It is appropriate at this point to introduce the concept of the ratio decidendi of a case, this is the decision and more importantly the reasoning behind it. It is the ratio of a case that is binding, other comments merely form obiter dictum (other things said). Thus the establishment of the ratio is critical, the justification for a particular verdict is what forms the precedent. However this process is inherently flawed, as what constitutes the ratio of a case is open to interpretation.Coupled with the fact that judgements do not make the ratio specific and clear, with instances of Judges providing different justifications for the same verdict, the process detracts from legal certainty.
The ability to interpret and place different ‘spins’ on a case provides flexibility, the ability for lawyers to steer cases in the their favour and for Judges to uphold public policy considerations. It is clear that interpretation and argument allow for a great deal of flexibility and detract from legal certainty; it thus falls to consideration as to how far the mechanics of stare decis preclude this and provide rigid certainty.Assuming appropriate similarity it is court structure that decides upon the extent to which a precedent is binding.
Generally higher courts bind lower courts, the highest court in the English legal system being the House of Lords. Being the highest court within the English legal system court structure decisions of the HoL bind all lower courts. Initially it is of interest to consider whether the HoL should bind itself and the impact this has upon legal certainty.Prior to the Practice Statement (Judicial Review)  1 WLR 1234 the HoL considered themselves bound by previous decisions, this was rejected in the Practice Statement in favour of flexibility, the Lords arguing that adhering to its own decisions may restrict the development of the law. The significance of this ability should not be underestimated and it has the potential to seriously detract from legal certainty, this is minimised however by the various layers that must be travelled through to reach the HoL and further by the fact that this is a sparsely used power.Examples are available from all areas of law; in British Railways Board v Herrington2 it was held that changes in societal attitudes and public policy allowed a duty of care to be imposed upon British Railways with regard to the upkeep of fences. This departed from earlier decisions restricting the circumstances in which a duty of care is owed.
In criminal law R v Shivpuri3 the law of criminal attempts was altered, overruling the previous decision of Anderton v Ryan4 simply on the basis that the earlier decision was considered incorrect.It is submitted that this case represents the broadest use of the power, Food Corp. of India v Antclizo Shipping Co.
5 suggesting narrow confines to the power of the Lords to depart from previous decisions (although this case is not referenced in later cases where the HoL has overturned its own decisions e. g. Pepper v Hart6. The impact upon legal certainty in reality is questionable. The Court of Appeal provides far more issues when dealing with precedent, generally the CoA is bound to follow decisions of the HoL.However there have been instances where this has not been the case. Lord Denning led multiple attacks on the doctrine on precedent in this context, none of which can be considered successful. It has been considered that a precedent may be ignored where the precedent was established per incuriam, where a decision was made with significant oversight.
There is a distinction between significant oversight and making an incorrect decision, the former involves an utter failure to take into consideration relevant authority.The per incuriam approach was adopted in Broome v Cassell7, however on appeal to the HoL the approach of, specifically Lord Denning in the CoA was rebutted as an attempt to by pass the doctrine of precedent rather than a legitimate use of the rule. Thus although the exception exists its application is limited, it does not represent a severe threat to legal certainty, however it provides a ‘loop hole’ that can be utilised to ensure that the system is not without a check and balance, providing a degree of flexibility.The is also scope for the CoA to side step precedent utilising an argument expounded in Schorsch Meir GmbH v Hennin8.
Here it was argued that where the reason for a precedents existence ceases to exist so does the legal rule. The extent to which the CoA is bound by its own previous decisions provides the greatest cause for concern with regard to certainty, largely due to the courts workload and the potential for parallel judgements. Where conflicting precedents exist, the CoA may choose between its own decisions, the one that is not chosen is overruled.As the CoA hears such a large amount of cases this has the potential to leave the law in an incoherent state. There is little that can mitigate this inherent flaw in the system, however the CoA is not bound by its own decisions where that decision is found to be made per incuriam. This is limited to where ignorance of authority lead to faulty reasoning (Morelle v Wakeling9. This provides a tool by which a level of certainty may be obtained as careful legal study can yield such issues and they are often well published in academic literature.The application of this rule has not been frequent however and overall it is submitted that at the CoA level the doctrine of precedent’s flexibility encroaches upon legal certainty to an unacceptable level.
With regard to other courts the doctrine of precedent is far more rigidly applied. It is submitted that this is appropriate to provide certainty. Again there are issues where cases are decided simultaneously however as actual legal principle is rarely laid down in such courts the impact is limited.Flexibility in this regard is encroached upon more by the expense of appeal than by the provision of certainty. It is not appropriate to undermine certainty at this level, however in many cases appeal is limited due to expense, limiting access to justice and preventing the evolution of the law. The Privy Council provides persuasive precedent only, however it is submitted that these decisions carry great weight and despite not being binding upon the HoL they aid legal certainty to the extent that they reflect the views of many Law Lords.It is further appropriate to mention that the European Court of Justice takes precedent over English law, this provides a framework for greater certainty across Europe. It is clear that the doctrine of precedent represents a system with flaws that compromises both flexibility and certainty in different areas.
The balance achieved between the two overall may be deemed satisfactory to the extent that the problems are no inherent in the precedent system but embedded in adversarial common law.The main issues arise from interpretation, the discovery of the actual ratio and principles of law rather than the mechanical operation of the stare decis. To this extent the doctrine of precedent actually provides a limiting framework that prevents this spiralling out of control, removing all certainty.
It has been illustrated that the are the operation of precedent is itself an uncertain area of law, this provides the degree of flexibility required for creative development, providing flexibility.Bibliography and ReferencesKelly ; Holmes Business Law 4th ed. (2002) (London : Cavendish) Holland J. and Webb J. (1999) Learning Legal Rules (Blackstone Press Ltd: London) Harris J. W.
(1990) “Towards Principles of Overruling – When Should a Final Court of Appeal Second Guess? ” Oxford Journal of Legal Studies, vol. 10, p. 135 Keenan, D.
(2003) Smith ; Keenan’s Law for Business (12th ed. ) Waldron J. (1997) The Law (Routledge: London) “The Menace That Wasn’t” (2004) The Economist, 13th-14th November