Sources of Law: Precedent II

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The position of precedent in England:

The concept of judicial precedent is well settled in English system. The inferior courts are bound by the decisions of superior courts. The superior courts are not under obligation to follow the rules of inferior courts. One court of similar jurisdiction is not bound by the decision of the courts of coordinate jurisdiction. In England, the lowermost courts/ the courts of the first instance are the County Courts and the Magistrate Courts then come the High Court. The High Court is divided into three Divisions i.e., Queen’s Bench Division, Chancery Division, Probate, Divorce and Admiralty Division. Above them, there are the Courts of Criminal Appeal (appellate court for criminal cases) and the Court of Appeal (to deal with appeals for other than criminal cases). The House of Lords is the highest judicial tribunal and the Privy Council is the highest appellate tribunal of the British colonies and the dominions. The hierarchy of courts in England is given below:-

The two rules that govern the concept of precedent are – i) each court is absolutely bound by the decisions of the courts above it, and ii) to some extent, higher courts are bound by their own decision.

The House of Lords:

The highest judicial tribunal for the United Kingdom is House of Lords. The decision given by it are binding on all the courts below. Whether the House of Lords is bound by its own decisions was a disputed question till, in Attorney General v. Dean of Windson[i], Lord Campbell laid down that the House of Lords is bound to accept its own decision. In his words, “ By the Constitution of this United Kingdom, the House of Lords is the Court of Appeal in the last resort, and its decisions are the authoritative and conclusive declaration of existing state of the law and are binding upon itself judicially as much as upon all inferior tribunals.” The view was re-affirmed by Lord Halsbury in London Street Tramways Co. v. London County Council[ii] . However, in Boys v. Chaplin[iii], Lord Chancellor announced that the House would no longer consider itself absolutely bound by its own decisions.

The Supreme Court of the United Kingdom in 2009 replaced the appellate committee of the House of Lords as the highest Court in U.K. consisting 12 members including the Chief Justice of the Supreme Court. The Court deals with the issues of the greatest public importance, for the whole of the United Kingdom in civil cases and for England, Wales, and Northern Ireland in criminal cases.

Court of Appeal and Court of Criminal Appeal:

The Court of Appeal is bound by its own decision as well as the decisions of Supreme Court. The rule was approved in case of Young v. Bristol Aeroplane co. Ltd.[iv] by the full bench. However, following are the cases when the Court of Appeal is not bound by its own decision:

The Court shall refuse to follow a decision of its own which, though not expressly overruled cannot, in its opinion stand with the decision of the House of Lord.[v]
The Court is not bound to follow a decision if it is satisfied that the decision was given per incurium.[vi]
The Court is not bound by its own decision in case there are two conflicting decisions of its own.[vii]

The Court of Criminal Appeal is also bound by its own decision and decisions of the Supreme Court. The Court of Appeal and the Court of Criminal Appeal are not bound by the decisions of each other as both are Courts of coordinate jurisdiction. The Court of Criminal Appeal can disregard its own previous decision in cases where it finds that there was misconstruction or misapplication of law and reconsiders the previous decision. As clear from the chart above, High Court is bound by the decisions of the Supreme Court, Court of Appeal, Court of Criminal Appeal and by its own previous decision. County Courts and the Magistrates’ Courts are bound by the decisions of House of Lords, Court of Appeal, Court of Criminal Appeal, High Court and its own decisions.

The Position of precedent in India:

to be continued…

[i] (1860) 8 HLC 369 at pp. 391-392

[ii] 1898 A.C. 375

[iii] (1968) 1 All ER 283

[iv] 1944 KB 718

[v] Lyus v. Stepney Borough Conneit, (1940) 2 KB 663

[vi]Young v. Bristol Aeroplane co. Ltd, 1944 KB 718

[vii] King v. King, (1943) 2 All ER 253

Books referred:

Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016.
Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.