Judicial Precendent Essay Example

of the courts.The highest Court of Appeal is the Supreme Court (formerly the House of Lords). The decisions that are made here are binding and the lower courts must abide by it. Previously, the Supreme Court was bound to follow all of its previous decisions London Tramways Ltd.

v London County Council (1898) AC 375. On July 26th, 1966, in a statement known as the Practice Statement, the Lord Chancellor announced that the House of Lords would no longer be ‘absolutely bound by its own precedents’. The Consequences of the Practice StatementLord Reid stated in Jones v Secretary of State for Social Services (1972) that there are seven factors to be taken into consideration before the Practice Statement should be used, they are;

•  The statement should be used sparingly
•  A decision should not be over-ruled if:
•  It would upset the legitimate expectations of people who had regulated their affairs in reliance of it.
• It concerned the construction of a statute or document
•  It was impracticable to foresee the consequence of overruling
•  There ought to be a comprehensive reform by legislation
•  It is simply wrong A decision should be overruled if it gave rise to uncertainty or was unjust or outmoded.

Precedent and the Court of Appeal There are two divisions of the Court of Appeal, the criminal and civil, which are both bound by the higher courts but not by each other.

The Court of Appeal Civil Division is bound by its own prior decisions. In the case of Young v Bristol Aeroplane Co Ltd (1944) three cases were identified where it would disregard a previous decision. They are;

1. Where there is conflict between two decisions of the
   

Court of Appeal,

However, a decision of House of Lords cannot be ignored on this same basis. Divisional Court’s of the High Court have adopted the rule laid down in Young’s case. Even though judges at a first sitting are not bound to follow the decisions of other High Court judges, they usually do for the sake of certainty. Avoiding a PrecedentA judge can avoid following a precedent by overruling, reversing or distinguishing the decision of the court.

Overruling is when a higher court overrules the decisions of a lower court in an prior case. Hedley Byrne & Co. Ltd. V Heller & Partners Ltd (1964).

Reversing is when a higher court reverses the prior decision in the same case of a lower court. Distinguishing occurs when the facts of the case before the court are sufficiently different to an earlier precedent and the judge can distinguish it. R v R (1991). The Advantages and Disadvantages of PrecedentThere are advantages and disadvantages of the doctrine of precedent. The advantages are: Certainty Judicial precedent provides certainty in the law, and can be assumed that like cases will be treated in a like manner.

Since judges are bound by prior decisions of the court, their decisions will not be biased. Practicality The rules of English case-law are not derived from a particular theory of law, and therefore it does not attempt to deal with hypothetical thinking. It is the result of consideration of real situation that are brought before the courts.Precedent can be seen as

a time saving device as the law does not need to be continuously rewritten. Time-Saving Since the system is based on binding precedent, it means that a lot of time can be saved by the court as cases of a similar nature have been decided before and therefore the judge does not have to reconsider the matter. Possibility of Growth The system allows for the establishment of new rules and the adaptation of old rules.

As society changes the law needs to be flexible to meet these changes as case law can respond to changes faster than parliament.An example of this is the changes made by the House of Lords in the field of criminal law, when it announced in 1966 that its judges would no longer be bound by their previous decisions. Justice Since decisions are followed, the doctrine of precedent serves in the interests of justice. It is considered to be unjust if a different decision is reached based on the same facts as a previous case. The Disadvantages of Judicial Precedent Rigidity The rule of a binding precedent can be viewed as a rigid approach to justice as it does not allow development of the law.The decision cannot be overruled except by appealing to a higher court or reform of legislation and this can be time consuming and expensive.

Complexity The unimaginable bulk and complexity of law itself, lends itself to the fact that it is difficult to keep up to date. Even the most experienced lawyer may overlook some critical rule in a given case as there are approximately 350,000 decided cases contained in thousands of volumes of law reports.. The disadvantage here

is that a decision can be declared per incuriam at a later time by another court. CostAs Law reporters have to be employed to record the cases and the reports stored, the cost can be high. Injustice The certainty of precedent can be lost by the number and complexity of cases to be reviewed and considered.

Instances may also occur where the overruling of a decision results in an injustice to anyone whose previous affairs depended on that prior decision. Uncertainty The advantage of certainty can be lost due to the number cases. Conclusion Even though it seems that the pros and cons are equal in number, I would like to argue in favour of precedent.Firstly, access to justice would be slow and burdened with corruption if there did not exist a set of precedents to follow. Secondly, the effectiveness of a doctrine of precedent depends in large measure on the availability of accurate law reports of decided cases, which was established by Council of Law reports (1865). Thirdly, departure from the precedent is allowed for the appropriate remedying of an injustice and developing new law.

In conclusion we can say that the use of precedent in access to justice is fair, simple and practical. It allows enough room for amendments.We must also admit that to attain final justice one must be prepared to endure the bulk and complexity of the appeals process, meanwhile withstanding financial expenses. We find that the penurious in society are the majority of defendants facing judgments. This situation means that there maybe limited access to justice because of the costs involved in securing a favorable appeal. This is a process that can

only the genuinely innocent or wealthy may be willing to pursue.

Bibliography

1. Antoine, R. B. , 2008. Commonwealth Caribbean Law and Legal Systems.
2. New York NY: Routledge-Cavendish Duxbury, N. , 2008. The Nature and Authority of Precedent. New York NY: Cambridge University Press Mortimer, T.
3. , 2009. Business Law. 2nd ed. , London: Pearson Education Limited Available at: http://www.
4. lawteacher. net/PDF/Judicial%20Precedent. pdf [Accessed: Available at: http://www. collegetermpapers.
5. com/TermPapers/Legal_Issues/Judicial_precedent. shtml