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Circumstances Courts Identify A Binding Precedent Law Essay

In light of the above statement in seeking to analyse the circumstances in which courts identify a binding precedent and discuss the extent to which they may depart from it, this essay will first look to recognise the value of binding precedent and its development in the English common law legal system in practice. This will mean looking to consider the application of the principle of binding precedent in the common law courts decisions through an evaluation of examples that have arisen in this regard to better illustrate the points made. Moreover, it will also be for this discussion to then consider the exceptions to the rule of binding precedent that have been developed through both the Court of Appeal and the House of Lords. Finally, this essay will conclude with a summary of the key points derived from this discussion with a view to seeking to analyse the circumstances in which courts identify a binding precedent and discuss the extent to which they may depart from it.

The principle of binding precedent (stare decisis) is considered to be central to the common law legal system because it found that one court's decision would be binding on others where cases are considered that involve similar facts and issues. [1] However, although binding precedent first arose as a judicial process during the thirteenth century, it was only in the sixteenth century that any certainty or consistency was bought to bear as the principle of binding precedent was reaffirmed as the common law system's foundation derived from the decisions of the judiciary through their work in the courts. [2] Many of these decisions have become important, including Shaw v. DPP [3] regarding the corruption of public morality and Donoghue v. Stevenson [4] regarding the law of negligence. But, although all decisions of the higher courts are binding upon all those courts that are recognised as lower in the judicial hierarchy in the English legal system, [5] the House of Lords is not considered to be strictly bound by any of its prior decisions. [6] However, decisions of the European Court of Justice (ECJ) serve to bind all English courts including the House of Lords [7] - although the decision of a court that is reached in another country like France or Italy is usually considered to be a ‘persuasive precedent’ to help the courts in this country reach a decision. [8] 

Nevertheless, some exceptions were recognised in Young v. Bristol Aeroplane Co Ltd [9] regarding the Court of Appeal because – (i) when having to deal with two of its own conflicting decisions, it is for the Court of Appeal to select which to then follow; (ii) the Court of Appeal is not bound to follow any earlier decision that is inconsistent with the House of Lords; and (c) the Court of Appeal also does not have to follow a decision without accounting for either legislation or a binding judicial precedent. [10] In addition, although it is arguable there is no difference in how the principle of binding precedent is applied in the Court of Appeal's criminal and civil divisions, in the event that an individual’s liberty is at stake, binding precedent is not necessarily followed in the same way. [11] But, prior to the announcement of the 1966 Practice Direction, unless Parliament was willing to intervene through the implementation of new legislation, any House of Lords decision was considered to be binding on all courts at that level and below in the judicial hierarchy [12] – except in the event the matter could be taken on to the ECJ or the European Court of Human Rights. Therefore, in relation to judicial precedent, this Practice Direction reflected back upon the very essence of binding precedent. The reason for this is that it has been recognised that there is an all too apparent need for the common law decisions of the judiciary through the courts case law's development to be both certain and flexible since it should always be possible for the decisions of the judiciary to be removed or varied. However, whilst the decisions of the judiciary are included as part of the way in which the principle of binding precedent is understood, the decisions of the House of Lords can prevent or at least seriously impede the chance of change in relation to the development of the law in a particular area of the legal system. [13] 

The House of Lords is now able to look to depart from its own earlier decisions, however. This is because “too rigid adherence to precedent may lead to injustice … and also unduly restrict the proper development of the law. They propose . . . to depart from a previous decision when it appears right”. But, although this approach was considered to be sensible, to say it was overdue was a significant understatement. Moreover, whilst there is no denying these kinds of departures are few and far between, both the law’s continuity and stability would suffer if this kind of departure were found to be more frequent. [14] With this in mind, it has come to be hoped such steps would serve to allow the judiciary to move beyond principles leading to injustice in the future in moving with social and economic conditions ongoing changes. [15] A particularly significant example of where the House of Lord has used the Practice Direction (Judicial Precedent) [16] to depart from the principle of binding precedent was in R v. Shivpuri [17] in seeking to depart from the earlier decision in Anderton v. Ryan [18] distinguished on the facts regarding the appellant’s case in seeking to evade and defeat the custom authorities domestically. [19] In addition, in President of India v. La Pintada Compania Navigacion SA [20] Lord Brandon's judgement also made significant reference to the aforementioned Practice Direction (Judicial Precedent) [21] because it allowed the House of Lords to move away from its previous strict adherence to the principle of binding precedent by finding that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development”. [22] 

