Case Law and precedent in the English Legal System

A domestic source of law : case law :

  • Case law : Law developed by judges through court decisions and opinions, as distinct from statute and other legislation.
  • Precedent : An act in the past which may be used as an example to help decide the outcome of similar instances in the future.

Case law is one of the distinctive natures of law of the English law system. We have to remember that case law and English law was built on the case law. Common Law is the law which comes from the royal courts.If we compared with statutory law it was built of the Common Law. Common Law is something at the heart of construction of EL.Case law is judgment law. It was built with the royal court. It’s still an important source of law but what is important to understand in case law it’sthe courts principles which are binding precedent.

Case law is a body of decision but one principle which helps building the case law is the doctrine of binding precedent (précédentobligatoire) which means like cases must be decided alike (de la mêmefaçon). That means that whenever the facts of the litigation are similar to facts of a previous case then the actual case should be decided according to the previous law. This idea is that when a case was decided like that you should be decided in the same way.

This system exists in the civil law system. This idea exists in all legal systems. This isn’t something specific in the English legal system. In consistency it’s an important element of justice. In that sense there is nothing particular in English law about such a practice. However what is particular is the idea of precedent has developed in a narrowed sense. The justice must look at earlier decisions. This doctrine of the obligation of justice to look at previous decisions is also called the doctrine of stare decisis.

Doctrine of stare decisis: this doctrine has built by precedent and doesn’t apply to all legal issues. There are matters of laws which are governed by case law where the doctrine is used and some matters are:contract law, tort law (responsabilitédélictuelle) and also to a certain extent property rights are governed by case law.

Which decisions are subject to the doctrine of binding precedent?

In reality this is not any one question but we have to answer 2 questions:

Which jurisdictions are subject to the doctrine of binding precedent? Hierarchy?

Which decisions by which jurisdictions?

However, we have to deal with a preliminary issue. How decisions get published and what is the report of these decisions.

A) A prerequisite: the reporting of judicial decisions:

It’s essential for the construction of case law. We find case law in the Law reports and as it is so important to have the reports of the case law that several reports are developed. There are many law reports in England; there isn’t one official law report. The report of case law was originally a private initiative. All the reports are published on a private initiative.

Hansard: the reports of the parliamentary debates. It’s different from what we have in France.

The abbreviations of some reports:

  • – Appeal Cases (AC)
  • -Ch is for chancellery division; Fam is for family division; QB is for Queens bench.
  • – Weekly Law Reports (WLR)
  • – All England Law Reports (All ER)

It’s important to have knowledge of English law. There is an official definition: this is “an account of case vouched by a barrister who was present at the hearing”. This barrister understands the case; it’s a guaranty of the quality of the report. He was present at the hearing because it was the way to know the judgment. Report is to report what it’s discussed during the hearing.

But nowadays, this notion of reports has changed because nowadays judgments are given immediately in royalty without being read out by the court. In this context, the function of reporter can be viewed as less important. However, English lawyers still considered their reporters as an important thing.

Reporters: “the workers bees of the law”.

How the editors select the decisions they want to publish? All decisions aren’t necessary reported, there is always a choice which is made by the editors which reporting a case. To the contrary of what happens in France, in England there is always a selection of cases which are important or not. And decisions report is important since courts expect to hear only reported cases or they take to account not reported cases. The selection has an impact.

Which law reports should be used in courts?

The courts need to know the private cases and the lawyers need to explain what private cases will be used. A practice direction : Citation of Authorities 2012.

How lawyers should present which kind of law report in their pleadings? There is a hierarchy which is made between the law reports. In first there is Official Law Reports. In this practice direction it is said that when a judgment is reported in an officially report which is made by a private council, only one report should be used and not another one. Reports published in Weekly Law Reports or the All England Law Reports. And if decisions aren’t reported in such law reports, they published in specialist report. The court decides the hierarchy of the reports.The hierarchy is made by the judges itself.

Abbreviations of the courts (neutral citation)

B) The hierarchy of courts:

ECJ: EU Law => European court of justice (in Luxembourg).

ECHR: European Court of Human Rights (CEDH) (in Strasbourg).

Both courts play a role in English legal system.

Supreme Court: before 2009, it was the House of Lords. Appeal courts on civil and criminal matters. It is the Supreme Court of both Scotland and NI.

Court of Appeal (civil/criminal): into civil and criminal decisions. These decisions may be brought before the Supreme Court.

High Court: it plays different roles. 3 divisions: QB div, Chancery div, Fam div. The first for criminal cases and the rest for the civil cases.It plays the role at sometimes the first instance but it can also be court of appeal for decisions given by other jurisdictions.

Crown Courts: serious criminal cases. The QB has an appeal role from this jurisdiction (criminal and civil). There is also the County Courts (civil).

There is Magistrate’s Courts which is a criminal and civil jurisdiction which decisions may go to the Crown Courts for criminal matters.

These decisions of all these jurisdictions bind themselves.

