Precedents and Obiter Dicta Statements in the Courts of England and Wales

In my last blog post, we looked at presumptions and rules of language that are used as aids to statutory interpretation. In this blog post, we will be continuing this topic by looking at what precedents are, how they are set, which courts they are binding on and how they can be overruled. Sometimes the judge will also say things obiter dicta, or along the way. These can be used to guide future decisions, but are not actually binding.

Court Hierarchy

So, which precedents are actually binding? This will depend on the court that has set the precedent. For example, decisions of the Supreme Court are binding on all other courts, as it is the highest court in England and Wales. However, it is not bound by its own decisions, although they may set a persuasive precedent.

The Court of Appeal is bound by the Supreme Court and itself and is binding on all lower courts. Nevertheless, the Court of Appeal may occasionally depart from its own decisions if there are conflicting precedents, it has been overruled by the Supreme Court or if there is law that would make the precedent incorrect.

All lower courts are bound by the Supreme Court, Court of Appeal and any other higher courts. They are also usually bound by their own decisions, with a few exceptions. However, the County Court and the magistrate’s courts do not set precedents (even for themselves), but are bound by all other courts.

Ratio Decidendi and Obiter Dicta

In addition to which court the judgment came from, whether something is a precedent will also depend on what exactly was said. Here, it is important to distinguish between the ratio decidendi (the reason for the decision) and obiter dicta (things said along the way). Unfortunately, the judges don’t tend to separate their judgment speeches up into these two sections, so it might not immediately be clear what is and isn’t binding!

The ratio decidendi refers to the actual facts of the case and is the reason for the judgment given, based on these. Things said obiter dicta do not directly relate to the case and are hypothetical scenarios of what the legal position would be if the facts were different. The ratio decidendi is binding, whereas things said obiter dicta are not.

The reasoning for this is that the ratio decidendi is the bit that actually relates to and directly affects the case at hand. It uses the facts of the case, with the law as it stands applied to it, plus the judge’s discretion about how to apply it (where there is room for doubt or if the law is unclear). What is especially important is the latter half of this, when a case isn’t covered by the existing law. This may be because the relevant law hasn’t yet been created or because there is room for multiple interpretations and the judge will have to decide which one is correct.

When a judge’s ratio decidendi discusses an area that is not covered by the current law, common law is created, at least in the higher courts. What the judge said in their reasoning will now be binding law on whichever courts are below it in the hierarchy. This will apply to any future cases heard by these courts, so it is vital that all decisions are carefully considered, as it is harder to reverse them later. Creating common law by setting precedents also means that the law is clearer and covers more areas, which is useful to both the legal profession and the general public, making it easier to predict the outcome of cases.

Things said obiter dicta are not binding, as they are not part of the actual judgment based on the facts of the case. Instead, they introduce hypothetical scenarios where the details are similar to the case being heard, but with some key differences. These may seem quite minor, but they change the situation sufficiently that a different outcome might be reached. However, it should be noted that these statements are not binding even if a new case is heard with identical details to the hypothetical scenario. It may be persuasive, but no precedent has been set.

Departing from Precedents

It is possible to depart from precedents, but this doesn’t happen that frequently as it could lead to uncertainty in the law. There are two main ways of doing this – overruling and distinguishing. Overruling means that a court above the one where the precedent was set decided to go against that precedent and set a new one.

Distinguishing is used a lot more frequently than overruling. For this, a judge will point to facts that make the case substantially different from the one that was previously decided on in the precedent. In an effort to avoid certain outcomes, especially from older cases where the views of time are now outdated, distinctions may be made for fairly minor differences.

Wrapping Up

I hope that this helps you to understand the legal principle of precedents. In my next blog post, we will be looking in more detail at how to depart from these, so come back in two weeks for that!

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