The Doctrine of Precedent

Griffith College
  Introduction
 Purpose/aims of Precedent
 Necessary Basis/Requirements
 Stare Decisis
Lecture  Binding Authority

overview
 Persuasive authority
 Vertical Precedent
 Horizontal Precedent
 Departing from Precedent
INTRODUCTION
 Byrne and McCutcheon
Appeals to precedent, that is the
seeking guidance for current practice
from past events, are common in many
systems.
Following precedent ensures the
consistent application of the law.
 The Doctrine of Precedent
 The doctrine of precedent is of particular importance in common law systems.
 Seeks to ensure consistency in our legal system:
 The law is applied equally
 Law becomes predictable

 While the courts should follow previous decisions, there are a number of complex factors
involved.

 Moreover, when a court is said to be bound by an earlier decision it does not mean that
everything in the earlier decision is binding.
 The part of the judgment that is binding is the ratio decidendi (the reason for the
decision)
 Considine v Shannon Regional Fisheries Board [1994] 1 ILRM 499 case Costello J:
 …undoubtedly there may be instances where the ratio of a case is not always
easy to discover…the principle is clear. The ratio of a case is discovered by
determining what proposition of law justified the decision in the light of the
material facts which the court decided.
 The Doctrine of Precedent

 Professor Arthur L. Goodhart, in his article, ‘Determining the Ratio

Decidendi of a Case’, 40 Yale L.J. 161 (1930) stated:
 ‘The principle of the case is found by taking account of (a) the
facts treated by the judge as material, and (b) his decision
based on them.’

 Professor Cross in his article ‘The Ratio Decidendi and a Plurality

of Speeches in the House of Lords’ (1977) 93 LQR 378:
 ‘A case can comprise a number of rationes. One should select
that which could be said to attract the support of the
majority.’
 Other statements of law in the judgment which are not of direct relevance
to the decision are called the obiter dicta.
 These are not binding but are of persuasive authority and may be adopted
by later court.

 Lopes v Minister for Justice, Equality and Law Reform [2014] IESC
21
It is true that lower courts, in our system and in many others, are bound
by the decisions of higher courts. It is, however, the actual decision of
the higher court itself (rather than the views of individual judges of those
higher courts – where the court concerned consists of more than one
member) to which that principle applies. A judge of a lower court is not, in
any way, bound by the views of a judge of a higher court which does not
represent the majority view of that court (and thus form part of the
decision of that court)
Purpose of Precedent
1. Legitimises A Decision Of The
Court
 Itprevents judges from making decisions
based on personal opinion rather than
established law.
 Decisions with no basis in law
 Decisions are based upon previous
decisions, which have the force of law.
 2. Creates A Uniformed Body Of
Principles And Rules
 As decisions are consistently applied, the
rules and principles contained within them
act as rules of law.

 Enables practitioners and members of the

public to predict the likely outcome of cases,
and arrange their conduct accordingly.
3. Restricts The Discretion Of The Trial
Judge

 Guardsagainst decisions being handed

down with no legal basis.

 Ensuresthat decisions handed down

have some rational basis.
4. Preserves Public Confidence In The
Judiciary

 Court decisions are based upon set rules

and principles which limit the discretion
of a judge.
 The public is safe in the knowledge that
decisions handed down are done in
accordance with the principle of justice.
 NECESSARY
BASIS/REQUIREMENTS
 1.Hierarchy Of The Courts

 It determines what decisions must be followed.

 Lower courts must follow the decisions of higher

courts

 Courts of equal jurisdiction can choose whether to

follow each other’s precedent.
2. Accurate And Reliable Recording And
Reporting Of Decisions

 In order for a subsequent court to follow earlier

decisions, there will need to be accurate and reliable
recording of the decisions.
 This ensures that the law is applied correctly.
 IR; ILRM etc.
 These are accessible to everyone.
3. The Legal Community Accepts Binding
Precedent

 Practitioners and the judiciary must be willing to

acknowledge and accept earlier decisions of
higher courts.
 The Doctrine Of Precedent
 The aim is to provide consistency and
predictability in the law.
 Consistency, certainty and predictability-
values that should be pursued.
 Decisions from higher courts need to be
applied consistently
 This ensures that the law stays predictable,
and practitioners and members of the
public have a clearer idea of what to expect
if they take a case to court.
STARE DECISIS
 STARE DECISIS

 Latin term meaning “let the decision stand”.

 ‘[T]he principle of stare decisis reflects the expectation that earlier

cases be followed’. (Byrne and McCutcheon)

 Some decisions are of binding authority:-

 Supreme Court decision are binding on lower courts.
 High Court decisions are binding on lower courts i.e. not the Supreme
Court.
 An inferior court must follow the earlier decisions of superior courts.
Vertical And Horizontal Precedent
 Vertical And Horizontal Precedent

 Due to the hierarchical structure of the court system there are

two dimensions to the system of precedent
 Vertical Precedent

 The Court of Appeal must follow decisions of Supreme Court

 The High Court must follow decisions of the Court of Appeal &
Supreme Court

 The Circuit Court must follow decisions of the High Court, the Court of
Appeal and the Supreme Court

 The District Court must follow decisions of all of the higher courts.
 The State (Harkin) v O’Malley [1978] IR 269
 The High Court is bound to follow an earlier
Supreme Court decision, which the Supreme
court then overruled because it was reached
per incuriam.

