The doctrine of judicial precedent is the heart of the common law system. It is based on the principle of stare decisis. The doctrine of stare decisis is that a court makes a decision in a case then any courts which are of equal or lower status to that court must follow that previous decision if the case before them is similar to that earlier case. This provides certainty, consistency and clarity. The statement suggests that the doctrine of judicial precedent also provides flexibility to allow the common law to continually develop which functionally solves the age-old problem in law – balancing the need for certainty with the desire for the law to be flexible. By looking at how the judges decide cases and the exceptional cases which the judges depart from precedent, we will see to what extent the statement is correct.
The doctrine of stare decisis provides certainty, consistency and clarity. On the other hand, it also limits flexibility to allowing the common law to continually develop. By reason of contributing effectively to developing the law, the Practice Statement 1966 was issued by Lord Gardiner LC. The House of Lords (Now the Supreme Court) has been allowed to depart from its own previous decision when it ‘appears right to do so’.
Two years after the Practice Statement 1966, the House of Lords overruled their previous decision in Conway v Rimmer (1968) on a question of the discovery of documents for the very first time. In Miliangos v George Frank (1976), the House of Lords departed from the decision of the previous case of Re Havana (1961) by allowing damages to be awarded in any foreign currencies if they are specified in the contract. Although the provision in the statement was criticized as the House might have the tendency to abuse its powers by making law and not in accordance with the concept of Parliamentary Sovereignty, the House rarely departs from their previous decision and no case substantiate the criticism.
On the other hand, the Court of Appeal is still bound to follow decisions of the House of Lords and the interior courts are bound to follow their decisions. However, according to the principle given in the case of Young v Bristol Aeroplane Co Ltd (1944), the Court of Appeal is allowed to depart from its own previous decision if it falls with the recognized three categories of exception. Firstly, the Court of Appeal can choose between its own conflicting decisions. Secondly, if its own previous decision has been overruled expressly or impliedly by the House of Lords, it need not be followed. Thirdly, the court is not bound by its own decisions found to have been made per incuriam.
However, In the case of Davis v Johnson (1974), Lord Denning of the Court of Appeal attempted to avoid this rule. In the Davis case, the Court of Appeal allowed the victim of domestic violence to appeal by departing from previous decisions where injunctions had not been awarded in similar situations. In Miliangos v George Frank (1975), the Court of Appeal departed from the House of Lords decision of Re: Havana (1960) by awarding damages in foreign currency. When the case went up to the House of Lords, their Lordships held that the Court of Appeal had acted incorrectly, but nevertheless proceeded to depart from Havana. The House of Lords were on number of occasions, disapproved the manner of which the Court of Appeal seemed to ignore the directives of the practice direction and the fundamental doctrine of stare decisis.
However, judges do have many ways to depart from precedent. They can do it by distinguishing the material facts of the previous and the present cases. A superior court may also reverse the decision of an inferior court, and a superior court can also overrule the decisions of an inferior court. Moreover, with the enactment of the European Community Act 1972 and also the Human Rights Act 1998, Community law now prevails over domestic laws, and the courts were directed to comply with the Community laws and Convention rights. Under s.3 (1) of the Human Rights Act 1998, judges have a duty to strive to find a possible interpretation compatible with Convention rights. Under ordinary method of interpretation, a court may depart from the language of the statute to avoid absurdity. Undoubtedly, a court must always look for a contextual and purposive interpretation. Where the statute is inconsistent with Convention rights, certain courts may make declaration of incompatibility (s.4 HRA 1998). In the view of Lord Steyn in R v A (2001), a declaration of incompatibility should only be a measure of last resort.
Various later cases also show a positive development in English domestic law through its judicial decisions. In the case of R v R (Marital rape) (1991), the House of Lords abolished a 250 year-old immunity for the husbands from criminal liability for raping their wives. Their lordship justified the decision on the basis that the case was not concerned with the creation of a new offence but with their duty to act in order to remove from the common law a fiction which had become unacceptable. This decision was an example of the ability of the common law to evolve ‘in the light of changing social, economic and cultural development.
In another case of Airedale NHS Trust v Bland (1993), the question raised was whether a life support machine should be switched off when a person was in a persistent vegetative state. Although it contravenes the Convention rights (right to live), the House of Lords allow the termination. Similarly, in Re A (2000), pertaining to a conjoined twin, the House of Lords allowed the operation to proceed as recommended by the hospital despite objections from the parent. The House of Lords took into consideration the state of law on murder and the defense of necessity, and decided that a balance had to be struck on some very difficult issues.
The House of Lords does develop English domestic law through its judicial decisions. To a large extent, it does prove that there are positive developments of allowing the common law to continually adapt and develop. As stated by Lord Goff :
‘while certainty is much desired, the laws need to be flexible to meet the needs of the ever changing society.'
The doctrine of judicial precedent is a pragmatic system which achieves a balance between certainty and flexibility. Majority of judges follow the decisions of the previous cases. It provides not just an image of certainty, consistency and clarity, but also some degree of hierarchy which prevents the judges making arbitrary decisions based on their moods and favours. On the other hand, the doctrine has many gaps to permit judges departing from previous decisions. This allows the judges to overrule the law which are anachronistic in pursuit of development and preserving justice.
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