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The doctrine of judicial precedent can be considered
as being one of the most essential components within the English legal system
and it is fundamental to the operation of the common law. The doctrine is based
on the term ‘stare decisis’ which simply means ‘to stand by the decisions that
were already made.’ This requires cases to be similar in nature and based upon
the same point of law. This would allow for certainty, practicality and
flexibility in the law and the application of justice. Certainty being that,
lawyers and their clients, are able to predict what the outcome of a particular
legal question is likely to be in light of previous judicial decisions. In
theory, it should therefore be possible to avoid litigation because the result
is a foregone conclusion. The doctrine gives guidance to judges and reduces the
risk of mistakes in individual cases.

There are two types of judicial precedent, one being
that of binding precedent and the second being persuasive precedent. Binding precedent
occurs when a judge is bound to follow the decision that was made in a similar
previous case. The initial decision can be found in the ‘ratio decidendi’ of
the precedential case. Ratio decidendi in this case means the reasoning by
which the judges arrived at their decision. An example of this can be seen in
the case of Shaw v DPP1
where the House of Lords held that a crime of ‘conspiracy to corrupt public
morals’ existed. This set a binding precedent which was followed in Knuller v DPP2
where Knuller published magazines that contained advertisements which
encouraged for the meeting of males for homosexual activity. The issue here was
whether or not Knuller could be convicted of the offence of ‘conspiracy to
corrupt public morals.’ The conviction was upheld because the House of Lords
had already created the offence of ‘conspiracy to corrupt public morals’ in the
decision of the previous case and it was bound to be followed. Another case
which can be used to demonstrate the binding nature of judicial precedent is
that of Donoghue v Stevenson.3 It
was held by the House of Lords that the manufacturer owed a duty of care to the
customer of the product. This decision was followed in the case of Grant v Australian Knitting Mills.4 In
this case it was held that the manufacturer was negligent in the process of
manufacturing and that the customer was also owed a duty of care.

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Persuasive precedent however is not binding but a
court may consider following its principles. This consists of other statements
that were made which in no way influenced the reasoning for the decision. This
is referred to as the obiter dicta. An example of this can be seen in the case
of R v Gotts5
where the obiter dicta was followed by the House of Lords from the case of R v Howe and Bannister.6

However, having mentioned what judicial precedent is
based upon in the above, it is important to understand the principle by which
it operates. That is, for some cases, a court is bound to follow its own
previous decisions. They may also follow previous decisions that were made by a
court of higher standing or a court of equal standing within the hierarchical
structure of the English courts. From this, the validity of the statement, ‘The
doctrine of precedent means that Court of Appeal is bound by its own previous
decisions,’ can now be assessed.

In general, the Court of Appeal (Civil Division) is
bound by their own previous decisions even if they consider it to be wrong as
seen in Davis v Johnson.7 In
this case, Lord Denning MR said the doctrine that the Court of Appeal is bound
by its own previous decisions is a rule of practice, not of law, and should be
modified to allow the Court to depart from an earlier decision if convinced
that it is wrong. His aim here was to give the Court of Appeal the same general
freedom as the House of Lords exercised due to the House of Lords’ Practice
Statement in 1966 where they may depart from their own decisions. He was however
unsuccessful in his efforts and thus the general rule remained as is (The Court
of Appeal is Bound and should be reaffirmed unequivocally). This rule is
however subjected to three exceptions which are set out from the case Young v Bristol Aeroplane.8

These exceptions being, firstly, a judge may choose
either one where there are two conflicting decisions as seen in the case of Tiverton Estates Ltd v Wearwell.9 In
this case, the two conflicting cases were Clearbrook
Property Holdings Limited v Verrier10
and Law v Jones.11 Lord
Denning stated that the courts have held, for hundreds of years, the phrase
‘subject to contract’ simply means that the matter remains in negotiation until
a formal contract is executed. He continues saying that the courts are masters
of their own procedure and can do what is right even though it is not contained
in the rules. The final decision was that the Clearbrook’s case was approved and the Law v Jones case was deemed incorrect. Such conflicts arises
because the Court of Appeal does not hear one case at a time, different Lord
Justices may sit hearing different cases at more or less the same time.

Secondly, where a Court of Appeal decision is
incompatible with a House of Lords decision, the Court of Appeal must give
effect to the House of Lord’s decision as seen in the case of Family Housing Association v Jones.12 In
this case the court believed that its earlier decisions had been impliedly
overruled by the decision of the House of Lords in AG Securities Limited v Vaughan13
and Street v Mountford.14

Finally, where a previous decision was reached per
incuriam, the Court of Appeal is not bound to follow it as seen in the case of Williams v Fawcett.15 In
this case the claimant was imprisoned for the breaching of a non- molestation
order. The paperwork, however, failed to specify the breaches. It was then held
that a person could not be committed to prison for breaching a non-molestation
order unless it had been signed by an officer of the court. This requirement
was not part of a statute or the procedural rules. Previous decisions were
therefore noted per incuriam. Also, in Morelle
v Wakeling16,
Lord Evershed limited the use of the per incuriam rule to cases where: there
was ignorance of authority which would have been binding on the court; and that
ignorance led to faulty reasoning. The Court of Appeal also added that the rule
can only be applied where, had the court reviewed these authorities, the court
would have definitely reached a different decision.

The Court of Appeal (Criminal Division) is generally
bound by its own decision. However, it adopted the principle that where
injustice would be caused to an appellant, it would not regard itself as being
bound by its earlier decision. This arose out of the case of R v Gould.17
Thus where the liberty of the subject is concerned, the court will depart from
its own decision where it appears right in the interest of justice. The general
rule is also subjected to the exceptions laid down in Young v Bristol Aeroplane.

Apart from being bound to itself, the Court of
appeal is also bound to Courts that are of higher standing in the hierarchical
structure of the courts. That court being The Supreme Court (This court
replaced the House of Lords).

In conclusion, the statement, ‘The doctrine of
precedent means that the Court of Appeal is bound by its own previous
decisions,’ is partially valid. This is simply a fraction of the concept of precedent
regarding the Court of Appeal. As discussed, the Court of Appeal is generally
bound to its own decisions but that is not always the case. There are the
exceptions as set out in Young v Bristol
Aeroplane. Also not forgetting that they are not only bound by their own
decisions but they are bound by decisions of the Supreme Court of Justice.

1 1962 AC 220 (HL)

2 1973 AC 435
(HL)

3 1932 UKHL 100,
SC (HL) 31, AC 562, All ER Rep 1

4 1935 All ER Rep
209, AC 85, 105 LJPC 6, 154 LT 185, UKPC 2, UKPC 62

5 1992 2 AC 412 (HL)

6 1987 2 WLR 568
(HL)

7 1979 AC 264, 1978
1 All ER 1132, 1978 UKHL 1, 1978 2 WLR 553

8 1944 1 KB 718 (CA)

9 1975 Ch 146

10 ChD 1974 1 WLR
243

11 1974 Ch 112

12 1990 1 WLR 779

13 1988 UKHL 8, 1990
1 AC 417, 1988 3 All ER 1058

14 1985 UKHL 4, AC
809, 2 WLR 877

15 1986 QB 604, 1985
1 All ER 787

16 1955 2 QB 379,
1955 EWCA Civ 1, 1955 2 WLR 672, 1955 1 All ER 708

17 1968 2 QB 65

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