Judicial precedent — common mistakes

In essay questions evaluating precedent, demonstrate balance. For every advantage like 'certainty', offer the counter-argument of 'rigidity'. Use specific cases to illustrate your points. For example, use Donoghue v Stevenson to show the creation of an original precedent and R v R to illustrate the overruling of an outdated one.

No, they are distinct legal terms. 'Reversing' occurs within the same case when a higher court overturns the decision of a lower court on appeal. 'Overruling' happens in a different, later case when a senior court decides that the legal principle laid down in an earlier case is wrong and should no longer be followed.

Absolutely not. The doctrine of stare decisis and the court hierarchy are rigid on this point. The Court of Appeal is bound to follow all decisions of the Supreme Court, even if it feels a decision is outdated or was wrongly decided. It can only express its disapproval and hope the case is appealed to the Supreme Court for review.

Not at all. While an obiter dictum is not binding, statements from senior judges (especially in the Supreme Court) are highly persuasive. They often signal the future direction of the law and can be adopted as the ratio decidendi in a later case. Lord Atkin's broad 'neighbour principle' in Donoghue v Stevenson is a classic example of a persuasive obiter statement that became foundational to the law of negligence.