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Doctrine Of Precedent Important Role English Legal System Law Essay

The Doctrine of Precedent also known as stare decisis is a concept that has an important role to play in the English Legal System, especially as it strengthens the hierarchy of the courts. It is also said that this principle of binding precedent has been held to prevent litigation.

Consequently, the Doctrine of Precedent acts as a guidance and justification for a judge hearing a particular case in a court without having to use his own perception or legal rules to give a verdict of the case before him. The fact that the House of Lords occupies a vital position in the structure and jurisdiction of the courts, any decision made by them would be considered binding to any higher or lower courts. Therefore, once a question has been answered by a court a similar question from other cases, must produce an equal if not same answer from any court according to that jurisdiction.

The decision of a judge may fall in two parts mainly the ratio decidendi and the obiter dicta. The ratio decidendi in the judgement signifies the ‘legal principles’ and the ‘rule of law’, which is the only binding part of the stare decisis. As for the judges they always make comments on cases, this is known as the obiter dicta meaning ‘things by the way.’ We will always encounter these main words while dealing with judgements of cases. The basic principle of the common law has not lessened, which means that the faithful attachment and the privilege of using the doctrine of precedent is still the same. Hence, the main legal point that has to be concluded is the ratio. The doctrine of precedent demands that ‘like cases should be treated alike.’

In, [1] Broome v Cassell [1972] the case about a naval disaster whereby the claimant appealed against the exemplary damages had been assessed in a libel case. The first aspect was in respect of the 60 proof copies of the book and the second one was the hardback edition. The claimant was a retired captain in the Royal Navy and the defendants were the author of the book namely David Irving and the appellants was Cassell & Co Ltd. The Court of Appeal took an unusual course in making the judgement. They had disregarded the decision of the House of Lords, as they believed that, their decision in the case [2] Rookes v Barnard [1964] was made per incuriam. As the doctrine plays a very important role in the English Legal System, any decision made by the higher court will be binding to all the lower courts as well as the Court of Appeal. Lord Hailsham stated as follows:

3“Decisions of the House of Lords are binding on the court to advise judges to ignore decisions of the House on the ground that they were decided per incuriam or are unworkable. Furthermore, (per Lord Hailsham Of St Marylebone LC and Lord Diplock) although it is open to an appellate court to decline to follow one of its own previous decision on the ground that it was decided per incuriam, the Court of Appeal is not entitled to disregard a decision of the House of Lords, nor is a judge of the High Court entitled to disregard a decision of the Court of Appeal, on that ground.”

In fact, it is generally believed that each and every thing has its advantages and disadvantages, so is it with the doctrine of precedent. The benefit of it is that it avoids judges in solving the same problem repeatedly in other cases. It also to some extent provides a degree of predictability in legal decision. As for the disadvantages, it is believed that the doctrine of precedent leads to judicial laziness and avoids the members of the judiciary thinking about other solutions in solving legal matters. Moreover, a Practice Statement was issued on 26 July 1966 by the Lord Chancellor (Lord Gardiner) and other law lords stating that:

4“…the House would feel free to depart from its own previous decisions when it appears right to do so.”

In the case R v James [2006] both the Doctrine of Precedent and the Practice Statement 1966 was discussed. The case was about two appeals which was heard together as each of them was based on the interpretation of section 3 of the Homicide Act 1957. The two accused Karimi and James were convicted of murder in two different courts. The first accused Karimi was convicted in the Central Criminal Court and was sentenced to life imprisonment with a minimal term of 11 years and James the second one in the Crown Court at Nottingham and he was sentenced to life imprisonment.

Furthermore, in R v James [2006] apart from tne Doctrine of Precedent, the Practice Statement 1966 of Lord Gardiner was also discussed as follows:

5“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 an, while treating former decisions of this House as normally binding, to depart from a 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, settlements 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.”

Besides the above statement of Lord Gardiner, the advice board of the Privy Coucil have stated in [6] Tai Hing Ltd v Liu Chong Bank [1986], that no one has the right to go beyond the Doctrine of Precedent, as once a decision has been made by the House of Lords no one should fail to follow the same path whenever a similar if not same case is dealt by any court. The same statement that was made by the Privy Council in the above case was referred in R v James [2006]


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