

For Lord Scarman, this is the ‘distinguishing feature of the common law’: the judicial
creation of new law, as the justice of the case demands.

This process may involve policy considerations; the judge can legitimately involve
himself in the process, provided the primary outcome is the formation of new legal
principles.

Where the formation of principles involves too great an intrusion into the field of policy,
the judge must defer to Parliament:

“… by concentrating on principle the judges can keep the common law alive, flexible
and consistent, and can keep the legal system clear of policy problems which neither
they nor the forensic process which it is their duty to operate, are equipped to resolve.
If principle leads to results which are thought to be socially unacceptable, Parliament
can legislate to draw a line or map out a new path”

This argument demarcates the role of judges and that of Parliament. Judicial
interpretation keeps the common law flexible and responsive to change, and defers to
Parliament on those issues with which the courts are not well equipped to deal.

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Where the dividing line falls between matters of principle or policy is not so
crystal clear, we can refer to another aspect of Lord Scarman’s argument:

“The real risk to the common law is not its movement to cover new situations and new
knowledge but lest it should stand still, halted by a conservative judicial approach. If
that should happen, and since the 1966 Practice Direction of House it has become less
likely, there would be danger of the law becoming irrelevant to the consideration, and
inept in its treatment, of modern social problems. Justice would be defeated. The
common law has, however, avoided this catastrophe by the flexibility given it by
generation of judges”

This appears to describe the common law judge as the guardian of the conscience of the
common law. The judge is charged with the development of the law in such a way that
its principles remain coherent as it develops and adapts itself to changing social
conditions. Thus the flexibility of the common law is an element of what makes it just.

However, it is important to note that flexibility is inseparable from the ‘risk’ of

‘uncertainty in the law’.

Lord Scarman argues that justice can demand a degree or loss in certainty of law,
however the law has to respond to advances in medicine, technology etc.

Following cases illustrate the role, legitimacy and concerns of judicial law-
making:

One of the best examples of judicial creativity:

Regina v R

The HOL’s determined that a husband could be held guilty of raping his wife. This
involved a particularly bold interpretation of the Sexual Offences (Amendment) Act
1976 which would otherwise seem to perpetuate the husband’s exemption to a charge of
rape.

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Lord Lane asserted that a literal interpretation would not solve the problem and a
‘radical’ solution would be necessary. He agreed that such powers go beyond the bounds
of judge-made law and trespass on the province of Parliament. To change a rule of such
long standing, despite its emasculation by later decisions, is a task for the legislature
and not the courts. There are social considerations to be taken into account, privacy of
marriage to be preserved and questions of potential reconciliation to be weighed which
make it an inappropriate area for judicial intervention.

S v H.M. Advocate would appear to be on Lord Lane’s side.

The conclusion of the argument is compelling:

It seems to us that where the common law rule no longer even remotely represents what
is the true position of a wife in present day society, the duty of the court is to take steps
to alter the rule if it can legitimately do so in the light of any relevant Parliamentary
enactment”

R v Clegg:

This case represents the circumstances in which a judge will refuse to legislate. In this
case the HOL refused to alter the law in relation to the reduction of a charge of murder
to one of manslaughter. Stating that it was a matter that required legislation by
Parliament, Lord Simon acknowledged in this case that judges do make law but added
that they are not to do so where the case raises policy concerns. Lord Lloyd argued
that unlike R v R the issue raised by this case was one that needed Parliamentary
legislation.

(History showed that parliament had avoided addressing the issue)

Nicklinson and Lamb v Ministry of Justice[2013]

This is a recent case where the judiciary has refused to step in, even though they
perceived the argument for a change in the law. The case concerned the legal ban on
voluntary euthanasia. The appellants both suffering from permanent and catastrophic
disabilities, wanted to be helped to die at a time of their choosing. Neither was
physically capable of ending their lives without help and both argued that as a matter of
common law and the ECHR anyone helping them to end their life should not be subject

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to criminal consequences. However the current law is that those providing such
assistance will be committing the offence of assisted suicide contrary to the s.2(1) of the
Suicide Act 1961 if they merely assist a person to take their own life. The COA declined
to rule in the appellants favor. The Lord Chief Justice made it clear that this is not an
issue which the courts should be legislating.

The case went on appeal to HOL which reaffirmed that this is the matter for the
Parliament to decide and not for the judiciary.

Curry v DPP

The case concerned the concept of doli incapax, or the presumption that a child between
10 and 14 was incapable of committing a crime. The HOL refused to abolish the rule,
arguing that it was for Parliament to legislate on the matter.

A number of Acts showed that it was still necessary for the prosecution to show that the
child knew what s/he was doing was ‘seriously wrong’. Although this policy had met
with objections and criticism, this was not enough to justify judicial legislation.

Again this begs the question of where the line between judicial intervention and
Parliament lies.

Lord Lowry draws support from R v Kearley:

(1)If the solution is doubtful, the judges should beware of imposing their own remedy.

(2)Caution should prevail if Parliament has rejected opportunities of clearing up a

known difficulty or has legislated, while leaving the difficulty untouched.

(3)Disputed matters of social policy are less suitable areas for judicial intervention than
purely legal problems.

(4) Fundamental legal doctrines should not be lightly set aside

(5) Judges should not make a change unless they can achieve finality and certainty.

The grounding idea appears to be deference to Parliament when the ‘solution is

doubtful’ or Parliament has already considered the issue and refused to legislate. There
is also a presumption against changing the law; and change should only come when it
brings with it ‘finality and certainty’.

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