Doctrine of Precedent — SQE1 FLK1 Legal System

A tenant's stock is ruined by water from a leaking roof. You find a Court of Appeal decision that looks like a perfect match. A landlord who fails to repair a leaking roof within three months of being notified is liable for exactly that damage. Your client's landlord was never notified. The tenant assumed he must already know. Is that decision binding on the High Court judge who will hear the claim? Yes and no. It binds her. It does not decide the case.

That gap, between a precedent which binds a judge and one which reaches her facts, is where this topic lives. This is the Doctrine of Precedent, and it turns the court rankings into law. Keep the roof in mind.

Here is the route. What precedent is, and the two directions it runs in. Then the part of a judgment that binds and the part that only persuades. Then which courts bind which, and which authorities a judge may follow but need not. Then the two escape hatches, one for each of the top two courts. Then overruling, distinguishing and reversing. And finally, what the doctrine costs.

When a court decides a legal issue, that decision becomes part of the law, and later courts on similar facts apply the same reasoning. Why bother? Certainty, consistency, fairness. Advise a client, and you need to know the law will be applied as it was last time.

It runs on law reporting. Judgments are published, you research earlier decisions for similar facts, and you put those authorities before the judge. She must follow the binding ones. She may follow the persuasive.

Stare decisis means standing by things decided, and it runs two ways. Vertical: lower courts follow the courts above them, so the Court of Appeal binds the High Court, and the Supreme Court binds them both. Horizontal: a court is bound by its own earlier decisions. The Supreme Court can depart from those, cautiously.

Now the part that binds. Only the ratio decidendi binds: the reasoning essential to the decision, the principle the case was actually decided on. It is the rule without which the case would have gone the other way. Everything else is obiter dicta.

How do you find it? Professor Goodhart's method is the standard one. Take the facts the judge treated as material, take the decision reached on those facts, and state the principle linking the two. Immaterial facts are excluded.

Work one. A driver is injured at a junction when the traffic lights fail in a power cut. The judgment records heavy rain, the rush hour, and a driver marginally over the speed limit, then says none of it mattered. The authority is liable: the duty to maintain the lights was broken, and that failure caused the collision. So what is the ratio?

Not the rain. Not the hour. The ratio is that an authority which fails to maintain traffic lights is liable for a collision so caused. Strip the immaterial, and the rule is what is left.

One complication. Where a panel sits, each judge may give a separate judgment with a different ratio. Same outcome, different reasons. Then you look for the narrowest ground on which the judgments agree.

Obiter dicta means things said in passing: what the judge would have decided on different facts, a principle not directly in issue. Persuasive, never binding. But persuasive is not weak. Obiter from the Supreme Court carries real weight, and lower courts follow it out of respect for those judges' seniority.

Here is how far that goes. In Hedley Byrne v Heller, in 1964, the House of Lords set out the principle that a person can be liable for a negligent misstatement. It was obiter. The claim itself failed, because of a disclaimer. Said in passing, and it became law anyway.

It happens more than once. In another case the House of Lords said, in obiter, that duress should not be a defence to attempted murder. The point did not arise on the facts. A later case confirmed it as law.

So when must a court follow? Two conditions. The earlier decision comes from a court above you, or sometimes level with you. And the part relied on is ratio.

Run the ladder. The Supreme Court binds every court below it. The Court of Appeal binds the High Court and everything under it. The High Court binds the County Court and the Crown Court, and only persuades other High Court judges. Below that, no binding precedent at all.

Try it. You are in the County Court. Four decisions on the point: Supreme Court, Court of Appeal, High Court, and a circuit judge in the County Court at another hearing centre. Which bind the trial judge? The first three. The County Court decision binds nobody, however recent.

And if a judge disagrees with the decision that binds her? She follows it anyway. That is what vertical stare decisis means. She can record her disagreement, and she can distinguish the case where the facts genuinely differ, but she cannot decline to follow it. Another High Court judge's decision is a different matter: persuasive only, and she may refuse it if she is convinced it is wrong.

Persuasive authority next: what a judge may follow but need not. Five sources. Obiter from higher courts. Decisions of lower courts. Decisions from other jurisdictions: Australia, Canada, New Zealand. Privy Council decisions. And academic writings, where there is no authority on point.

They do not all weigh the same. Obiter from the Supreme Court beats a foreign decision. Seniority, reputation, and how closely the facts align: all of it counts. Watch the Privy Council. Only persuasive, but often the same judges who sit in the Supreme Court. Lower courts sometimes treat it as effectively binding, particularly where it has expressly departed from an earlier House of Lords decision.

First escape hatch, the Supreme Court's. Before 1966 the House of Lords was rigidly bound by its own decisions, following a ruling from 1898. An error at the top could not be corrected. Then Lord Gardiner issued the Practice Statement: the House would depart when it appears right to do so.

Sparingly, though. Certainty matters: people plan their affairs around the law, and departing too readily would undermine confidence in it. In R v Shivpuri, in 1986, the House used the Practice Statement to overrule its own decision from barely a year earlier, on liability for attempting the impossible. Barely a year.

Another. In 1972 the Lords used it again, departing from a decision from 1929 to hold that an occupier owes a duty of common humanity to a child trespasser. Social conditions had changed. The law was allowed to follow.

And it declines far more often than it agrees. In Jones v Secretary of State for Social Services, in 1972, a majority of the Lords thought the earlier decision wrong. They refused to depart from it anyway, because certainty in social security law mattered more.

One more thing about the top court, because it is a favourite trap. The Practice Statement is not the only way the law changes there. In one leading case the House of Lords held that a husband could be guilty of raping his wife, ending the marital rape exemption. That was the common law developing to match changed social attitudes. The exemption came from an 18th-century proposition, not from an earlier decision of the House, so no Practice Statement was needed.