C) The vertical and horizontal dimensions of precedent:

1) Vertical dimension: higher courts bind lower ones:

It’s the simplest to understand. If a legal system is to have a doctrine of binding precedent it may see obvious that high courts will bind lowers courts. The vertical dimensions reassess few difficulties in practice. There were examples of decisions which didn’t follow a decision given by the high court. We can find some examples of non-obedience of decisions.

An exception to vertical dimension of precedent:

– Case of Court of appeal: Schorsh Meier GmbH v Henning [1975] 1 All ER 152. A dispute arose from (was expressed in currency). The question was:Should the court be entitled to express this judgment? And what for a currency (the only one to have legal) is it permissible. The House of Lords has previously decided in this decision : all English Courts should give her judgment.

– House of Lords : (moodle) in Re United

There must no used in currency. However, 2 judges of court of appeal thought that this rule was too old and not accurate for our times. They decided to rely on the change of circumstances to depart from this decision of the HL. In The decision Schorsh Meier they decided not to follow the decision of the HL. The justification not to follow the HL decisions was the changes of circumstances: the entry of England in EU and the crisis in 1970’s. One provision of the treaty of Rome provided that this provisions acclaiming should be able to claim in any currency of the… this case didn’t go before the HL.

=> 2 conflicting cases (CA/HL):

There was the decision of the HL and there was the decision of the court of appeal. Which decision should be follow? They decided to follow the decision of the HL but then, when the cases came before the HL, the HL decided to change its decision and decided that an English judgment maybe formulated expressed in a formal currency.

In another case: the same point arose: a contractbetween Swiss seller and English buyer. We have conflict of decisions.

It was a problem for first instance judges. The first instance judges decided to follow the HL decision when a question was again in a case.

Which decision should a lower judge follow?

HL :Miliangos v George Franck Ltd [1975] =>vertical dimension of binding precedent. Lord Simon criticized the first instance judge for following the HL saying that it is the duty of a subordinate court to give credence to the decision of immediately high court, not withstanding that it may appeared to conflict with the decision of the still high court.

Why is it a duty for the judge to follow the immediately high court? The decisions of the still high court must be assumed to have been correctly distinguished in the decision of the immediately high court. It is supposed that court of appeal decision has been to distinguish the previous decision of the high court. It’s an argument of hierarchy given by the HL.

Judge should stick to the hierarchy principle when they are confronted to conflicted decisions. For the HL that is important is to follow the hierarchy. First instance judge should follow the decision by the immediately superior court and not the high court because it is assumed that the court of appeal has understood, distinguished the case rendered by the HL.

2) Horizontal dimension: do courts bind themselves?

A decision of a court of appeal should bind itself.

A jurisdiction is bound by it on decisions.

=> Does the Supreme Court bind itself?

The mid-19th century the HL took the view that it will be bound by all his previous decisions. In 1861 the house changes his mind but the definitive statement of the position of the HL is usually taken from the speech of Lord Asbury in London Tramways v London County Council 1898. In this decision in 1898, the HL expressed the view that it was bound by his all previous decisions.This rule remains study for more than fifty years after. It’s a position very difficult to sustain for more than 50 years. But in 1866, it issued a practice statement where the HLassists the previous court free to depart from his own decisions. It’s interesting to note that this decision wasn’t made previously in a decision but in a practice statement. It should deal with only matter of practice rather than law.It’s argue that the question of the binding precedent it’s just a question of practice of law. Anyway in this statement the HL deciding to free itself but this statement should not be overestimate because in that statement which has written by Lord Gardner he wrote that the necessity and importance of the doctrine of judicial precedent is reaffirmed. But they acknowledged that this doctrine could read in back to time in justice in specific circumstances because it could restrict the proper development of the law by impeding the necessary evolution of law. But the text says depart from and doesn’t say other… The HL wish not to follow the precedent and not the other rule on decisions. The word use is departing from and no other ruling previous decisions. And they also said that this possibly to depart from previous decision should be exercised not too often. They should be specific reason to do.

This specific reason is that the earlier decision was influenced by the existence of conditions which no longer prevail and in modern conditions the law out to be different. Another reason to justify departing from previous decisions is the issue from public policy that is involved.

They want to sustain a certain legal certainty and they want avoid retrospectively the basis of contract law, tort law which are governed by case law. The HL also said that changes in the law should be preferentially come from the parliament because is it better equity to forty the consequences of the changes its act to law. The parliament can make instructions, can see what kind of changes new act will change in real life.

One procedural aspect:when lawyer think that precedent should be departing from then the composition of the issue they should be explaining why a change of precedent should be maid and they will be convinced to make this decision. The Supreme Court will be more judges who will decide if the decisions should be departed or not.

=> Does the Court of appeal bind itself?

The court of appeal is split in 2 divisions: civil and criminal div. The rules of precedent differ in some respect whether it concerns the civil or criminal div.

