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Judicial Precedent

Common Law Reasoning (Brickfields Asia College)

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2017 Q 5
The doctrine of precedent has a dual function. It provides an image of certainty,
consistency and clarity while allowing the common law to adapt and develop.
Discuss.
The doctrine of precedent has been called ‘the cornerstone of common law
system’. The highlight of the essay will focused on the dual function which in relation to
the elements of certainty and flexibility within the doctrine of judicial precedent.
Judicial Precedent is a source of law where past decisions of judges create law for
future judges to follow. It also known as case law or judge made law. It is based on the
principle of stare decisis from Roman law with a twist to make it binding and it involves
treating like cases alike which means it only applies to similar facts. Judicial precedent
promotes certainty and predictability in the law which allows lawyer to give proper
advice to their client and citizens are informed of their rights and responsibilities. In the
past, the sole function of the court was to promote certainty, over times, it allows judges
to be flexible in order to develop the law to cope with changing social conditions and
correct errors in the law. Today, the higher court has dual function which are certainty and
flexibility.
Binding precedent is where a court must follow the earlier decision decided by a
higher court even though present judges do not agree with the legal principles. It involves
ratio decidendi which is the reason for the decision. It is the binding part to ensure
certainty and predictability in law. Persuasive precedent is the decision of lower court,
Privy Council and foreign court which is not binding. As it involves obiter dicta which
means things said by the way. As in Donoghue v Stevention, the neighbourhood
principle is the obiter to explain the ratio of duty of care. In novel situation, judges are
allowed to form new precedent for future cases to follow which show that the doctrine
are not totally rigid. In Re A (Conjoined Twins), the court first allowed the operation to
separate conjoined twins despite the parent’s objection. It is clear that within this
doctrine, categories have been developed to give judges flexibility in applying these rules
but at the same time uphold certainty.
Judicial precedent relies on the hierarchy of court and the efficient system of law
reporting. The court hierarchy is the institutional guideline for judges in applying the
doctrine of stare decisis in deciding cases. It can be broke down into horizontal and
vertical effect. In United Kingdom, the highest court is the Supreme Court (SC) formerly
known as House of Lords (HOL). Prior to 1966, the certainty in law was viewed as the
only function or important of the law and individual hardship would not be the reason to
depart. As in London Tramways v London County Council, Halsbury LC stated the
decision in the highest appellate court should be in final because it is in public interest to
ensure certainty in law. The rigidity in law may hinder the law for development and the
wrong or bad decision will be perpetuated. As in Gallie v Lee, it took over 60 years to
correct the error in Carlisle and Cumberland Banking Co v Bragg.

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However, Practice Statement 1966 was issued to allow House of Lords judges to
depart by overruling when it appears ‘rights to do so’. Lord Gardiner in Practice
Statements 1966 carefully laid down the guideline to strike the balance between certainty
and flexibility. It brought dual function to the doctrine of judicial precedent by evident of
the words ‘appears right to do so’ seems suggested that judges now can used it to find
flexibility when it is needed. Besides, he also states rigid adherence will lead to injustice
seems able to see that certainty alone was unable to develop law. However, the fact that
the judicial precedent is an indispensable foundation that House of Lords judges must
cautious with this new power indicates that certainty in law is still a prevailing virtue.
In Miliangos v George Frank (1976), the House of Lords used Practice
Statement 1966 to overrule the previous decision in Re United Railways of Havana
(1961) which concerned on the sterling rule for damages in UK court. The reasoning
behind was in 1960 the sterling was the strongest currency in the market. 16 years later,
when the Miliangos case was decided, there were other strongest currency in the market.
It can be seen that the House of Lords prepared to overrule in order to adapt the law to
changing economic or trade policy. With this case, the Practice Statement 1966 has
successfully cured the problems of rigidity and injustice in the doctrine of judicial
precedent.
In Shaw v DPP (1962), judges introduced a new offence of corrupting public
moral that didn’t exist under statute. In Knuller v DPP (1973), the court refused to
overrule despite Shaw decision was wrong. It was stated that if they were going to use
Practice Statement 1966 to overrule Shaw it will be retrospective in nature. The decision
of Shaw were followed by 30 other cases, if judges overrule all of them then it would
affect certainty in law. Conversely, in R v Shivpuri (1986), the House of Lords overruled
the decision in Anderton v Ryan (1985). The court are willing to overrule because the
cases were only one year apart and the certainty in law even though so desirable, where
there is error in law, the sooner it is corrected it is better.