 DPP (Walsh) v Cash [2007] IEHC 108

 The High Court noted that it was bound to
follow the Supreme Court decision despite
 Where a lower court is bound by the decision
of a higher court it must follow the decision.

 The parties have the right to appeal.

 Horizontal Precedent

 While a court is not bound to follow the

decisions of courts of equal jurisdiction, in
practice, the courts usually do.
SUPREME
COURT
DECISIONS
 Supreme Court Decisions

 Binding precedent on all lower courts

 The court generally respects and follows its previous
decisions.
 Supreme Court may depart from its own precedent
only in exceptional circumstances.
 Supreme Court Decisions

 The State (Quinn) v Ryan [1965] IR 110

 Facts

The prosecutor challenged the constitutionality of s.

29 of the Petty Sessions (Ireland) Act 1851.
 SC Held
The advantages of Stare Decisis are many and
obvious so long as it is remembered that it is a policy
and not an unalterable rule.
Declared its freedom to depart from a strict
adherence to the rule.
 Supreme Court Decisions

 Attorney General v Ryan’s Car Hire [1965] IR

642
The rigid rule of stare decisis must in a court of
ultimate resort give place to a more elastic
formula. Where such a court is clearly of the
opinion that an earlier decision was erroneous it
should be at liberty to refuse to follow it at all
events in exceptional cases.
 Supreme Court Decisions

 McNamara v E.S.B. [1975] IR 1

 Gave a number of indicators as to what ‘exceptional
circumstances’ are.
 The law can be adapted in light of changing social
conditions and legal thinking.
 If by reason of its rigidity or harshness, a rule is found
to be unsatisfactory then it should be reconsidered.
 Supreme Court Decisions
 Mogul of Ireland v Tipperary (North Riding) County Council [1976] IR
260
A decision of the full Supreme Court, given in a fully-argued case and on a
consideration of all the relevant materials, should not normally be overruled merely
because a later Court inclines to a different conclusion.
Error should not be reinforced by repetition or affirmation, and the desirability of
achieving certainty, stability, and predictability should yield to the demands of
justice.
However, a balance has to be struck between rigidity and vacillation, and to
achieve that balance the later Court must at the least, be clearly of opinion that the
earlier decision was erroneous.
Even if the later Court is clearly of opinion that the earlier decision was wrong, it
may decide in the interests of justice not to overrule it if it has become inveterate
and if, in a widespread or fundamental way, people have acted on the basis of its
correctness to such an extent that greater harm would result from overruling it than
from allowing it to stand.
 Supreme Court Decisions

 Desmond v Moriarty [2018] IESC 34 at [98]

 There is a ‘heavy burden’ to convince the
Supreme Court that an earlier decision is ‘clearly
erroneous’ or that there are ‘compelling reasons’
for overruling it
COURT OF
APPEAL
DECISIONS
 Court of Appeal

 Binding precedent on all courts of lower

jurisdiction.

 O’B v Patwell [1994] 2 ILRM 465

 Held
 The Supreme Court noted that the High Court
was bound to follow two decisions of the Court
of Criminal Appeal, which it then proceeded to
overrule as having been incorrectly decided.
 Court of Appeal

 Court of Appeal has indicated a

willingness to depart from previous
own decisions, where interests of
justice so require.
 Court of Appeal

 ACC Loan Management v Connolly [2017] IECA

119, [2017] 3 IR 629
Although this court has not yet since its establishment in October
2014 been required to formulate its own rules regarding stare decisis,
I think that by analogy with the doctrine of precedent applicable in
the case of prior decisions of a coordinate court, then absent special
circumstances, an individual member of this court should normally
yield to the prevailing consensus as reflected in prior decisions of this
court which are clearly on point and which, in the words of Finlay CJ in
Finucane v McMahon, represent decisions ‘reached after the most
comprehensive and detailed consideration of all the relevant factors’.”
HIGH
COURT
DECISIONS
 High Court Decisions

 Binding precedent on all lower courts

 High Court may depart from its own

precedent where there are substantial
reasons for believing initial judgment
wrong.
 High Court Decisions

 Kearns v Manresa Estates Ltd (25 July 1975), HC

[…] Although I am not bound by decisions of other judges
of the High Court, the usual practice is to follow them
unless I am satisfied that they were wrongly decided.

 The High Court is not bound by previous High Court

decisions.
 However, it gives serious consideration to them.
 High Court Decisions

 Irish Trust Bank Ltd. v Central Bank of Ireland [1976-

7] ILRM 50
A court may depart from a decision of a court of equal
jurisdiction if it appears that such a decision was given
in a case in which either insufficient authority was cited
or incorrect submissions advanced or in which the
nature and wording of the judgment itself reveals that
the judge disregarded or misunderstood an important
element in the case or the arguments submitted to him
or the authority cited or in some other way departed
from the proper standard to be adopted in judicial
determination.
 High Court Decisions

 Irish Trust Bank Ltd. v Central Bank of Ireland [1976-7]

ILRM 50
If a decision of a Court of first instance is to be challenged
I consider that the appellate court is the proper tribunal to
declare the law unless the decision in question manifestly
displays some or more of the infirmities to which I have
referred.

