The process through which common law is created is known as precedent. Common law is law made by Judges. Precedent operates to ‘bind’ lower Courts by the decisions of more senior Courts.

The following is a brief explanation of the Court hierarchy in the United Kingdom.

Supreme Court

The most senior court in the United Kingdom is The UK Supreme Court. This used to be called The House of Lords before constitutional revisions in 2009.

The UK Supreme Court hears cases from the Civil and Criminal divisions of the Court of Appeal.

The Court only hear cases on points of law of general public importance.

The Court of Appeal

The Court of Appeal is bound by The Supreme Court and binds the courts below it. In other words, The High Court, The County Court, The Magistrates’, Tribunals and the rest.

In Young and Bristol Aeroplane 1944 KB718 the Court of Appeal found that it can effectively bind itself. The decisions of The Court of Appeal are therefore binding on all future constitutions of The Court of Appeal. However, in this case the court also outlined three exemptions to this basic rule. This case decreed The Court of Appeal could depart from its previous stance where its own decision:

1. Conflicts with another, or

2. Has been implicitly overruled by The Supreme Court, or

3. Was made per incuriam or through carelessness.

High Court

The High Court has a dual function as a court of first instance and an appellate body. In its appeal function, The High Court is bound by its own decisions subject to exceptions as those outlined with respect to the Court of Appeal. By contrast, decisions of individual High Court judges in first instance cases are not binding elsewhere in The High Court.

The County Court and Family Court are considered inferior courts. They do not bind each other, nor are they capable of setting precedents in the traditional sense for other courts to follow. This is also true in the crown courts on the criminal side. But when we say that ‘inferior courts’ do not create precedent in the traditional sense, we need to appreciate that once again there is a human element. Case decisions are likely to be influential on each other in the inferior Courts, even if they are not formally binding.

So, what decides whether a case can become precedent?

When considering whether a case is a relevant precedent for a case you are acting in, you should consider the following:

1. There must be a proposition in law,

2. The proposition must be part of a ratio decidendi of a case,

3. That the proposition is decided in a court whose decisions are binding the court in which the case is being considered;

4. There are no relevant distinctions between the two cases.

If there are factual distinctions between the present case and the previous one, it might be said that they are distinguishable and that accordingly the precedent should not apply.

Examples of Obiter Dicta

Sometimes, courts make these statements that are unimportant to the outcome but have significance for the future. These are called obiter dicta. The classic definition of an obiter dictum is a ‘proposition of law not necessary for a case’s conclusion’.

You can see that identifying an obiter statement represents something of a moving target. It can be difficult exercise to attempt to spot an obiter statement at the time that it is made. You could certainly identify it as not yet relevant to the immediate outcome of the case but you may be able tell that it will have significance for cases later in time. Part of a lawyer’s exercise is to identify which aspects of a case decision may be capable of being a ratio and which may be capable of being an obiter statement.