Analyzing Judicial Precedent in the UK Legal System

Analyze the system of judicial precedent including the advantages and disadvantages of the system

The United Kingdom primarily functions of a system that abides by conventions and derive its sources largely from the common law which are based on cases that have been decided by the courts or the judges, giving birth to the concept of precedent. The precedents then function as laws that are used to decided cases for the future. The judicial precedents then act as a binding force on cases that have similar facts or grounds of dispute and execute authoritative implementation on such cases deriving from well established precedents. This is also known as ‘Stare Decisis” meaning “Standing by a decision’ over newer cases.

In the case of Donoghue v. Stevenson [1932] AC 562, the doctrine of negligence was discussed and the House of Lords decided that it was on the manufacturer to be considerate and have a ‘duty of care’ towards the actual consumer. This historical case had gathered great momentum and was further utilized in the case of Grant v Australian Knitting Mills [1936] AC 85.

A judgment is ideally comprised of the ratio decidendi and the obiter dicta. The ratio decidendi is the primary reasons that held the judges reach to the decision and this reason therefore can be applied to the point of laws that are further established in future cases. Therefore, applying this ratio decidendi would form the binding precedent but Obiter Dicta is slightly different and consists of every other thing that the judge has stated in coming to a decision but not the legal reasons of the same. Thus, these are generally the feelings expressed or other things observed by the judges.

The English Mercantile law is derived from, The Common law, Equity, Statute Law, Case Law and Merchant Law. Lord Mansfield has been monumental in instilling the course of customs within mercantile law allowing more certainty. The case of Vallejo v. Wheeler had been a turning point for commercial laws established the importance of certainty for any trader therefore a stable and strong rule must govern them. This decision by Lord Mansfield acted as a precedent for Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan and Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’)

1. Arthur L. Goodhart, Case Law in England and America, 15 Cornell L. Rev. 173 (1930) Available at: https://scholarship.law.cornell.edu/clr/vol15/iss2/1 > accessed on 23rd April 2021
2. Sources of Business law, New Horizon college, < https://newhorizonindia.edu/nhc_kasturinagar/wp-content/uploads/2018/02/CHAPTER-1-Introduction-to-business-law-1.pdf> accessed on 27th July ’2020
3. Lord Irvine, May 2001, “The Law: An Engine for Trade”, THE MODERN LAW REVIEW Vol 64, NO.3
4. Vallejo v. Wheeler(1774) 1 Cowp 143

Advantages and Disadvantages of Precedent

The ultimate aim of any judicial system is to have a firm foundation that allows fairness and predictability which a precedent can ascertain since the legal points have been discussed and found to be full proof. The decisions of Supreme Court can also be seen to be overruled which allows room for flexibility and creates potential space to construct a new precedent. Since, the society is constantly changing and wider possibilities constantly arise, therefore, its important for the law to be flexible in order to adapt with the progressive times. The most important of all would be the quality of precedent to save time. Given the constant pressure on courts, lengthy procedures that need to be followed, it is only fair for the courts to appreciate and adapt mechanisms that allow saving time of the courts as well as the allies.

On the other hand, there are a few demerits that the course of precedent takes is the fact that there is a hierarchical structure that is followed, especially a courts that have the power to create precedent would be the European Court of Justice, followed by the Supreme Court, then the Court of Appeal and the Division Courts. Thus, maintaining this hierarchy, the system tends to be rigid as the lower courts are bound by the decisions pronounced by the superior courts. Thus, once a verdict has been given, it would require a long time to allow that decision to shift and could resist a flexible format in that case. Secondly, the number of judgments are extremely high and the possibilities of frequent precedents could make the process extremely complicated and bring about confusion. However, once the precedent is set by one particular judge, it is highly likely that the other judge would confirm with its position on the law, therefore could create a rift.

1. Supra 3
2. HL (Bailii, [2004] UKHL 49, House of Lords, Times 26-Nov-04, [2005] 1 WLR 1363, [2005] 1 All ER 175
3. Martin E, 2020 “Disadvantages of Judicial Precedent’, < https://www.ehow.co.uk/info_8501333_disadvantages-judicial-precedent.html> accessed on 23rd April 2021

Reflecting on the case of R v. James [2006], Lord Gardiner stated that this doctrine of precedent is “indispensable to the foundation” and can bring about certainty in deciding cases, however, he acknowledges the fact that this doctrine could often make the system rigid. In the case of Tai Hing Ltd v Liu Chong Bank [1986], the advice board stated that the doctrine of precedent could not be avoided at any cost and the lower courts had to follow them at any cost. This statement made by the Privy Council was also upheld in the case of R v. James, thus reflecting the contradictory position of precedent in the United Kingdom.

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Journals/ Articles

Arthur L. Goodhart, Case Law in England and America, 15 Cornell L. Rev. 173 (1930) Available at: https://scholarship.law.cornell.edu/clr/vol15/iss2/1 > accessed on 23rd April 2021

Sources of Business law, New Horizon college, < https://newhorizonindia.edu/nhc_kasturinagar/wp-content/uploads/2018/02/CHAPTER-1-Introduction-to-business-law-1.pdf> accessed on 27th July ’2020

Lord Irvine, May 2001, “The Law: An Engine for Trade”, THE MODERN LAW REVIEW Vol 64, NO.3

Martin E, 2020 “Disadvantages of Judicial Precedent’, < https://www.ehow.co.uk/info_8501333_disadvantages-judicial-precedent.html> accessed on 23rd April 2021

Cases

R v. James [2006]

Tai Hing Ltd v Liu Chong Bank [1986]

1. Ibid

Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan and Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’)

Vallejo v. Wheeler

Donoghue v. Stevenson [1932] AC 562

Grant v Australian Knitting Mills [1936] AC 85.