  • Civil division: as a principle the court of appeal is bound by its own decisions. This principle was set up in that case Young v Bristol Aeroplane, 1942. The case which gave in doctrine that the court of appeal bind itself. It tells the principle but also foresees 3 principles exceptions to this principle :

The first exception that is foreseen in this case is when court and counter to conflict decisions of its own. Two conflicting decisions and the court have to select one decision and so have to depart from the other one. Such a conflict should not appear since the court of appeal is bound itself but it might be that a conflict appear only later after the decisions was given that we realize it conflict with another one. The conflict isn’t seen in the first place. It has to see which rule of law is the better.

– The second exceptionarises when the HL of the SC makes a subsequent decision which is inconsistent with a decision of the court of appeal. It’s not really a conflict but an inconsistency between 2 decisions. This is inconsistency should be solved since both decisions should not stand a long time. The court of appeal should declare to follow one decision and should follow the decision of the House of Lords, Supreme Court.

Third exception:whether the court decision may should be not be bound by a previous decision which was given per incuriam. A decision given per incuriam is a decision which was rendered with false information’s that is to say when the jurisdiction decided a case without having totally the knowledge of what the law was.They missed a precedent of a statute law was applicable. We should not let this thankful decision be comparers for the court.

These exceptions were said in the decisions Young, they will be more exceptions to the fact that we have to follow our own decisions.

  • Criminal division: the principle is the same. The leading case, young case has operated also for the criminal decisions. But the rule is more flexible when it is applied by the criminal division because it’s more important to protect the liberty of people than the stability of the cases. In such cases, justice is more important than certainty. Whenever the liberty of one person is in question then the court of appeal is allowed to depart from previous decisions more easy. So this is the rule that was set up in that case. There is a certain resistance from some judges in the court of appeal and in particular one famous judge Lord Denning who tried to establish the principle that the HL practice statement should also apply to the court of appeal.

Lord Denning in David v Johnson. In this case, we can see the opposition of Lord Denning. It concerned a couple which lived in a flat but the woman was regularly battered by her husband and this woman after having fledge the domicile she applied under the domestic violence act, she applied for an instruction ordering her husband to stop using violence and go out the flat. The earlier cases the court of appeal has declared that a person with a proprietary interest in some property could not be excluded from that property under this statutory act. There was a previous decision. This husband argued on this previous decision. If the court of appeal will to follow his own previous decisions then they should not issue his previous decision. The court of appeal declared that it was free to depart from his previous decision and therefore allowed the woman’s application to order an injunction to husband to quit the flat. Lord Denning writes that the court of appeal should apply the same guideline as the HL and not to follow his own decision.

One of his colleagues agreed also that the court of appeal should be able to depart from his previous decision. The court should not be bound but expressed his idea in a different mind. Lord Denning argued that if an error has been made then this court (of appeal) has no option but to continue the error and leave it to be corrected by the HL. But the problem is that he HL may never have the opportunity to correct the error. And so this error maybe perpetuated indefinitely. The argument made by Lord Denning is that if we don’t follow the previous decision the error will be perpetuate.

His colleague said that it should not be adopted as a principle that we are able to depart from our decisions but we should just hunt another exception lay down in the Young case. This exception would be that if applying a previous case will entrain a serious mischief or abuse then we should be an exception not to follow the previous decisions. The HL agreed with the court of appeal that an injunction could be granted but disagreed on the use of precedent saying that the court of appeal had been wrong to deviate from the exceptions lay down in the young case. Still today the young case principle is applied.

=>Do lower courts bind themselves?

As to the lower courts it’s somehow more complex the high court may act either as a first instance judge. The depending of this rule of binding precedent would be different. When a high court exercises its jurisdiction at first instance then its decisions are not binding upon itself. There is however a tendency to follow his own previous decisions but here the previous decisions only play a role of judged have… Court of equal jurisdictions doesn’t bind each other. The judges are tented to follow his own decisions given the principle of judicial comity but isn’t commentary.

When the high court exercises its jurisdictions at the appeal level then the decisions of the courts are binding upon themselves and upon the lower courts. In that case the rule is applicable to the court of appeal then applies for the high court.

At which level the high court exercises his jurisdiction?

High Court: supervisory jurisdiction.

Previous decisions have a strength persuasive authority. The principle that this is the judges feeling we should trust what other colleague has made. Appeal level: the same rule is applies for the high court but it applies also the 3 exceptions.

Then, there is also another kind of jurisdiction that the high court can make. The high court made serve at a supervisory jurisdiction. We speak about supervisory jurisdiction to describe the fact that it’s not the fact that is judged by the high court but the decisions making process. The judicial review is thisexercise the high court as a supervisory jurisdiction, exercise the judicial review. A review is a means of challenging the legality of a decision make in a process. The judicial review doesn’t look at the Maries. It’s not bound by another decision of a divisional court. There is 3 divisional courts in the high court. And finally, we have still free our courts below the high court. There are bound by these decisions, they aren’t bound by its previous decisions, the lower courts. The previousdecision has still a persuasive decision.

Since the doctrine of binding precedent is of the almost importance how case law is built is to explain what built the English system.