Both civil and criminal division are bound by own previous decision, but there are
three exceptions laid down in Young v Bristol Aeroplane: (i) where there are two
conflicting decision in past Court of Appeal cases, the court can choose which to follow
and refuse; (ii) where there is a decision effectively overruled by the House of Lords they
must follow House of Lords decision; or (iii) where the decision have been made per
incuriam. Lord Evershed in Morelle v Wakeling states “the decision should be held in
given per incuriam are those decisions given in ignorance or forgetfulness of some
inconsistent statutory provision”. In other words, where there is manifest slip or error. In
William v Fawcett, the court refused to follow where misunderstanding of the County
Court rules dealing with procedure for committing to prison those who break court
undertakings. It can be seen that there is also dual function in the Court of Appeal
however the three exceptions only provide limited flexibility for Court of Appeal to
depart.

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The question arises if the three exceptions do not exist, can the Court of Appeal
say that it is not bound by Young v Bristol Aeroplane. Lord Denning has always
attempted to established greater flexibility for the Court of Appeal. As in Davis v
Johnson, the case deal with enforceability of an injunction by wife to exclude husband
from home premises. There were two previous Court of Appeal cases which are BvB and
Cantliff v Jenkins where the court does not allow injunction because husband and wife
are joint tenants. There is no conflicting between these cases nor any exceptions applied,
the Court should bound by the previous decision. However, the court refused to be bound
and departed from two previous cases. Lord Denning gave the reasons for more
flexibility in Court of Appeal such as a delay in the case would severely harm the safety
of the claimant. It amounts to saying that woman can be beaten up until the House of
Lords give decision. In reality, many people only could afford the Court of Appeal.
Therefore, it could be treated as the final court for many cases. Lord Denning further
argued that the position before 1875, Court of Appeal was the highest court and House of
Lords was then created because the government realised it would be unfair if there was
only a single chance to appeal. Furthermore, Court of Appeal bound by Court of Appeal
is not because the case of Young v Bristol but due to the respect to the Judicial
Committee.
House of Lords overruled these two cases but criticised Lord Denning failed to
follow the rule in Young v Bristol. As Lord Diplock states ‘in the hierarchical system of
court, it is necessary for each lower tier including the Court of Appeal to stand by the
guidelines laid down in each level of court’. Buckley LJ in Olympia Oil v Produce
Brokers states they are bound by the authority and have duty to follow even they
disagree with it. It clearly shows that there was no real dual function in the horizontal
aspect of Court of Appeal by evidence of Lord Denning’s campaign in Davis v Johnson.
It is submitted that the Practice Statement 1966 only can be used by House of Lords,
therefore the Court of Appeal still remain the same with limited flexibility given by
Young v Bristol. The question arises whether it is necessary to look at the old law in 1966
when time has passed to 21st century.
The Supreme Court decision is bind on the Court of Appeal decision. However, in
facts, some cases like Schorsch Meier Gmbh v Hennin, the Court of Appeal refused to
follow House of Lords decision in Re United Railway of Havana. However, the House
of Lords held the change in stability of sterling was a good reason to depart but Court of
Appeal has no right to overrule House of Lords decision due to certainty in law should be
protected. Therefore, the justice need to wait until Miliangos v George Frank, a House
of Lords case to overrule it even it is in same direction as Schorcsh. However, there are
argument on the Court of Appeal should not have same flexibility because there will be
no certainty if too much of flexibility is allowed and it would undermine the system of
precedent. The lower court will be in confusion as judges in County Court would not
know which Court of Appeal cases state the right one. It clearly show that Lords in
Supreme Court are not ready to allow them to have a tool similar to Practice Statement
1966 therefore the problem in Court of Appeal has not resolved yet.

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The recent case of R v James and Karimi which held the Privy Council decision
in AG for Jersey v Holley effectively overrule the earlier decision of Supreme Court in
R v Smith. This is supported by the reason of half of the judges in the Privy Council was
made up of UK House of Lords judges and the law on provocation as a defence for
murder in Jersey same as law in England. However, this attracts some criticism of Court
of Appeal should not take it as a license to decline to follow a decision of House of
Lords.
In conclusion, dual function of flexibility and certainty only appear in the
Supreme Court as it has Practice Statement 1966 to overrule own past cases and the tools
of departure. The Court of Appeal only have little flexibility given by exceptions in
Young v Bristol therefore it could be said that there is no ‘real’ dual function in Court of
Appeal. Therefore, it is submitted that the lower court only have sole function which is
the certainty as they are bound by the decision in higher court unless the facts of cases
can be distinguished or a novel situation.
*Practice Statement 1966 only cure the defects of judicial precedent when it is in the
House of Lords. In facts, there were many cases only could afford until Court of Appeal
but the Court of Appeal have no such flexibility as House of Lords then the issue has not
been settled yet.

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