Judicial Precedent (Case law)

In simple terms, judicial precedent is the application of a principle of law as laid down by a
higher court on a previous occasion in a case similar to that before the court. In other words,
an inferior court must follow the earlier decisions of superior courts. For example, the Circuit
Court must follow the decisions of both the High Court and the Supreme Court. This
approach is known as the doctrine of stare decisis (“let the decision stand”).

As we have seen earlier, the common law was developed through the centuries by the judges
essentially creating and applying the law to new situations. In this way consistency and
uniformity were achieved. How the judges are no longer responsible for making the law
anymore. The focus of the court is now on the interpretation of law including
constitutional law and legislation. As a result, judicial precedent in modern times is about the
lower courts following the higher courts interpretation of the law.

Judicial precedent (commonly called “case law”) is usually created when the existing law is
‘silent’ on the matter or where the legislation is unclear. In these situations, the judges are
required to interpret the particular statutory provision and to resolve the ambiguity. The
judge’s decision becomes a binding authority on the lower courts. For example, the
Supreme Court may interpret a piece of legislation and the decision that this court makes in
relation to that issue will have to be followed by the Court of Appeal, the High Court, the
Circuit Court and the District Court.

The entire decision of the higher court is not binding. It is only that part of the decision,
known as the ratio decidendi, the grounds of the decision, which is of binding authority.
The remainder of the decision, the obiter dictum, are judicial comments and do not
constitute binding precedent. A precedent can be overruled by a decision of a court of
superior jurisdiction and then that previous decision is formally deprived of all authority. It
is void (no longer law). In addition, if the legislature passes a new statute which contradicts
the existing case law, then that judicial precedent will lose its force of law. Even though the
ratio decidendi of lower courts and foreign courts are not binding they may be regarded as
having persuasive authority. Consequently, the court enjoys discretion whether to adopt the
decision or to ignore it.

Generally courts of equal jurisdiction and authority must generally follow existing court
decisions. For instance, a high court judge must generally follow the precedent set by a
previous high court judge. Where a court decides that it does not want to follow the decision
of a court of equal jurisdiction it may instead distinguish that court’s previous decision.
Where a decision is distinguished the court has decided that the facts and law of that previous
decision is not relevant. Interestingly, only the Supreme Court is not bound by its own
previous decisions. This principle was declared by that court in The State (Quinn) – v –
Ryan (1966), when it was decided that it was not bound by its own previous decisions in
constitutional cases. In this case, the prosecutor challenged the constitutionality of an old
statute which was in existence before the creation of the Irish Free State. The Supreme Court
over-ruled its previous decision and declared the old statute to be unconstitutional.

Access to accurate reports of judicial decisions is of vital importance in the operation of

the system of judicial precedent. The principal law reports that record the decisions of the
courts in this jurisdiction are the Irish Reports (I.R.) and the Irish Law Reports Monthly
(I.L.R.M.). There have been significant technological advances over the years and now it is
possible to go on-line and search various legal databases in order to find previous judicial
decisions. Probably one of the impressive electronic legal research services available on-line
is www.westlaw.ie. It has made the job of legal research faster & more efficient.

An example of how judicial precedent is created and applied by the courts

One of the most significant judicial precedents established by the courts is Donoghue v
Stevenson (1932) which established the modern tort of negligence. In this case Mrs.
Donoghue and her friend went into a café. The friend ordered Mrs. Donoghue a bottle of
ginger beer from the cafe owner. The bottle was made of a dark glass which made it
impossible to see the contents of the glass. Mrs. Donoghue drank some of the beer before
pouring the remainder into a glass. A decomposed snail floated out of the bottle and in to the
glass. The appellant alleged that she became seriously ill as a result of drinking the ginger
beer and so she sued the manufacturer of the beer. The manufacturer argued that he did not
owe a duty of care to the plaintiff since there was no contract between the defendant and the
plaintiff (the purchase having been made by the plaintiff’s friend). The House of Lords held
that the defendant had prepared the product in such a way as to show that he intended it to
reach the ultimate consumer in the form in which it left him. He could reasonable foresee
that somebody other than the original purchaser might consume the produce, and, therefore,
he was held liable to the plaintiff as he owed her a legal duty of care.
The House of Lords found that the duty existed between the two parties based on the
‘neighbour’ principle and this principle was explained by Lord Atkins in Donoghue v
Stevenson as follows: “You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be liable to injure your neighbour. Who then, in law, is my
neighbour? The answer seems to be - persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts and omissions which are called into question”.

The decision in Donoghue v Stevenson is widely considered to have been first accepted by
the Irish Courts in the case of Kirby v Burke & Holloway (1944). Since that case the scope
of the tort has been expanded to cover situations other than product liability. In Larkin v
Dublin City Council [2007] HC Unreported the plaintiff sued the defendant for negligence
in respect of a psychiatric illness which he claimed he suffered as a result of an error in a
computer imputing process by an employee of the defendant. The plaintiff was a fireman and
was involved in a promotion competition. He and a colleague were initially informed by
Dublin Fire Brigade that they had been successfully shortlisted for a sub-officer role with the
fire brigade. However, they were subsequently informed that a computer error had resulted in
their interview points being calculated incorrectly. They were then removed from the shortlist
of the promotion competition. The court found that the defendant owed a legal duty of care to
the plaintiff in relation to their handling of the promotion process and that there had been a
breach of this duty of care. However, the court in this case found that the plaintiff was not
suffering from a recognised psychiatric illness (such as depression) and so the defendant was
held not to liable in negligence by the Irish High Court.