It pretty much says the same things I’ve been saying.
- Precedents are either binding or persuasive depending on hierarchy.
- Decisions by lower courts, even foreign courts do set precedents of a persuasive authority
- That many decisions of the same outcome done at the first instance, or in lower courts, can discourage lawyers from even advising client to pursue an appeal because…
- Appeal courts themselves look at lower court decisions even though they are not binding but because they do have persuasive authority.
“English Courts are obliged to follow previous decisions within more or less
well-defined limits. This is called the doctrine of precedent. The part of a case
that is said to possess authority is the ratio decidendi, that is to say, the rule of law upon which the decision is founded. Finding the ratio decidendi of a case is an important part of the training of a lawyer. It is not a mechanical process but it is an art that one gradually acquires through practice and study.”p95
“What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur; but the legally material facts may recur and it is with these that the doctrine is concerned.”p104
“This matter of distinguishing has been stressed because it plays a most important part in legal argument. Suppose that you are conducting a case in court, and that the other side cites a case against you. You then have only two alternatives (that is, if you are not prepared to throw your hand in altogether). One is to submit that the case cited is wrongly decided, and so should not be followed. This is possible only if the case is not binding on the court. The other is to “distinguish” it, by suggesting that it contains or lacks some vital fact that is absent or present in your client’s case. Sometimes you may have the sympathy of the judge in your effort to distinguish it, even though the distinction you suggest involves tamper ing with the expressed ratio decidendi of the precedent case and even though you have no authority for the suggested distinction.”
”More important than the name of the case is the rank of the court in which it was decided. To mention the court that decided a case is a mark of awareness of the doctrine of precedent, with its hierarchy of authority. The rule is that every court binds lower courts and that some courts bind.” p110
“Decisions of courts inferior to the High Court do not bind anybody, not even themselves. In legal theory decisions of the Judicial Committee of the Privy Council do not bind English courts, nor even the Judicial Committee itself. But they have great “persuasive” authority.” p119
”Rules of precedent instruct judges that they are or are not bound to decide the case before them in a particular way. The rules do not tell the judge what principles to act upon when the situation is unconstrained by authority, for example when faced by a precedent in a lower court which is not binding. The judge then has to choose between notions of justice, convenience, public policy, morality, analogy, and so on, perhaps taking into account the opinions of other judges (in American, Canadian, Australian and Scottish cases, for instance) or of writers. The various considerations may not point in the same direction, but conflict with each other.”p121
”Lawyers are rather prone to assume that what has been decided cannot be upset. It often happens that a plainly wrong decision is given at first instance or even by the Court of Appeal, which is followed unquestioningly for many years because counsel do not advise their clients to take the point further on appeal. When, eventually, some counsel is found who has the courage and acumen to take the point, the precedent is reversed.”p123
-Professor Glanville Williams in Learning The Law, fifteenth edition.
🍳 + 🤪= you.