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Legal System, English

Ratio Decidendi

Stare Decisis, the Doctrine

Last updated: 27-Mar-2015

Per Lord Wilberforce in Johnson v Agnew [1979] 1 All ER 883 at p.892:

The state of authority then, so far as English law is concerned, is that, starting from a judgment in which no reasons are given, and which may rest on any one of several foundations, of which one is unsound and another obsolete, a wavering chain of precedent has been built up, relying on that foundation, which is itself unsound. Systems based on precedent unfortunately often develop in this way and it is sometimes the case that the resultant doctrine becomes too firmly cemented to be dislodged.

Colchester Estates (Cardiff) v Carlton Industries [1986] Ch 80 by Nourse J. at p.85:

That unqualified statement of a general rule comes from a source to which the greatest possible respect is due. It is fortuitous that my own instinct should have coincided with it. However diffident I might have been in relying on instinct alone, the coincidence encourages me to suggest a reason for the rule. It is that it is desirable that the law, at whatever level it is declared, should generally be certain. If a decision of this court, reached after full consideration of an earlier one which went the other way, is normally to be open to review on a third occasion when the same point arises for decision at the same level, there will be no end of it. Why not in a fourth, fifth or sixth case as well? There must come a time when a point is normally to be treated as having been settled at first instance. I think that that should be when the earlier decision has been fully considered, but not followed, in a later one. Consistently with the modern approach of the judges of this court to an earlier decision of one of their number (see, e.g., Police Authority for Huddersfield v Watson [1947] K.B. 842, 848, per Lord Goddard C.J.), I would make an exception only in the case, which must be rare, where the third judge is convinced that the second was wrong in not following the first. An obvious example is where some binding or persuasive authority has not been cited in either of the first two cases. If that is the rule then, unless the party interested seriously intends to submit that it falls within the exception, the hearing at first instance in the third case will, so far as the point in question is concerned, be a formality, with any argument upon it reserved to the Court of Appeal.

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