Doctrine of Precedent–cont’d

There are several more things that we need to know about the Doctrine of Precedent. We have already learnt that higher courts bind lower courts with their judgments. The reasoning behind these judgements are important since they formulate the principles upon which the precedent lies. The reason is known as ratio decidendi (the reason for the decision) although you may see it referred to as simply "ratio".

It must be pointed out that in any decision (as you can see in the previous post where I had posted a decision from the Supreme Court), the ratio is not clearly identified – there is no fixed section marked as ratio or ratio decidendi. It is upon reading the entire judgment that other judges can identify the ratio and the principles contained therein.

The judgment may also say other things "in passing" and this is known as orbiter dictum. While the ratio is binding, the orbiter is not. But it is considered persuasive. "In a court opinion, obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument"".

* Typically, you will see the spelling of judgment without the "E" before the "M". While judgment (without the "E") and judgement (with the "E") are both correct spellings, in law it is usual and more common to use the former spelling. Therefore if you constantly use the spelling as you see it here – judgment – you will never be wrong.

Reading case law and terminology:

"The final part of this unit will use some terminology specific to reading case law. You will become familiar with these terms and their meanings while dealing with your skills materials. However, it is important to understand the terminology when you are dealing with the subject matter too. Here is a brief explanation of some of the terms used.

Affirmed – this term is used when an appeal court agrees with the earlier decision made by the lower court.

Applied – this term is used when a court finds itself bound by an earlier precedent and has applied the earlier case and reasoning to a subsequent case.

Approved – this is used when a superior court agrees with a lower court’s decision.

Considered – when a court has considered a case but not applied it to the case in question, the court uses this phrase to demonstrate that they have considered it but it has not been applied.

Distinguished – this phrase is used when a court is bound by a previous decision but does not wish to apply it in this instance. The court will find some differences which will allow them not to follow a particular case.

Overruled – this phrase is used when a court of equal or superior status rejects a decision of a court and applies a new decision.

Reversed – this is the opposite of affirmed. This phrase is used when a higher court has decided that a lower court came to the wrong decision."

© The Open University, 2014

Keep in mind that in 1966 (as we saw in the last post, paragraph 7 of the judgment) the House of Lords issued Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 in which the House of Lords departed from the former convention of binding itself. This is the text:

Their Lordships regard the use of precedent 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 former decisions of this house as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement 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.

Next, I will write on the skills units 1 and 2.