Doctrine Of Judicial Precedent And Its Importance In English Law: Analysis Of Broome V. Cassell Case

The Significance of Judicial Precedents in English Law

Law is considered as a set of rules and regulations that binds society and everyone is duty-bound to follow the law, in the same way, courts are bound to follow the precedents in cases comprising of identical facts and issues for a just conclusion. The doctrine is the most popular one which has been obtained from the concept of stare decisis which means to stand by the precedents. This doctrine applies in those circumstances where courts find it difficult to make any decision. The provided case of Broome v. Cassell is an important case on libel, raising an important legal issue concerning exemplary damages and the role of precedents in English Law, further, the case upholds the importance of judicial precedents under English Law. In this case, Lord Hailsham; stated that lower courts have to follow the set precedents and cannot retract from the norm while deciding cases having the same facts and circumstances as retracting might cause a miscarriage of justice. The given case has decided upon the importance of following the judicial precedents and that lower courts are duty-bound to follow the precedents and cannot move beyond that. Lord Hail sham stated that the lower courts are obliged to follow whatever precedents are set by the higher courts and cannot retract from the same while deciding any cases which has similar facts. The following paper highlights the statements given by Lord Hailsham in the above-mentioned case and the significance of the Doctrine of the Judicial Precedent and if it is possible to retract from the previously decided cases.

Judicial Precedents are considered an important source of law that is derived from previously settled and held cases by the higher courts which duty bounds the other courts to follow them in cases of alikeness. This doctrine is developed on one of the fundamental aspects that all cases having the resemblance of the facts are to be decided by precedents in order to save the time of the court. As a general rule, courts have to adhere to the rule of law for the proper outcome of the case and are required to apply their judicial mind, but in situations of having being faced with identical facts, courts have to follow the set norms. In the case, Broome v. Cassell & Co. the case discussed the importance of stare decisis in English Law and how the judicial precedents have been evolved, apart from that it discusses the issue as to whether can court of appeal direct lower courts to ignore the precedents as being unworkable and to decide per in curium. In the said case the House of Lords was unsatisfied with the decision taken in   Rookes v. Barnard, where instead of following the precedent decided the case as per the judicial mind, the House of Lords, ordered that such a reversion is not allowed by the lower courts.

The basic idea behind following the precedents is that those decisions which hold legal authority upon being pronounced must obviously be hop to later judges to ensure certainty and fairness within the system. These are based on the concept of Doctrine of Stare decisis et non quieta movere, which implies that to uphold the previous decision and not to interfere with what is previously settled, the precedents are divided into two Ratio decidendi and the Orbiter Dicta, the first one i.e. the ratio decendi is the binding precedent and act as the basic legal guidelines that underline the choices, they also make a way for the future cases which having the similar conditions should be followed, and the second is the persuasive precedent. In the case, Seminole Tribe of Florida v. Florida, court held, the doctrine of Stare Decisis is not an inevitable order, and in those cases where the previous decisions are badly given whereby it could lead to a miscarriage of justice, then in such a case precedent cannot be followed. The ratio decendi is still considered important as a source of law around the world because it has been derived from the principle that once a rule or decision has already been decided or given by the court in the past then no retraction should be made from that and there is no need to change it. Another one is the Orbiter Dicta, these are the statements made by the judges during the course of judgments that are not that binding but in some cases can be applied by the courts.   In the case, Young v. Bristol Aerplane co Ltdcourt declared that the courts are bound to follow the judicial precedents in cases where there is first, its own previous decision is in conflict, Secondly, where a previous decision has been overturned by the lower courts, where a previous decision been made per in curium.  In the case, London Street Tramways co Ltd v. London County Council, the court held, a decision was once pronounced on a certain legal point will be final and it will become unfeasible to raise a similar question again and again as a retraction from any established principle cannot be allowed.

The Broome v. Cassell Case: An Analysis

In cases where due to the constitutional position judges have always been considered the ones to declare the law, it becomes necessary to apply the said principle as it is however, in certain cases the lower courts can retract from the binding principle and follow their own reasoning in order to reach a just conclusion for the case. In the case, R v. Howe, the court held, while deciding the precedential weight it should be considered that Ratio Decidendi which is to be applied is binding on the other judges as well.

Lord Hailsham’s directions in   Broome v. Cassell, stated the hierarchical category of the English Legal system and the obligations of the lower courts in following the judicial precedents that the lower courts are duty-bound to follow and explained that the court of the first instance or the lower courts cannot move away from the same as a moral responsibility and refused to follow the decision of House of Lords in the case Rookes v. Barnard, where Lord Denning suggested that following the judicial precedents is not important and a retraction from the same can be made in order to reach to a fair decision of the case. This suggestion was not received by Lord Hailsham in a positive manner and he rebuked Lord Dennigs decision in that case.