The principle of stare decisis is one of great importance to

our law and few things can be more harmful to the proper
administration of justice […..] than the continual existence
of inconsistent decisions of Courts of equal jurisdiction.
 High Court Decisions
 Re Worldport Ireland Limited [2005] IEHC 189
 Court Considered the circumstances in which it was appropriate for a
judge of the High Court to revisit an issue recently decided by another
judge of the court.
 HC (Clarke J) Held:
It is well established that, as a matter of judicial comity, a judge of first
instance ought usually follow the decision of another judge of the same
court unless there are substantial reasons for believing that the initial
judgment was wrong… Amongst the circumstances where it may be
appropriate for a court to come to a different view would be where it was
clear that the initial decision was not based upon a review of significant
relevant authority, where there is a clear error in the judgment, or where
the judgment sought to be revisited was delivered a sufficient lengthy
period in the past so that the jurisprudence of the court in the relevant area
might be said to have advanced in the intervening period
 High Court Decisions
 Re Worldport Ireland Limited [2005] IEHC 189
 HC (Clarke J) Held
In the absence of such additional circumstances it seems to me that
the virtue of consistency requires that a judge of this court should
not seek to second guess a recent determination of the court which
was clearly arrived at after a thorough review of all the relevant
authorities and…based on forming a judgment between evenly
balanced argument.
If each time such a point were to arise a judge were free to form his
or her own view without proper regard to the fact that the point had
already been determined, the level of uncertainty that would be
introduced would be disproportionate to any perceived advantage in
the matter being reconsidered.
 High Court Decisions

 ReWorldport Ireland Limited [2005] IEHC

189
 Where it was clear that the initial decision was not based
upon a review of significant relevant authority
 Where there is a clear error in the judgment
 Where the judgment sought to be revisited was delivered
a sufficient lengthy period in the past so that the
jurisprudence of the court in the relevant area might be
said to have advanced in the intervening period
PERSUASIVE AUTHORITY
 Persuasive Authority

 Some decisions are of persuasive

authority:-
 Decisions reached per incuriam.
 Decisions of courts of equal jurisdiction.
 Decisions of courts of lower jurisdiction.
 Decisions of international courts.
 Whilethe court is not bound to follow
persuasive authorities, they can
provide useful guidance to the court
 Per Incuriam Decisions

 Thisis a decision based in ignorance of

a binding authority

A decision that wrongly interprets an

existing precedent or statute or statute
which is not binding.
 Decisions Of Courts Of Lower
Jurisdiction
 Not binding
 English Decisions In Ireland

 Not binding

 Can be persuasive

 English
decisions can be used to analyse the
development of a common law principle.
 English Decisions In Ireland

MMcC v JMcC [1994] 1 IR 293

Held
I think I have liberty to give effect to this opinion
even though it is contrary to decisions of the
English Courts on the subject. These decisions are
of persuasive weight and should not be lightly
ignored. But the Irish Courts are not bound by
them and I think I am not required to follow
decisions which misconstrued the effect of an
earlier decision of the House of Lords…
 International Decisions

 Not binding
 Decisions of other courts in other
countries can be persuasive, particularly
other common law countries.
DEPARTING FROM PRECEDENT
1.Distinguishing The Case

 Must distinguish the case on its facts.

 A case can be distinguished because the material facts are different or
because the legal issues are different.
 A mere difference in facts is not sufficient to distinguish a case, as every
case will have different facts.
 If there is a difference in material facts, the case can be distinguished.
 Where a court reaches the decision that it is not relevant to the case
before it.
 The effect of distinguishing a case from earlier precedent is that the court
is not bound to follow it.
 However, the precedent still stands and can be followed by other
subsequent courts where appropriate.
2. Overrule Earlier Decision

 Overrule the earlier decision as bad law .

 The precedent is no longer valid or applicable.
 A court can overrule the earlier decision of a lower
court where it is of the opinion that the earlier
decision was decided erroneously.
 The effect of overruling a decision does not affect the
parties to the original decision.
 It provides that the decision is not to be followed in
subsequent cases.
3. Per Incuriam

 If the previous decision was Per Incuriam it is not binding.

 This is where a court might have reached its decision in ignorance of
a binding authority or a relevant statute.
 Reaching a decision without considering or taking into account a
relevant law or precedent
 It does not establish a binding precedent
 Later courts are not bound to follow it.
4. Sub Silentio

Where it appears that a court

decided a point without it
being specifically argued or
mentioned in the judgment.
5. Compelling Reasons

 The Supreme Court can divert from the principle

of stare decisis in exceptional circumstances.

 Courtof Appeal can divert from the principle of

stare decisis in the interests of justice.

 HighCourt can divert from the principle of stare

decisis where there are substantial reasons for
doing so.