Revise Judicial precedent for Cambridge 9084 (1.1.5)

The doctrine of judicial precedent is underpinned by the Latin maxim 'stare decisis et non quieta movere', meaning 'to stand by things decided and not disturb the calm'. This principle dictates that courts must follow the legal rulings of previous cases where the material facts are sufficiently similar. The primary purpose of stare decisis is to ensure the law is certain, consistent, and predictable. This doctrine is operationalised through the rigid hierarchy of the courts in England and Wales. Decisions of the Supreme Court are binding on all lower courts. The Court of Appeal is bound by the Supreme Court and generally by its own past decisions. The High Court is bound by both superior courts, and its decisions bind the lower courts, such as the County Court and Magistrates' Court. Decisions of the Judicial Committee of the Privy Council are not binding but are highly persuasive.

Every judicial judgement contains two key elements: the ratio decidendi and obiter dicta. The 'ratio decidendi' (reason for the decision) is the crucial part; it is the legal principle or rule derived from the material facts of the case which is essential for the final outcome. This is the element that forms the binding precedent for future cases. For instance, in Donoghue v Stevenson, the ratio was that a manufacturer owes a duty of care to the ultimate consumer. In contrast, 'obiter dicta' (other things said) are remarks made by a judge 'by the way'. These are not strictly necessary for the decision and are not binding. However, obiter dicta from senior judges can be highly persuasive and may form the ratio of a future case, as Lord Atkin's wider 'neighbour principle' did.

Precedents can be categorised based on their effect and origin. An 'original precedent' is created when a judge decides a point of law for the first time, as there are no previous cases to guide them. A famous example is Airedale NHS Trust v Bland (1993), which established principles for withdrawing medical treatment. A 'binding precedent' is a decision from a higher court that must be followed in later cases. A 'persuasive precedent' is not binding but can influence a judge. Sources of persuasive precedent include decisions of lower courts, obiter dicta from senior courts, dissenting judgments, and decisions from courts in other common law jurisdictions (e.g., Australia, Canada) or the Judicial Committee of the Privy Council (JCPC). For the doctrine of precedent to function, there must be an accurate and reliable system of recording judgments. This is the role of 'law reporting'. Official reports like The Law Reports series are crucial for lawyers and judges to find the ratio decidendi of past cases.

While stare decisis promotes rigidity, judges have several tools to avoid following a precedent, which provides essential flexibility. The main method is 'distinguishing'. Here, a judge finds that the material facts of the case before them are sufficiently different from the facts of the precedent case, so the earlier ratio does not apply. For example, in Merritt v Merritt, the court distinguished the facts from Balfour v Balfour because the Merritt's agreement was in writing and made after they had separated. 'Overruling' is a more radical tool, used by a higher court (or the Supreme Court on its own decisions via the 1966 Practice Statement) to declare a legal principle from a previous case as wrong and no longer good law, as seen in R v R (Marital Exemption). The Practice Statement has been used sparingly, for example in R v G and R (2003) to overrule R v Caldwell on the meaning of recklessness. Finally, 'reversing' occurs when a higher court in the same case overturns the decision of the lower court on appeal. The Court of Appeal can also depart from its own decisions in limited circumstances, as outlined in Young v Bristol Aeroplane Co Ltd.

The doctrine of judicial precedent has significant advantages and disadvantages. Its main strength is certainty; the law is predictable, which aids legal advice and business planning. It also ensures fairness and consistency, as similar cases are treated alike. However, this can lead to rigidity, where bad or outdated precedents are difficult to remove, potentially perpetuating injustices until a case reaches a sufficiently high court. The system can be complex, with thousands of reported cases making it hard to identify the relevant ratio. Furthermore, legal development can be slow and haphazard, as it depends on an appropriate case being brought to court. This also raises constitutional questions about the undemocratic nature of judges making law, a role traditionally reserved for Parliament.