However, in certain cases, it is not the rule that can be avoided on the basis of per in curium, in case of uncertainty, where the court is of the opinion that application of the judicial precedent will not bring about the just decision of the case, judicial precedents impose the obligations on the lower courts. Generally, a court of appeal has an obligation to adhere to its own previous decision except in certain exceptions, the court is not bound to follow precedents in those cases where its own previous decisions are in conflict. In the case, Tiverton Estates Ltd v. Wearwell Ltd, the court held; that one court can refuse to apply the precedents of another court on the reasoning that such a previous decision could be wrong and could create doubt and confusion if applied the facts of that case. In the earlier 18^th  Century the role of courts use to be restrictive and whatever decisions were taken were used to be binding on the other courts as an obligation, but this view has been changed in the 21^st century as the judges do not make the law and it is the parliament that makes the law so a retraction from the previously decided case can be made in order to reach a just conclusion and that will be fair and justified if the judge is of the opinion that application of the precedent could lead to lead to failure of justice and also a violation of the rights of the parties involved.  In the concept of Judicial precedent, the courts are bound to follow the decisions imparted in the previous judgments, however, this concept is not applicable in totality across the board, especially in those cases where such precedent is unworkable, as it should be considered that departing from an established judicial precedent is finally a matter of judicial discretion. In those cases where the particular precedent is inapplicable, the courts are to apply their own reasoning to reach to a just conclusion of the case, if the precedents are applied in totality then it would break question the credibility of the courts as the precedents can only be applied in those cases where the facts are similar to that of previously decided cases, there a  retraction is not possible but if the facts are not similar and there is no precedent for the same, there courts can apply its judicial minds to reach a justified conclusion because in such situations applying the applying any precedent which is unworkable or per in curium would question the credibility of the judges. although without any judicial precedents judges would be able to apply their own discretion and would decide the best outcome in any decision, it is the judicial precedents that make the entire law and the legal systems, the application of which has been continued from the ages and imparts a totally distinct character to the system, besides that judicial precedents holds importance as they protect the rule of law by providing certainty on the deciding the law in those cases where the lower courts are faced with a dilemma. The higher courts being the official judicial persons holds the authority to pass judgment and give them the name of judicial precedents so as to give ease to the lower courts by applying those decided cases in such matters having similar facts and circumstances to impart proper justice. Thus, considering all such factors the precedents must be taken as having the force of law but must be neither ignored nor should it be applied in totality across the board. Since the law is based on society and society being dynamic it evolves in itself, so there might be situations where a precedent would not apply and the judge becomes bound to apply its discretion as to whether any particular precedent would be applicable or the judge has to decide on its own, the judges have the duty to apply their minds according to the changing societal, cultural and economic development there a judge can overlook and provides its own judgment without departing from any precedent. Thus the higher courts are though the authority to pass a judgment that should become a precedent but then it will not become applicable in totality and it is the description of the judge whether to apply such precedents or not.

The Role of the Judicial Precedents and the Obligations of Lower Courts

Conclusion

The courts are regarded as the supreme authority to protect the righst of the individual by providing favourable judgements. So they are required to follow the set established norms. If any court retracts from the judicial precedent and does not apply it will be considered that the lower courts are dismissing the orders of the higher courts. The concept of judicial precedents is derived from the doctrine of stare decisis according to which once a court has decided authority on a case, retraction from the same cannot be allowed as it places an obligation on lower courts to follow the precedents established. In cases where due to the constitutional position judges have always been considered the ones to declare the law, it becomes necessary to apply the said principle as it is however, in certain cases the lower courts can retract from the binding principle and follow their own reasoning in order to reach a just conclusion for the case. However, these is not applicable in totality as it could lead to miscarriage of justice in those cases where the facts and situation and even the laws are not the same, there courts are free to apply their own discretion to reach a just conclusion. The above paper highlighted the statements given by Lord Hailsham in the case and the significance of the Doctrine of the Judicial Precedent and can it is possible to retract from the previously decided cases.

References

Anghel E, 'Judicial Precedent, A Law Source' (2017) 24.2 Lesij-Lex Et Scientia International Journal 24.2 (2017): 68-76.

Bobic A, and Dawson M, 'Court Of Justice Quantitative Easing At The Court Of Justice – Doing Whatever It Takes To Save The Euro:Weiss And Others' (2019) 56 Common Market Law Review

BROUARD S, and HÖNNIGE C, 'Constitutional Courts As Veto Players: Lessons From The United States, France And Germany' (2017) 56 European Journal of Political Research

Clark R, 'Piecing Together Precedent: Fragmented Decisions From The Washington State Supreme Court' (2019) 94 Wash. L. Rev.  

Epps D, and Sitaraman G, 'How To Save The Supreme Court' (2019) 129 Yale LJ

George A, Case Studies And Theory Development: The Method Of Structured, Focused Comparison (Springer, Cham 2018)

 Harrison J, 'The Political Question Doctrines' (2017) 67 Am. UL Rev.

Hobbes T, The Elements Of Law Natural And Politic (1st edn, Routledge 2019)

Kozel R, 'Precedent And Constitutional Structure' (2017) 112 Nw. UL Rev.

Mawar D, 'The Perils Of Judicial Restraint: How Judicial Activism Can Help Evolve The International Court Of Justice' (2018) 9 Goettingen J. Int'l L.

Murphy R, 'Abandon Chevron And Modernize Stare Decisis For The Administrative State' (2017) 69 State. Ala. L. Rev.

Pohlman Z, 'Stare Decisis And The Supreme Court(S): What States Can Learn From Gamble' (2019) 95 Notre Dame L. Rev.

Schauer F, 'Stare Decisis—Rhetoric And Reality In The Supreme Court' (2018) 1 The Supreme Court Review

Shughart II W, 'Gordon Tullock's Critique Of The Common Law' (2018) 23 The Independent Review

Staeinman A, 'Case Law' (2017) 97 Case Law. BUL Rev.

Ulici d, 'Obiter Dictum Si Ratio Decidendi' [2018] Jurnalul Baroului Cluj

Broome v. Cassell  (1972) 2 WLR 645

London Street Tramways co Ltd v. London County Council (1898) AC 375

R v. Howe (1987) 2 WLR 568

Rookes v. Barnard (1964)AC 1129

Seminole Tribe of Florida v. Florida 517 U.S. 44 (1996)

Tiverton Estates Ltd v. Wearwell Ltd  (1975)Ch. 146 (CA)

Young v. Bristol Aerplane co Ltd (1994) KB 718, CA