The English legal system is built on the doctrine of judicial precedent, also known as stare decisis, which means that courts should stand by what has been decided in previous cases. This creates certainty and consistency in the law, as like cases are treated alike. However, for the law to evolve and correct past errors, judges need ways to avoid being bound by a precedent that is no longer appropriate or was wrongly decided. These mechanisms provide essential flexibility. This assignment will set out the principal methods used by the courts in England and Wales to avoid unwanted precedents.
The Methods for Avoiding Precedent
Courts do not have complete freedom to ignore previous decisions, especially those from a higher court. The ability to avoid a precedent depends on the court’s position in the judicial hierarchy and the specific tool being used. The main tools are distinguishing, overruling, reversing, and declaring a decision to have been made per incuriam.
Distinguishing
Distinguishing — argue the facts are materially different, so the old rule doesn't apply. This is the most common method used by judges at all levels to avoid following a past decision. If a judge can find that the significant facts (the material facts) of the case they are hearing are sufficiently different from the facts of the earlier case, then the earlier case is not considered binding. In this way, the judge is not challenging the legal rule from the past case but is simply stating that the rule is not applicable to the current, different factual situation. A classic example is the distinction between Balfour v Balfour [1919] 2 KB 571, where an agreement between a husband and wife who were living together was not legally binding, and Merritt v Merritt [1970] 1 WLR 1211, where an agreement between a separated couple was held to be a binding contract because the context suggested they did intend to create legal relations.
Overruling
Overruling — a higher court declares a past decision was wrongly decided. This method is more direct than distinguishing and is only available to courts with the power to do so. When a court overrules a precedent, it is stating that the legal rule or principle in the earlier case is wrong and should no longer be considered good law. The Supreme Court (formerly the House of Lords) can overrule its own past decisions by using the Practice Statement of 1966 (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234). It famously did this in R v Shivpuri [1987] AC 1, when it overruled its own very recent decision in Anderton v Ryan [1985] AC 560 on the law of criminal attempts. The Court of Appeal can also overrule decisions of lower courts but is generally bound by its own past decisions, subject to limited exceptions. Overruling is used sparingly to maintain legal certainty.
Reversing
Reversing — an appellate court overturns the lower court in the same case on appeal. This is different from overruling because it applies within the same case. If a party loses a case in a lower court, such as the High Court, and appeals to a higher court, like the Court of Appeal, the appellate court can reverse the decision. This means the outcome of the case is changed for the parties involved. Reversing corrects an error in a specific case rather than setting aside a general legal principle from a past case, but it is an important part of the appellate process that prevents a single incorrect decision from standing.
Per Incuriam
Per incuriam — the past decision was made in ignorance of a binding authority, so it's not followed. This Latin term means ‘through lack of care’. A court can refuse to follow a precedent if it can be shown that the earlier court made its decision without considering a relevant Act of Parliament or a binding precedent from a higher court which would have affected the outcome. This is a very narrow exception. Lord Evershed MR stated in Morelle Ltd v Wakeling [1955] 2 QB 379 that it could only be used where the previous decision was made in "manifest slip or error". It is one of the exceptions set out in Young v Bristol Aeroplane Co Ltd [1944] KB 718 that allows the Court of Appeal to avoid following one of its own previous decisions.
In conclusion, while the doctrine of precedent is a cornerstone of the English legal system, these tools provide necessary flexibility. Distinguishing allows for nuanced development on a case-by-case basis, while overruling provides a more powerful mechanism for higher courts to correct significant errors. Reversing ensures justice within a specific case, and the per incuriam rule acts as a safeguard against accidental errors in judgments. Together, they allow the judiciary to balance the need for legal certainty with the ability to ensure the common law develops and remains just.
References
- Darbyshire, P. (2017) Darbyshire on the English Legal System. 12th edn. Sweet & Maxwell.
- Anderton v Ryan [1985] AC 560.
- Balfour v Balfour [1919] 2 KB 571.
- Merritt v Merritt [1970] 1 WLR 1211.
- Morelle Ltd v Wakeling [1955] 2 QB 379.
- Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
- R v Shivpuri [1987] AC 1.
- Young v Bristol Aeroplane Co Ltd [1944] KB 718.
