Rules of precedent
The present rules relating to judicial precedent are as follows:
Civil courts
House of Lords
In London Street Tramways Co. v. L.C.C. (1898) the House of
Lords ruled that it was bound by its own decisions. This meant
that a decision of the House could be overruled only by legislation.
In 1966, however, a statement was issued by the Lord Chancellor
on behalf of the House of Lords. It is worth quoting in full,
as it indicates both the importance and the limitations of
precedent as a source of law:
Their Lordships regard the use of precedent as an indispensable
foundation upon which to decide what is the law and its application
to individual cases. It provides at least some degree of certainty
upon which individuals can rely in the conduct of their affairs,
as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence
to precedent may lead to injustice in a particular case and
also unduly restrict the proper development of the law. They
propose, therefore, to modify their present practice and,
while treating former decisions of this House as normally
binding, to depart from a previous decision when it appears
right to do so. In this connection they will bear in mind
the danger of disturbing retrospectively the basis on which
contracts, settlements of property and fiscal arrangements
have been entered into and also the especial need for certainty
as to the criminal law….This announcement is not intended
to affect the use of precedent elsewhere than in this House.
The House of Lords is therefore not bound by its own decisions,
but its decisions are binding on all lower courts.
The House of Lords hears appeals in civil cases from both
the English and the Scottish courts. Where the principles
of English and Scots law are the same (as they are, for example,
in the law of torts (called delict in Scotland) but not generally
in the law of contract) a decision in an English case is binding
on the Scottish courts and vice versa. A number of very important
principles of English law are in fact derived from appeals
to the House of Lords in Scottish cases.
Court of Appeal – Civil Division
A decision of the Court of Appeal – Civil Division is
binding on all inferior courts and on itself. The court is
bound by decisions of the House of Lords.
The rule that the Court of Appeal is bound by its own previous
decisions was fully discussed in Young v. Bristol Aeroplane
Co. Ltd (1944), in which it was laid down that the general
rule is subject to the following qualifications:
-Where there are previous inconsistent decisions of the Court
of Appeal, the court may follow either of the previous decisions,
in which case the other is overruled.
-Where a previous decision of the Court of Appeal has been
overruled by the House of Lords, it must follow the decision
of the House of Lords rather than its own previous decision.
-The Court of Appeal need not follow its own previous decision
where it was reached per incuriam, that is, as a result of
some error. For example, in arriving at the previous decision
the court may have overlooked the existence of some statutory
provision.
A decision of the Court of Appeal – Criminal Division
is not binding on the Civil Division.
High Court
A decision of the High Court is binding on inferior courts,
but does not bind the High Court itself: it is of persuasive
influence only. It is therefore possible for there to exist
two or more conflicting High Court decisions. The only way
to solve the problem thus created is to take a case to the
Court of Appeal. The High Court is itself bound by decisions
of the House of Lords and of the Court of Appeal.
County Court
The County Court is bound by all decisions of the higher courts,
but its own decisions never create precedents.
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