Second escape hatch, for the Court of Appeal. The Civil Division is generally bound by its own previous decisions: Young v Bristol Aeroplane Co, in 1944. Three exceptions, and only three. One: two of its own decisions conflict, and it picks one. Two: a later House of Lords or Supreme Court ruling has impliedly overruled it. Three: it was made per incuriam.

Per incuriam means deciding in ignorance of a statute or binding authority which would have changed the result. Narrow, this one. It is not enough that the earlier court was wrong, or that the law has moved on. Hold that. It comes back at the quick check.

The Criminal Division has one more. Where following its own earlier decision would work injustice to a defendant, it may depart. Liberty is at stake. A man may serve a term of imprisonment on a construction now thought wrong. That was recognised in R v Taylor, in 1950.

Two words the examiners know you confuse. Overruling: a higher court, in a later and different case, decides the earlier principle was wrong. The old case stands on its own facts, but its rule is no longer law. Reversing: the same case goes up on appeal, and the appeal court changes the decision. Overruling changes the law for everyone. Reversing changes the outcome for the parties.

Distinguishing is the common one, and it answers the roof. The judge finds a material difference in the facts, so the ratio of the earlier case does not reach hers and she decides differently, leaving that earlier decision untouched. Notification was material there. That landlord was notified by letter and acknowledged it. Yours was never told. The precedent binds the judge. It does not cover her case.

Immaterial differences will not do. A property that is commercial rather than residential, a valuation delivered by email rather than by post: neither releases you when the earlier reasoning turned on neither. Distinguish on those and the distinction is artificial, which is one of the standard criticisms of the whole doctrine.

And a judge who thinks a binding decision wrong but cannot escape it? She applies it and records her disapproval. A disapproved decision carries less weight as persuasive authority and stays law until it is formally overruled.

One path holds all of it. An earlier decision on the same point? Ratio, not obiter? A court above you? Facts not materially different? Four answers of yes, and you are bound.

So what does the doctrine cost? Credit side: certainty, consistency, efficiency, detailed rules grown from real disputes, flexibility enough to move. Debit side: rigidity, the risk of an unjust result, the volume of reported cases, change arriving one dispute at a time, distinctions drawn on flimsy grounds.

Rigidity has a face. A client's claim is defeated by a rule the Court of Appeal laid down decades ago, which every commentator now calls out of date. It changes only when the right case reaches the Supreme Court. He cannot afford to take his own that far. Precedent fine-tunes. Parliament reforms. A court moves the law one dispute at a time, and it cannot build a compensation scheme or write transitional rules.

A word on how SQE1 tests this. You will not be asked to recall case names or section numbers. You get a scenario and five answers, and one instruction: pick the best. The names in this episode are memory pegs, nothing more. One habit is worth building: when you meet a case name, ask what the ratio was, and whether it still binds.

If you keep only three: Young v Bristol Aeroplane Co, which ties the Court of Appeal to its own decisions and names the three ways out. Hedley Byrne v Heller, where a principle said in passing became law. And the Practice Statement of 1966, which let the top court correct itself, and uses that power sparingly.

Five traps. One: overruled and reversed are not interchangeable. If a question says the Court of Appeal reversed the High Court, the same case has gone up on appeal. If it says the Supreme Court overruled an earlier decision, a different and later case has changed the law.

Two: the Practice Statement belongs to the Supreme Court alone, not to the Court of Appeal, which is governed by Young v Bristol Aeroplane Co. Three: ratio or obiter, ask one question. Could the case have been decided the same way without that statement? If it could, it is obiter.

Four: never describe precedent as completely rigid. The system has safety valves, and the examiner wants to see you know them: the Practice Statement, the three exceptions, distinguishing, overruling.

Five: overruling a lower court needs no special power. The Practice Statement is about the top court departing from its own previous decisions. When the Supreme Court overrules the Court of Appeal, it is doing no more than a higher court does.

Quick check, and you met this one a few minutes ago. The Court of Appeal, Civil Division, is hearing an appeal governed by one of its own decisions from 2019. That decision never mentioned a statutory provision which came into force the year before and which would have produced the opposite result. The provision was in force when that appeal was argued, and neither side cited it. There is no conflicting authority and no later Supreme Court decision.

Counsel asks the court not to follow its own ruling. On what basis may it decline? One: the decision is more than five years old and the law has moved on. Two: it was made per incuriam, in ignorance of a relevant statutory provision. Three: the court may always revisit a decision it thinks wrong. Pause here if you want a moment.

The answer is two. This is the third exception in Young v Bristol Aeroplane Co: a decision reached in ignorance of a statutory provision which would have led to a different result. The provision was in force, nobody cited it, and it would have changed the outcome.

Why the others fail. Age is not a ground: a precedent does not weaken because time has passed, and one of the recognised exceptions must apply. And the Civil Division cannot depart merely because it thinks a decision wrong. The exceptions are exhaustive. The Criminal Division has more latitude, but this is a civil appeal.

Five things to take away. One: precedent runs in two directions, vertically down the hierarchy and horizontally on a court's own past decisions. Two: only the ratio binds, and obiter persuades, sometimes powerfully enough to become law.

Three: the Supreme Court may depart from itself when it appears right to do so, and it declines far more often than it agrees. Four: the Court of Appeal, Civil Division, has three exceptions. Conflict, implied overruling, per incuriam. Five: the roof. A binding precedent still has to reach the judge's material facts. Where it does not, she distinguishes it. Next time, Primary Legislation.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.