In seeking to respond to the idea the House of Lords should use the Practice Direction (Judicial Precedent), [23] Lord Brandon found in President of India v. La Pintada Compania Navigacion SA [24] “if the legislature had not intervened twice in this field since the London, Chatham and Dover Railway case . . . and if the Court of Appeal had not limited the scope of that case by its decision in Wadsworth v. Lydall ( . . . ), I should have thought that a strong … case would have been made out for your Lordships’ House . . . to depart. But . . . since the legislature has made the two interventions . . . the departure sought by the respondents would not now be justified”. [25] This understanding of the law was then only further supported by the decision in Gibson v. Government of the United States of America [26] where the doctrine of precedent was not absolute and the Privy Council should also exercise the power it has to depart from binding precedent if it concluded one of its own decisions was incorrect even if it could not have impeded the development of the law. [27] Therefore, decisions like President of India v. La Pintada Compania Navigacion SA [28] could be reflective of the idea no two cases are the same. However, the theory of binding precedent is based upon considerably more than facts similarity between cases since it is more concerned with the law and the way it is decided. When considering the similarity of the law in different cases, there is a need for a dispute to be evaluated by referring to citations and legal rules appropriately like a motor vehicle [29] or even someone’s underwear [30] because what is significant is the legal principle involved – the ratio decidendi – that constitutes the binding precedent. [31] 

However, there is still a need to appreciate that it is not always that easy to be able to recognise the ratio decidendi and distinguish it from the obiter dicta - including R v. Caldwell [32] – that opposes greater flexibility and certainty. [33] In addition, it has been recognised that an earlier court decision is only binding in the future if the legal principle involved is the same and the facts are similar according to the judge when looking to exercise their discretion in a particular case. This effectively means that distinguishing a case is used by the judiciary to be able to avoid an earlier court decision's consequences, but what is considered reasonably distinguishable is dependent upon the cases and who is party to it because some judges have been recognised as being more likely to ‘distinguish’ cases. For example, in Jones v. Secretary of State for Social Services, [34] it was recognised by Lord Reid in his judgement that “where an existing decision is disapproved … courts tend to distinguish it on inadequate grounds” - although in Olympia Oil v. Produce Brokers [35] it was recognised by Lord Justice Buckley that it was not possible to adduce any reason to show why the decision he was about to pronounce was right, but he was still duty bound to follow authority.

Nevertheless, it is possible for a higher court decision to overrule a decision which had already been reached in a lower court where the law was not correctly applied illustrated by the overruling of Anderton v. Ryan [36] by the House of Lords in R v. Shivpuri, [37] regarding the Criminal Attempts Act 1981. It is also possible for a higher court decision to overrule a decision already reached in a lower court where the higher court considers the rule of law to not be desirable any longer illustrated by the decision in Miliangos v. George Frank Ltd [38] that overruled the idea judgements could not be given in foreign currency. In addition, it is also possible for the judiciary to decide a previous decision had been reached per incuriam. For example, in the case of Morelle v. Wakeling [39] where it was recognised in Lord Evershed's judgement that “the only case in which decisions should be held to have been given per incuriam are those … given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority”. Moreover, in Secretary of State for Trade & Industry v. Desai, [40] Lord Justice Scott's judgement found the decision must not only have involved a manifest error, but also that leaving the decision standing would lead to significant injustice. However, despite the recognition of this rule under Secretary of State for Trade & Industry v. Desai, [41] it was found that the Court of Appeal is unable to ignore decisions of the House of Lords. This is because, by way of illustration, where Lord Denning, held in his judgement in the case Cassell v. Broome [42] the House of Lords’ decision in Rookes v. Barnard [43] was decided on a per incuriam basis he was rebuked sternly for this action contrary to the more general recognition of the value of binding precedent.

To conclude, it is clear that the judiciary still generally look to adhere to the principle of binding precedent under the common law since it is necessary for there to be a balance between certainty and flexibility in this area because it was necessary for there to be some limitation to the application of binding precedent. The main reason for this is, although all of the courts that operate in the English legal system have generally sought to adhere to the view earlier decisions would bind future sittings of those courts and those below them, there has always been an all too apparent need for the House of Lords to have the flexibility to recognise differences in facts and move away from its previous decisions as and where necessary. On this basis, it is arguable that the implementation of the Practice Direction (Judicial Precedent) [44] served as a significant move to allying increased flexibility with ongoing variants in modern society. [45] Therefore,, although such instances are rare, these kinds of cases do occur so as to then provide the principle of binding precedent under the common law English legal system with even greater significance than it had previously had when it was first conceived many years ago. [46] 

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