法則 Ep 5

Okay, this was actually written on the 31st of JANUARY 2013, but since my lecturer only graded and returned our papers today, here's a little Law post :D

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Question:
Consider how the doctrine of binding precedent operates in the English courts, having particular regard to its advantages and disadvantages.

Answer:
Ratio decidendi, which means ‘the reasoning of the decision’, is the part of the decision that is persuasive, or otherwise binding. Judges use these principles to decide the outcome of a case and create a precedent for them to follow in future cases. On the other hand, an obiter dictum includes the rest of the judgment at the end of the case and is not necessary for them to follow in future. However, since the judgment is usually given in continuous form, it is important to divide the obiter dicta from the ratio decidendi.

From the ratio decidendi, a binding precedent may be formed. This precedent must be followed even if future judges do not agree with the legal principles. It is also created when there are similarities between a case and its previous one. The position of the court of record in the hierarchy should be noted, as this will determine whether the ratio is binding or persuasive.

Every court is bound to follow decisions made by a court above it in the hierarchy. These courts are divided into Appellate courts and First Instance courts. Appellate courts include the European Court of Justice, the Supreme Court, the Court of Appeal and the Divisional Court. Courts of the First Instance include the High Courts and the Inferior courts involving the Crown, Country and Magistrate courts.

The European Court of Justice, in the hierarchy, holds the highest power among courts affecting the English Legal System. It is also prepared to overrule its past decisions where they see fit. Therefore, it is safe to say that the European Court of Justice is more flexible than other courts. However, in the case that there are laws unaffected by European Union laws, the Supreme Court is the supreme court.

The Supreme Court is the most senior national court. Like the European Court of Justice, the Supreme Court is not bound by its past decisions, but in general, they keep to them. However, their decisions bind other courts.

The Court of Appeal, or in this case, the Civil Court, is bound by the European Court of Justice and the Supreme Court. Apart from that, they must follow their own previous decisions too.

There are three types of Divisional Courts, namely the Queen’s Bench, Chancery and Family. These courts are all bound by decisions made by European Court of Justice, the Supreme Court and the Court of Appeal. They also follow their previous decisions but are flexible when the point involves the liberty of the subject.

Courts of First Instance include the High Court and Inferior courts. The High Court, like other courts, is bound by decisions of all the courts above it in the hierarchy. They also bind lower courts. Although the High Court judges do not have to follow each other’s decisions, they will usually do so.

Inferior Courts, which are the Crown Court, County Court and Magistrates’ Court, are bound to follow decisions carried out by all the higher courts and it is unlikely that a decision by an inferior court can create precedent.

There are a few methods for a judge to avoid following a previous decision. For the method of distinguishing to work, the judge will have to find material facts of the case which have distinctive differences between the present case and the previous precedent. When this is accomplished, the judge is not bound by the previous case.

For instance, the two cases that can attest this process are Balfour v Balfour (1919) and Merritt v Merritt (1971). These cases involved a wife making a claim against her husband for breaching a contract. In the Balfour case, it was decided that the claim was invalid because no legal relations were intended. There was no legally binding contract because it was merely an arrangement made domestically between a husband and wife.

However, the Merritt v Merritt (1971) case was successful because although both parties involved husbands and wives, the court held that the facts between the two cases were sufficiently different in the sense that the agreement was made after they had separated. Moreover, the agreement was made legitimate in writing. This distinguished the Merritt case from the Balfour case and therefore the agreement in Merritt was not just a domestic arrangement but meant as a legally enforceable contract.

There are a few advantages to the way it is carried out. Of the advantages, one of them includes certainty. Since the courts have to follow past decisions, it allows lawyers to advise clients with more positive assurance because they know what the law is and how it works in particular situations.

Furthermore, precedents provide consistency and fairness in the law since it is seen as just that similar cases should be decided in a similar way. It also offers precision as the principles of law are set in actual cases. This allows gradual build-up through the different variations of facts in the cases that come before the courts.

Another advantage is that precedents save time. This is because precedents can be considered as a useful timesaving device. When the principle is established, cases with similar facts will be unlikely to go through the process of litigation.

In terms of flexibility, precedents give room for law to change as the Supreme Court may use the Practice Statement to overrule cases. This ability to distinguish cases gives courts a certain portion of freedom to avoid past decisions and develop the law.

As with every advantage, there are disadvantages as well. These include rigidity. Since lower courts have no choice but to follow decisions of higher courts, bad decisions made in the past may be preserved.

Apart from that, there is the issue of complexity. The judgments are, by themselves, often very long and have no clear distinction between comments and the reasons for the decision. This will make it challenging in some cases to separate the ratio decidendi from the decision.

There would also be cases of illogical distinctions because the use of distinguishing, to avoid previous decisions, may lead to ‘hair-splitting’. The differences between these cases, therefore, may appear small and illogical.

Lastly, there is the slowness of growth. Some judges are acquainted with the fact that some laws need amendments. However, they cannot do anything about it unless it is brought before the courts. Therefore, there may be quite a while for a suitable case to be appealed as far as the Supreme Court.

Marks: 18/25

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Honestly, I don't know where the hell the rest of the marks went because I wrote one heck of a long essay. 

Oh well -.-

That's about it, then. CIAO!!

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