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Amir Jafri bin Ahmad Jaafar

CL18 Commercial Law


Ms Catherine Cheng
H00299549
BSc Quantity Surveying
6 June 2018
(1525 Words)

Doctrine of Precedence as a Source of Law

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The doctrine of precedent, or judicial precedent, is among the five formal
sources of Scottish Law, which also include legislation, the institutional writers,
authoritative writings, custom and equity, derived from similar sources to those of UK
law. The doctrine of precedent is based on case law. In these parts of Scots Law, the
decision of past cases may be binding on later courts. Within the areas of this part of
Scottish Law, cases that are considered alike, are decided in a similar manner.
According to the Oxford Dictionary of Law, the definition of judicial precedence is a
“judgement or decision of a Court used as binding to acquire a similar decision in
subsequent cases.” There are two various judicial precedence, which are; binding
and persuasive. It is imperative that Courts within strict guidelines of the judicial
precedence so that any inconsistencies are avoided. Greater certainty to the judicial
system, which is pivotal in upholding the interests of justice. It is not agreed that
judicial precedent completely solves everything, however, instead debates occur that
many of the principles are weak and outdated. This is maybe factored to the judicial
precedent does not factor passing time and such decisions that are made a long
time ago by a Court of Appeal, for example, remain to be followed until “it is noted by
another Court of Appeal or overturned by the Supreme Court.” Judicial precedence
that have been set by more superior courts in the hierarchy will then be binding upon
all lower Courts in the opposite event the same Court or the Supreme Court has
reversed any past decisions.

To ensure order for the doctrine of precedent to operate, there needs to be a


hierarchy of courts. Law of courts within the hierarchy must follow earlier decisions of
the superior courts. For example, in the heirarchy of the Criminal Court, The Justice
of the Peace Court follows the High Court of Justiciary, which then is bonded by
Supreme court and so on. Decisions must be recorded in a reasonably accurate and
accessible manner. Within the judicial hierarchy it is important that the lower courts
accept the binding precedent of superior court decisions. (Smith T.B, 1962) analyses
judicial precedence as certainty in practice yet warns of over-reliance on precedents.
Among the advantages of doctrine of judicial precedent are:

 The doctrine of precedence permits consistency situations, where similar


cases are treated the same
 It provides some flexibility to the law, letting it develop gradually as society
and the economy develop. Looking at Donoghue v Stevenson, 1932, the
delictual liability of a ginger drink manufacturer for negligence at common law
was first established in the ‘neighbour’ principle. It has been extended by later
courts gradually and by analogy to other areas such as the liability for
professional negligence of the case Martin v Bell Ingram, 1986.
 Real situations can be responded to by case laws and so decisions are
detailed, fine and relate to past experience of other cases
 The consistency in the system prevents judges to a certain degree, from
acting on personal judgement and therefore provides a uniform platform of
justification.
 A good example on judicial precedence’s effectiveness is shown in the
example of Hunter and Others v Canary Wharf Ltd and London Dockland

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Development Corporation ,1997. Here, an original precedence was not
formed by the Court and could merely apply an established principle that
happened before the case.

However, some of the disadvantages that judicial precedence may present are:

 Development of law moves at a slower pace if an old precedent that is not up


to date is practiced or followed
 In smaller sized countries like Scotland and, lack of case law on many issues.
This has lead to reliance on English cases in areas where law between
England and Scotland is similar
 It is difficult for a decision to be made by a court the application of a
precedence, most importantly where an undesirable result may occur. In this
matter, where there are conflicting precedents of same magnitude. This may
lead to an arbitrary decision by a court as to whether a precedent should be
applied.
 A precedent may be hard to discover; a case may not be reported at all or be
badly reported, with important issues missing from the law report. Or report
only happens yeas after the events of the case hearing.
 All relevant precedents should be referenced to the court in spite of whether it
has been reported to court. Since the arrival of electronic database of caselaw
such as Lexis, too many cases may overwhelm the court, which may in the
end lead to a withdrawal from a binding precedent, as is being seen in the
USA today.

