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DECLARATORY THEORY PRECEDENT TYPES OF PRECEDENT PARTS OF A JUDGMENT TYPES OF PRACTICAL APPLICATION

GROUP MEMBERS:  SANDALI RASANJALI, TIHAN BANDARA,  JAYANI HEWAGE, ANUSHI KALHARI .

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The judge being sworn to determine, not according to his private sentiments. Not according to his own private judgments. But according to the known laws and customs of the land; not delegated to pronounce a new law but to maintain and expound the old one.  The  declaratory theory  of the common law is the hypothesis that judges who decide cases.  The  declaratory theory  of  law  represents one side of a debate about whether judges actually make  law  when they produce judicial decisions or merely declare what the existing  law  is. ... If this is accepted, the judge does not make the  law  but is only applying the legislation ( legal  rules) created by Parliament.  Decisions made by past judges are binding on future judges.                                             Eg :  carlill  v carbolic smoke ball co 1893 It was given long time back but we still consider this case law.

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Theory of being bound by previous decisions comes from doctrine of binding precedent.  Once parliament was given law making authority, obligation of judges is different. It not just to create law.  Duties of judges are not to decide thing not under their own private reasons but under already exists laws and customs. Judges  can't  make new laws but to whatever already decided should carry on for the future.

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The Latin maxim: Doctrine of  stare decisis .  (stand by previous decision) Literally means: ''Stand by the things that have been decided.'' Put simply, courts in the UK are bound by the decisions of earlier courts on similar issues unless they can be  ' distinguished ,' All courts are bound to follow decisions made by courts above them. Appellate courts are normally bound by their own past decisions. The decisions of the supreme court of the UK (or formally the house of Lords) are binding on all lower courts except on the SC itself. Justice of the supreme courts can overrule precedent established by their predecessor.

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PAST                                                               CURRENT  (Case A)                                                              (Case B) Fact 1                                                                  Fact 1 Fact 2                                                                  Fact 2 Fact 3                                                                  Fact 3 JUDGMENT                   PRECEDENT            JUDGMENT

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BINDING PRECEDENT: This only happens if the facts are sufficiently similarly. This means that the court must follow the previous decision of a higher court. Or themselves.  A binding precedent is the reason for decision of a higher court that must be followed by a lower court in the same court hierarchy.                               Eg :         R V G & R 1999                                            Donogue  v Stevenson

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ORIGINAL PRECEDENT: An  original precedent  is where a judge must come to a decision without following a previous decision, as the facts in the case have not come before a court before.                               Eg :   hunter v canary wharf                                      CA  gillic  V west  norfalk  AHA                                       Shaw V DPP (1962)                                       Mc  loughlin  v  o'brian  (1983)

PERSUASIVE PRECEDENT: A persuasive precedent is the reason for a decision of another court that is binding but is relevant to the case and is an important. This comes from a variety of places …..... 1. Dissenting judgments.                        Eg : Hedley  Byrene  V Heller 2. Statements made obiter dicta                        Eg : R V Howe 1992                        Applied in, R V Gotts 1992 3. Courts lower in the hierarchy                        Eg : R V R 1991

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VERTICAL PRECEDENT: Higher courts decisions Binding on lower courts.

SUPREME COURT Highest court All its decisions are binding on lower courts. COURT OF APPEAL   Court of appeal is bound to follow decisions of UKSC/ HL.

Vertical precedent  refers to the extent to which a court lower down the hierarchy is bound to follow a decision of a court higher up the hierarchy. For example, is the court of appeal bound to follow the decision of the UK supreme court.

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HORIZONTAL PRECEDENT: Same court decision                                    Binding on same courts.

SUPREME COURT Initially no. After London Tramways Co LTD V London Country Council  [1898] AC 375  – YES After PRACTICE STATEMENT in 1966- NO

Horizontal precedent  refers to the extent to which a court at the same level is bound to follow its own earlier decision. For example, is the court of Appeal bound to follow its own earlier decision?

