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Doctrine Of Precedent Fundamental Principle Of English Law Law Essay

What is the doctrine of precedent? The doctrine of precedent is a form of reasoning and decision-making formed by case law. If a higher court has made a significant legal point in one case, it would be considered as binding in later courts. In order to understand this doctrine more clearly, it would be necessary to examine the hierarchy of the English Courts. The House of Lords holds the highest position, any decision made by them, would be binding to lower courts which filter down to the Court of Appeal, to the Crown Courts and County Courts. This is otherwise recognised as the doctrine of stare decisis, which means standing by what has been decided. This doctrine is a fundamental principle of English Law. The use of precedent is vital to the decision making process of the courts.

The doctrine of judicial precedent is based upon stare decisis meaning to stand upon previous decisions. Under this doctrine legal decisions made by judges in the higher courts set a precedent, and have to be followed in future case with similar facts by judges in lower courts. Treating all cases alike ensures equal treatment and keeps the law consistent. Judges apply law to the facts of the case and will then make a decision based on the facts of the case. The legal reason for a judge's decision is called a ratio decidendi; he will state the ratio decidendi in his final judgement. This ratio forms a binding precedent, which will have to be followed in future cases of similar facts. For example, In Donoghue v Stevenson, the claimant suffered food poisoning after drinking from an opaque bottle of ginger beer which contained a dead, decomposing snail. This is one of the most famous cases in British legal history. The decision of the House of Lords founded the modern tort of negligence both in Scots law and across the world in common law jurisdictions. The case originated in Paisley, but the House of Lords declared that the principles of their judgment also applied in English law. It is often referred to as the “Paisley Snail” or the “snail in the bottle” case. Lord Atkin made it clear that the ratio was not to be limited to cases involving snails in ginger-beer bottles.

” [A] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.”

However, courts have extended the ratio of Donoghue v Stevenson to include allsorts of items purchased by consumers. As they have extended category of persons who are potentially liable.

The precedent has the advantages and the disadvantages. One of the advantages is that the precedent is time-saving so is very efficient. It saves time the judiciary, lawyers and their clients and in this way it saves them money in court expenses because they can apply to their solicitor for guidance as how their particular case is likely to be decided in the light of previous case on the same points. Another advantage is certainty. Lawyers and clients can predict the outcome of a case based in the previous judicial decisions. Flexibility is referred to the fact that judges can manipulate common law and they don’t have to wait for Parliament to enact legislation. Flexibility is achieved through the possibility of previous decisions being overruled or the possibility of a later court extending the effective ambit of a precedent.

The last advantage is Fairness. The cases are not subject to the whim of the individual judge. This aspect of justice justifies the decisions that are taken in particular cases.

On the other hand the precedent has also its disadvantages. One of them is uncertainty and is referred to the f act that the degree of certainty in undermined by the number of cases that have been reported and can be cited as authorities. An element of uncertainty was highlighted by James Richardson, the editor of Archbold the leading practitioners text on criminal law who has claimed that the lack of experience of some judges in the Criminal Appeal Court is compounded by an apparent willingness, on occasion, to set aside principle in order to do what the court feels to be right in the individual cases.

Another disadvantage is inflexibility for example the possibility of rape within a marriage and is recognized in the case R v R (1992). The possibility that the law in relation to any particular area may become ossified on the basis of an unjust precedent with the consequence that previous injustices are perpetuated.

The last disadvantage of the precedent is that it is unconstitutional. The judiciary is making law rather than restricting themselves to the role of just applying it. The judges must state what law is and they don’t have to do it.

The case R v R (1992) was an example the fixity of the precedent. The crime was a sexual offence that was rape. The husband and the wife were living apart. The husband was attempting sexual with his wife against her will. Whether husband immune from the charge of attempted rape. The defendant married his wife in 1984. As a result of marital difficulties the wife left the matrimonial home in 1989 and returned to live with her parents, informing the defendant of her intention to petition for divorce. The defendant also communicated to the wife his intention to "see about a divorce." While the wife was staying at her parents' house, the defendant forced his way in and attempted to have sexual intercourse with her, in the course of which attempt he assaulted her. He was charged on indictment with rape and assault occasioning actual bodily harm. The judge rejected his submission that by virtue of section 1 (1) of the Sexual Offenses (Amendment) Act 1976, the offense of rape was one which was not known to the law where the defendant was the husband of the Alleged victim. He thereupon Plead Guilty to attempted rape and assault occasioning actual bodily harm and was convicted. On the defendant's appeal against his conviction of attempted rape, the Court of Appeal (Criminal Division) dismissed the appeal. Dismissing the appeal, that there was no longer a rule of law that a wife was deemed to have consented irrevocably to sexual intercourse with her husband, and that, therefore, a husband could be convicted of the rape or attempted rape of his wife where she had withdrawn her consent to sexual intercourse; that section 1 (1) of the Sexual Offenses (Amendment) Act 1976 did not give statutory recognition to and perpetuate the former rule, and that, accordingly, the defendant's conviction would be upheld.

There are two types of precedent. The first is binding precedent that must be followed and the second one is persuasive precedent that is followed at the discretion of the courts.

Ratio decidendi that is understood as the statement of the law applied in deciding the legal problem raised by the concrete facts on the case is a binding precedent.

Obiter dictum is the statement of law that is not an essential part of the ratio decidendi and do not form part of e binding precedent. This is a persuasive precedent and it can be taken in consideration in later case if the judge considers it appropriate.

The precedent has a practical importance. This can be seen in the case of

Fairchild v Glenhaven Funeral Services Ltd (2002). The three appeals dealt with by the House of Lords involved employees who had been exposed to asbestos at work and had subsequently contracted mesothelioma (a form of cancer caused by asbestos exposure). In each case the employee concerned had been exposed to asbestos by more than one employer during his working life. This made it difficult for the claimants to establish that any particular employer's negligence had caused the mesothelioma, because medical science does not know exactly how asbestos causes the disease. Only a matter of days before the House of Lords was due to hear the appeal a consortium of insurance companies, which would have to provide any recompense in the final analyses, offer to settle the present cases on a voluntary basis and set up a compensation scheme for the hundreds of other claimants who were waiting for the outcome of those cases. The point was that the payments would have been significantly less than if the claimants won the case in the House of Lords. The representative of the claimants stated that the settlement scheme was a manipulation to the judicial process. This was the objective to ensure that the decision of the Court of Appeal remains intact. The representative of the insurers stated that it was not cynical but it was practical.

This sort of maneuvering also occurs in relation to trade unions or civil right cases, where lawyers deal with such issues to ensure that potentially ground breaking issues are argued in relation to stronger cases rather than weak ones. The practicality is that once a positive precedent is established in a strong case it can be extended to a wider area.


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