For a precedent in point, not everything the judiciary says needs to be followed
precisely. The binding authority is the ratio decidendi or reason for the decision. A
lower court in the hierarchy must adhere to the prior decisions of earlier superior to it
in the judicial hierarchy. Also, a court is generally expected to follow the earlier
decisions of courts of equal/ co-ordinate jurisdiction. They are also not bound by the
foreign court’s decisions or of inferior courts, but such decisions may be persuasive
with other things said. Understanding the terminology of Ratio decidendi, If the
doctrine of precedent is the principal rule in judicial decision making the ratio and
obiter dictum are important principles within the doctrine of precedence. Ratio being
binding part of the judgement and is the most important aspect and should be
applied in later cases. It is judicial reasoning where if we look at a case, facts,
relevant law, and reasoning from court by analysing the law and evaluating the
evidence and applying the law to facts of the case. When it comes to determining it –
reasoning operates to explain the motive and to solidify that it has been achieved in
agreement with pre-existing law. Some factors to note are as follows;
1. Ratio is based on the facts

2. Necessary part of the courts decision

3. Discovery of ratio is largely a matter for interpretation by later courts

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Obiter dictum are the matters and other things that are said when discussing a
case. The proposition of law contained in the judgement which is not binding is
labelled obiter dictum. Obiter dictum is of persuasive authority and may be adopted
or used by example as an option of a later court, The courts use it in helping reason
and analysis, as most of the points are not of direct relevance. Furthermore, it does
not bind further courts. Due to its persuasive value, suitable obiter dictum from
earlier cases can later be taken through a development of common law and applied
as ratio decidendi. It may be normal for a statement which was obiter in one case to
be picked up as a correct statement of law in, and therefore to form the ratio
decidendi, of a subsequent case. The value of obiter dictum relies on variety of
factors which includes the court in which it was delivered, the method that it has
been handled with in subsequent cases and its similarities in the instant cases of
relevance.
The civil courts in Scotland sternly apply judicial precedence. In the norm,
appellate courts bind courts of first instance, and superior courts bind less superior
ones. The civil courts consist of the Supreme Court and The Court of Session and
the Sheriff Court (Black, 2015) Precedent is applied in a manner more flexible in the
criminal courts than in civil courts, because potentially, liberty isat risk to case of
courts that go out on circuit, it is troublesome to possess all the law reports
everywhere that the court might sit. Jurisdiction is not available to supreme courts in
dealing with criminal matters. If a precedent possesses elements of binding and in
point, it must be followed. If either one is absent, then it is wise not to. The judicial
precedent system Is dependent on its effectiveness on good coverage of law reports.
Earlier law reports were not similar in the judges’ context as recording was difficult.
However, nowadays it is an efficient system with technology and availability after
occurrence of cases.

The doctrine of precedent mainly helps courts with decision making through past
case laws that have been decided. This confirms that certainty and consistency is
practiced thoroughly within the judicial system and allows for a faster judicial process
to be implemented. Objective justification and reason also stands as similar cases
and same facts will be dealt with likewise, which hinders any wrong justice from
happening. The development of legal rules and principles through this process and a
better, more flexible judicial system is built. Other than that, there are many intrinsic
drawbacks that exist under the doctrine, such as the non-compulsory restrictions that
judges have been provided with to follow past decisions. This might cause the law
being prevented from keeping up-to-date with the modernism in society as a lot of
the principles may be slightly outdated. Ultimately, it may also cost too much time
and harder to comprehend the law because of the existence of all the cases.

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References

C. Ashton et al. “Understanding Scots Law” (2007 Thomson/ W. Green)


G Black, G., 2015. Business Law in Scotland. 3rd ed. Edinburgh: W. Green.
J T Loughran. ‘Some Reflections on the Role of Judicial Precedent’ Fordham Law
Review, Volume 22, Issue 1, 274-320.
N. Busby et al. "Scots Law: A Student's Guide 3rd Ed. (2009 Butterworth’s)
Sixth Form Law. ‘Advantages and Disadvantages of the Doctrine of Judicial
Precedent’
(http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/08_preced
ent_advantages_dis.htm) [Accessed 5th June, 2018].

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