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RATIO DECIDEDNDI  (The reason for deciding / the legal decision /  Principle of a case) OBITER DICTA  (Other things said) This is  binding precedent  and must be applied (followed) in all other cases in lower courts thet have the same facts or are looking at the same point of law. Hypothetical situations considered by a judge that are not part of the decision.               Eg: In  Hill V Baxter (1958)  the judge talked about what would have happened if a swarm of bees had flown  into a car while someone was driving (even thought this had nothing to do with the case!). This is the  only  part of the legal decision that is binding on other cases. This hypothetical decission is  not bnding precedent . Sir Rupert Cross defines this as ''Any rule expressly or impliedly treated by the judge as a necessary step in reaching  his conclusion''. However, this could be considered persuasive precedent.                 Eg: If there is a case in the future where a swarm of bees flies into a car, they may follow the hypothetical obiter dicta of  Hill V Baxter (1958) ! This  means the reason for the decision. Obiter are statements made by judge / judges that are not central to the decision. In carlill case, it was decided advertisements with reward is a unilateral offer. The reason this was given (since advertisement had record.) So, ratio decident is advertisements with reward. It's coupled with facts and legal reasoning. It may not be important in giving decision. Not material for the case (things said by the way). This is binding. This is not binding.

DIFFERENCE OF RATIO DECIDENDI Vs OBITER DICTA.

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In the UK[ edit ] Under the doctrine of  stare decisis , statements constituting  obiter dicta  are not binding, although in some jurisdictions, such as  England and Wales , they can be strongly persuasive. For instance, in the  High Trees  case, [3]   Mr Justice Denning  was not content merely to grant the landlord's claim, but added that had the landlord sought to recover the back rent from the war years,  equity  would have  estopped  him from doing so. Given that the landlord did not wish to recover any back rent, Denning's addition was clearly  obiter , yet this statement became the basis for the modern revival of  promissory estoppel . Similarly, in  Hedley Byrne & Co Ltd v Heller & Partners Ltd , [4]  the  House of Lords  held,  obiter , that negligent misstatement could give rise to a claim for  pure economic loss , even though, on the facts, a disclaimer was effective in quashing any claim. Also, in  Scruttons Ltd v Midland Silicones Ltd , [5]  Lord Reid proposed that while doctrine of  privity of contract  prevented the stevedores in this instance from benefiting from protection of an exemption clause, in future such protection could be effective if four guidelines (which he went on to list) were all met. In  Carlill v Carbolic Smoke Ball Company [6] [7]  (a case whether a woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza),  Bowen LJ  said: If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course

Sir Rupert Cross explained: ''The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him..'' (Cross R. Precedent in English law (oxford: Clarendon Press 1977) third edition)

According to Leggatt LJ: The ratio is (or is regarded by the judges as being) part of the best or preferred justification for the conclusion reached: it is necessary in the sense that the justification for that conclusion would be, if not altogether lacking, then at any rate weaker if a different rule were adopted.''

Bowen LJ said: ''If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal Why, of course''

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BASICS OF PRECEDENT.

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 In the UK[ edit ] Under the doctrine of  stare decisis , statements constituting  obiter dicta  are not binding, although in some jurisdictions, such as  England and Wales , they can be strongly persuasive. For instance, in the  High Trees  case, [3]   Mr Justice Denning  was not content merely to grant the landlord's claim, but added that had the landlord sought to recover the back rent from the war years,  equity  would have  estopped  him from doing so. Given that the landlord did not wish to recover any back rent, Denning's addition was clearly  obiter , yet this statement became the basis for the modern revival of  promissory estoppel . Similarly, in  Hedley Byrne & Co Ltd v Heller & Partners Ltd , [4]  the  House of Lords  held,  obiter , that negligent misstatement could give rise to a claim for  pure economic loss , even though, on the facts, a disclaimer was effective in quashing any claim. Also, in  Scruttons Ltd v Midland Silicones Ltd , [5]  Lord Reid proposed that while doctrine of  privity of contract  prevented the stevedores in this instance from benefiting from protection of an exemption clause, in future such protection could be effective if four guidelines (which he went on to list) were all met. In  Carlill v Carbolic Smoke Ball Company [6] [7]  (a case whether a woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza),  Bowen LJ  said: If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write me a note saying that they have accepted my proposal? Why, of course

BASICS OF PRECEDENT.

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