The Doctrine of Precedent (Stare Decisis) in UK Law

The English common law develops case by case. Every decision is law-making to some degree, and the doctrine of precedent — stare decisis— is what stops the system collapsing into chaos. It tells judges which earlier decisions they must follow and which they may depart from.

The hierarchy.From the top down: the UK Supreme Court (since 2009; before that, the House of Lords); the Court of Appeal (Civil and Criminal divisions); the High Court (Queen’s/King’s Bench, Chancery, and Family divisions); the Crown Court for criminal trials; the County Court for civil; the Magistrates’ Courts; and various tribunals. The Privy Council sits outside but is highly persuasive.

Vertical precedent. Lower courts must follow the decisions of higher courts on the same legal point. A High Court judge cannot lawfully refuse to apply a Court of Appeal decision — they can only distinguish it on the facts.

Horizontal precedent. Courts of equal rank are usually bound by their own previous decisions, with limited exceptions:

• The Supreme Court (and previously the House of Lords post-1966) may depart from its own decisions when it appears right to do so — the “Practice Statement” of 1966.
• The Court of Appeal is bound by its own decisions subject to the three exceptions in Young v Bristol Aeroplane [1944] KB 718: conflicting prior decisions, decisions inconsistent with a later Supreme Court ruling, and decisions made per incuriam.
• The High Court is not strictly bound by its own decisions but ordinarily follows them.

Per incuriam.Latin for “through lack of care”. A decision reached in ignorance of a binding statute or precedent. Such decisions can be set aside even by a court that would otherwise be bound.

Distinguishing.The everyday tool of common-law judging. A judge bound by a precedent shows that the case in front of them turns on a material fact that wasn’t present in the precedent — and so the precedent doesn’t apply. Distinguishing is not overruling; the precedent stays alive for cases that match its facts.

Overruling vs reversing. Overruling is what a higher court does to a precedent set in an earlier different case. Reversing is what an appellate court does to the same case’s lower-court decision. Students mix these up in essays. Don’t.

European influence. Decisions of the European Court of Justice were binding on UK courts within the scope of EU law until 31 December 2020. Post-Brexit, “retained EU case law” binds lower courts but the Supreme Court and Court of Appeal can depart from it (European Union (Withdrawal) Act 2018, s 6, as amended). ECHR jurisprudence is not binding but UK courts must “take into account” it under s 2 Human Rights Act 1998.

Practical exam tactic. When you see a precedent in a problem question, ask three things: (a) is it binding here, given the courts? (b) can it be distinguished on the facts? (c) has anything since changed (a later case, a statute, or a Supreme Court departure)? See our IRAC method for how to weave precedent analysis into the “Rule” and “Application” sections of an answer.