Precedent Paradoxes

Here I shall seek to explain why the Supreme Court in Willers v Joyce, being heard today, have been asked a question they cannot answer.



Judges in common law systems make law through the doctrine of precedent. Without the principle of stare decisis, whereby subsequent judges must follow the rule set down even where they consider it to be wrong, judicial decisions would be so much spilled milk.


Legal systems do not have to be like this. Some real world civilian jurisdictions claim, at least in theory, not to possess a system of precedent of the same form. In a system where the reasons judges give for results become the law itself, they must provide such reasons. A judgment of the form

“These are the facts. These are the rules in the legislation. The defendant wins.”

will not do in a common law system. This is one reason why the terse judgments of the French Cour de Cassation or the German Bundesgerichtshof are so different from those given by ultimate appellate courts in the common law world.


Ratio Decidendi and Obiter Dicta

Not everything that a judge says in giving judgment sets down a rule that subsequent judges must follow. If it did, judges would have almost untrammelled power to read into the record any rules they liked. Instead, only those reasons sufficient for the outcome of the case before them can be binding. These reasons are the ratio of the decision. Statements that do not constitute part of these reasons are said to be obiter dicta. 


Determining a decision’s ratio is, in most cases, a routine matter. If the case raises one issue, and the judge gives one reason for the result, that is the ratio. Statement such as “if the facts had been different in respect X, the result would have been different”, whilst potentially persuasive, are not binding. Where more than one issue is raised, and the court gives more than one reason for the result (for example holding that a trial judge had misdirected the jury both as to the actus reus and mens rea of an offence) all those reasons sufficient for the result are part of the ratio, even if none of them individually is necessary.


This rule is a healthy one. Judges will  either not have heard, or not have heard adequate, argument from counsel on issues that are not raised by the case in dispute.


Decisions the Supreme Court cannot make

Almost all legal questions can be authoritatively determined by our ultimate appellate court. One important exception is the rules of precedent for other courts. Why is this so?


At one time, the judicial House of Lords was bound by its own decisions. This meant that even where a decision was plainly wrong, only legislative intervention could overturn it. This position was reversed by a Practice Statement in 1966 (which the Supreme Court follows).


Decisions of the Court of Appeal in the tier below are different.There the rule has long been, subject to exceptions, that the Court of Appeal must follow its own earlier decisions. The justification for the difference is that if the Court of Appeal gets it wrong, there is still another tier of appeal left to correct any mistake.


Lord Denning, the most significant member of the Court of Appeal almost from the day of his appointment in 1948 until his retirement in 1982 (with an interregnum as a member of the House of Lords from 1957 to 1962) always opposed this rule. In the 1970s he led what Lord Diplock described as a “one man crusade” to try and overturn it, culminating in the decision in Davis v Johnson. There Lord Diplock stated the House of Lords should take the step of “unequivocably and unanimously” setting down that the Court of Appeal remained bound by its own decisions.


What is the legal effect of such a statement? It is obiter dicta. This is because the rules of precedent applicable to the Court of Appeal never form a sufficient reason for the disposition of a case before the ultimate appellate court. The ultimate appellate court is not bound by decisions of the Court of Appeal. Before it the only rules that are necessary for the disposition of the case are the rules binding on it.


Could the House of Lords have said “the Court of Appeal got this case wrong, as they should have followed their own earlier decision”, and stopped there? Clearly not. The issue for the ultimate appellate court is what the right result is before it, not what the Court of Appeal should have done


The result is that only the Court of Appeal (or indeed any tier of court) can authoritatively rule on its own rules of precedent. The correct position was set out by Lord Salmon


In the nature of things however, the point could never come before [this court] for decision or form part of its ratio decidendi. This [court] decides every case that comes before it according to the law. If, as in the instant case, the Court of Appeal decides an appeal contrary to one of its previous decisions, this [court], much as it may deprecate the Court of Appeal’s departure from the rule, will nevertheless dismiss theappeal if it comes to the conclusion that the decision appealed against was right in law.

I am afraid that I disagree with Lord Denning M.R. when he says that the Court of Appeal is not absolutely bound by its own decisions and may depart from them just as your Lordships may depart from yours. As my noble and learned friend Lord Diplock has pointed out, the announcement made in 1966 by Lord Gardiner L.C. about the future attitudes of this House towards precedents ended with the words: “This announcement is not ” intended to affect the use of precedents elsewhere than in this House “. I would also point out that that announcement was made with the unanimous approval of all the Law Lords: and that, by contrast, the overwhelming majority of the present Lords Justices have expressed the view that the principle of stare decisis still prevails and should continue to prevail in the Court of Appeal. I do not understand how, in these circumstances, it is even arguable that it does not.


The Privy Council and the English Courts

The United Kingdom’s Supreme Court is currently hearing the decision in Willers v Joyce. The second issue that they have set down for resolution is

Whether the Courts of England and Wales should continue to treat decisions of the Privy Council, made by a board comprising solely of serving Supreme Court Justices who have heard full argument and made their decision on the basis of English law, as having no status as legal precedent in England and Wales.

This issue is considered of such importance that the court has taken the unusual step of convening a nine member panel to determine the matter. This has come before the court using the ‘leapfrog’ procedure, going from first instance to Supreme Court bypassing any hearing before the Court of Appeal.


Traditionally, decisions of the Privy Council sitting as a court have only been binding in those jurisdictions from which the appeal was heard, which is almost never England (the Privy Council  still has jurisdiction in England in ecclesiastical and ships prize cases). This appeared, and appears, odd as the judges sitting in the Privy Council were and are precisely the same ones who once sat in the Judicial House of Lords, now our legally indistinguishable Supreme Court. It was once true that the Privy Council sat in a different building (in Downing Street) from the judicial committee of the House of Lords (in the Palace of Westminster), but both courts now sit in the dull municipal embarrassment that is Middlesex Guildhall. With the same judges resolving the same issues, it looks very formalistic to give the decisions different binding force. Worse, if a decision of the Privy Council departs from a decision of the English Court of Appeal, it is inconvenient if the same issue needs to be re-litigated again to ask whether the same judges think the same thing wearing their Supreme Court hats.


There is no doubt however about the force as a matter of precedent of decisions of the Privy Council before the Supreme Court. They are not binding, any more than earlier decisions of the Supreme Court are. There may be some question as to the weight to be given to Privy Council decisions, but nobody would nowadays argue that the Supreme Court should be bound by them.


What of the precedential force for courts other than the Supreme Court of what that court says in answer to the question posed? Again, this is, as Lord Salmon said, a question that in the nature of things cannot come before the Supreme Court to decide. It does not matter how many judges are convened to hear the case, or how forcefully they express themselves. Anything they say is necessarily obiter dicta.


Can the law be changed?

This appears to create an impasse. The Court of Appeal is bound by its own decisions. This seems to mean it cannot correct itself if the rule it itself has laid down that it is not bound to follow the Privy Council is wrong. The Supreme Court can usually overturn decisions of the Court of Appeal, but any views it expresses on the rules of precedent for that court is perforce obiter dicta and not binding. Can no court correct the error, if it is concluded that that is what it is?


The answer is that there is an exception to the premise. The Court of Appeal does have power to overturn its own decisions where no appeal to the Supreme Court on a question is possible (see the above justification for the different rules on this question between the Court of Appeal and the ultimate court). At least on questions of its own rules of precedent the Court of Appeal is free to change its own rules. But it is for them, and not the Supreme Court, to determine this issue.


On that, at least, Lord Denning was right.