PRECEDENT Lecturer's Notes

BUSINESS LAW

PRECEDENT

Law reports are fundamental to the Doctrine of precedent which s the cornerstone of the English Legal System. The operation of the doctrine depends on the hierarchy of the courts. The advantages of precedent system are certainly, precision, flexibility and security to the existing law. The common law which was originally based on local courts has developed through the system of judicial precedent. Precedent relies on the concept of  ‘Stare Decisis’, where a decision exists on a particular point, a later court confronted with the same facts must follow the earlier decision unless clear reasons are advanced for not following it. Judicial precedent is a pronouncement of the courts used as a source for the future decision making. There can be no doubt that certainty is a highly desirable characteristic of the law for it otherwise would appear to be a lottery. A judge may distinguish a case on the bases of a false assessment of what constitute material facts. An inferior court maybe able to avoid the binding effect of a superior decision by distinguishing it. To rigid adherence could lead to individual injustice & restrict the development of the law. If the doctrine of precedent were to be abandoned then special provisions will have to be made on • • • • •

Retrospective Bases of contracts. Property settlements Financial arrangements Certainty in criminal law

Precedent is a time-saving device. The existence of a precedent may prevent a judge making a mistake which he might have made if he had been left alone without any guidance. Precedent may also allow persons generally, to order the affairs & come to a settlement with a certain amount of confidence. Obiter Dicta are opinions expressed by judges which are not an issue & hence they’re not binding.

Value of precedents 1. It produces security to the existing law 2. Precedents which are authoritative can only be swept away by decisions of a superior court or an act of parliament. There is an argument that predictability is essential to the rule of law, that everyone should be subject to the same law & know what the law is. This is achieved when there is certainty. Precedent is a guide to the solution of new problems. Rigidity could lead to injustice & restrict the development of the law. The courts had to develop an approach that would strike a balance between certainty & rigidity & this was done by the Practice Statement. The main reason for precedent is to promote certainty & predictability. For example, R v Clegg [1995] it was held that a soldier who had killed a person by using excessive & unreasonable force in self defense, was guilty of murder according to precedent.