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common law
Judicial precedent is a process whereby the judges follow
the previous decided cases where the facts of the case are
sufficient of similarity. The doctrine of judicial precedent
involves an application of the principle of Stare decisis, to stand
by the decided. In practice, this means that the inferior courts
are bound by to apply the legal principles set down by the
superior courts in earlier cases. This provide consistency and
predictability in law. The decision or judgement of the judge
may fall into two parts, ratio decidendi and obiter dicta. Ratio
decidendi of a case is the principle of law on which a decision is
based. When a judge delivers judgment in a case, he will first
outline the facts which he finds have been prove on the
evidence. He then applies the law to those facts and arrived at
decision, for which he give the reason. While, obiter dicta, other
things to say, is when the judges speculate what is his decision
would have been if the facts of the case have different. The
binding part of a judicial decision is ratio decidendi, an obiter
dictum is not binding in later cases because it was not strictly
relevant to the matter in issue in the original case. However, an
obiter dictum may be of persuasive authority in later cases,
which means that the judge may consider it and decide that it
is a correct principle so he is persuaded he should follow it.
The problem with the system of precedent is that though it
works well for the majority of cases but for a small number of
cases the precedent the judge has to follow may be an unfair
approach to a unique situation. Another problem is that as
society changes economically, technologically or socially the
past precedents no longer are relevant to todays society. So,
there are a range of methods available to allow for exception or
all out change to help the common law to develop. The higher
the courts is in hierarchy the more powers the court has to alter
previous precedents.
Firstly, overruling may occur when a higher court overrule
a decision made in an earlier case by a lower court. For
example, the court of appeal can overrule an earlier high court
decision. Overruling can occur if the previous court did not
correctly apply the law, or because the later court consider that
the rule of contained in the previous ratio decidendi is no
longer desirable. For example, in Pepper v Hart, when the
House of Lord ruled that the hansard could not be consulted
when trying to decide what certain words in an Act of
Parliament meant. This decision overruled the earlier decision
in Davis v Johnson. However, there were some requirement in
the House of Lords and Court of Appeal to overrule an earlier
decision. House of Lords, the highest court in land. It bind all
the English court beneath either criminal or civil cases. The
Supreme Court replaced the long-established House of Lords in
2009 and the rules of precedent are expected to be exactly the
same for the Supreme Court as they were for the House of
Lords before it. The main debate now is about the House of
Lords is the extent to which it should follow its own past
decisions. Originally, the House of Lords had the right to
overrule the past decisions. Until the case of London Streets
Tramsways v London County Council, the House of Lords
held that certainty in law is more important than the possibility
of individual hardship being caused through having to follow a
past decision. This is not felt to be satisfactory, as the law could
not alter to meet changing social conditions and opinions, nor
could any possible wrong decision as stated above be change
by the court.
Until 1966, the Lord Gardiner LC announced a change of
Practice Statement. This practice statement allowed the House
of Lords to change the law when it believed that an earlier case
was wrongly decided. It had the flexibility to refuse to follow an
earlier case when it appeared right to do so. However, this
power have been used sparingly. The first real use of Practice
statement was in 1972 for civil law. The case of Herrington v
British Railways Board overruled the decision of Addie v
Dumbreck. In Herringtons case, the old ratio decidendi was
dispensed with in favour of holding that the duty of care is
owed to children who are attracted onto property by some
object of allurement and are died as a result, therefore
compensation could now be paid. After a great reluctance in the
House of Lords to use the practice statement in R v Secretary
of State for Social Service where the Lord preferring to keep