11.2 Precedent and Case Law

A solicitor who cannot handle precedent cannot give a reliable advice. FLK1 will not ask you to recite Latin for its own sake. It will give you a short run of authorities and ask whether a later court must follow an earlier one, may distinguish it, or may treat it as merely persuasive. This OpenExamPrep section is independent teaching of that doctrine for the courts of England and Wales. The same doctrine applies in Cardiff as in Leeds, because Wales is not a separate legal jurisdiction. A Senedd statute may change the statutory rule a court applies; it does not create a Welsh system of stare decisis.

Stare decisis and the judicial function

Stare decisis (stand by things decided) is how the judicial function stays consistent. Like cases are decided alike. Parties can order their affairs. Lower courts are constrained. The doctrine is the practical partner of the point in section 11.1: judges develop the common law only incrementally. They do not hold a general mandate to redesign the law each Monday morning.

Two ideas do the work:

• Ratio decidendi — the legal proposition that was necessary for the court's decision on the material facts. That proposition is the binding rule.
• Obiter dicta — other statements of law, including hypothetical remarks, illustrations, and discussion not necessary to the result. Obiter may be highly persuasive, especially from the Supreme Court, but it is not binding.

Finding the ratio in practice

Work through four questions:

1. What facts did the court treat as material (the facts without which the result would have been different)?
2. What was the issue of law?
3. What did the court decide on that issue?
4. What reason was necessary to that decision?

Discard facts that the court itself treated as irrelevant. A later advocate who wants to distinguish will argue that a fact in the later case is material and was not present in the earlier one, so the ratio does not apply.

Split courts. In an appellate court with several judgments, the ratio is found in the majority. A concurring judgment may reach the same result for a different reason; that different reason is not automatically the ratio. A dissent is not the ratio, though a later higher court may adopt it when overruling. Do not treat a law reporter's headnote as the binding text. The judgment is the source; the headnote is a finding aid and can be wrong.

Which courts bind which

Vertical stare decisis follows status in the hierarchy. A court is bound by the ratio of a superior court in England and Wales on the same material facts. It is not bound by an inferior court.

Horizontal stare decisis is the question whether a court is bound by itself.

Supreme Court. It is not bound by its own previous decisions. The House of Lords announced that position in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, departing from London Street Tramways Co Ltd v London County Council [1898] AC 375. The Supreme Court continues that approach. Departure is exceptional. Certainty matters acutely in criminal law, property and contract. When the court does depart, the new ratio is the law and, in the ordinary way, it is treated as always having been the law (retrospective in the declaratory sense), unless a rare prospective technique is used.

Court of Appeal (Civil Division). It is bound by its own previous decisions, subject to the three exceptions in Young v Bristol Aeroplane Co Ltd [1944] KB 718:

1. Conflicting Court of Appeal decisions — the later court must choose which to follow.
2. Cannot stand with a later decision of the House of Lords or Supreme Court — the appellate decision that conflicted with the higher court is not followed.
3. Per incuriam — the earlier Court of Appeal decision was given in ignorance or forgetfulness of a statute or a binding authority, and that omission led to faulty reasoning. Morelle Ltd v Wakeling [1955] 2 QB 379 is the usual citation for the tightness of this idea.

Davis v Johnson [1979] AC 264 is the warning against inventing a fourth exception for 'the earlier case is clearly wrong'. The Civil Division cannot give itself a general power to overrule itself because it regrets a previous result.

Court of Appeal (Criminal Division). Precedent is slightly more flexible where a previous decision is wrong and a defendant would otherwise suffer injustice. The liberty interest is the reason. Do not import that flexibility wholesale into civil work.

High Court. A judge sitting at first instance is not bound by another first-instance High Court decision but should follow it unless convinced it is wrong. If two first-instance decisions conflict, later or more fully reasoned authority is usually preferred. A Divisional Court has greater weight than a single judge. The High Court is bound by the Court of Appeal and the Supreme Court.

Overruling, reversing, distinguishing, disapproving

These verbs are not interchangeable.

Reversing is vocabulary about the fate of one case. It is not an invitation to map permission applications or routes; those sit outside this chapter. For FLK1 legal system, you need the effect on the body of case law: overruled means the old ratio is gone; distinguished means the old ratio survives for its own facts.

Per incuriam is not a synonym for 'I disagree'. It is a narrow defect: a relevant statute or binding case was not considered. A decision that considered the authority and got it wrong is not per incuriam merely because a later advocate has a better argument.

Persuasive authority

Not every citation binds. The following are persuasive in the courts of England and Wales unless a specific rule says otherwise:

• obiter dicta, including considered Supreme Court obiter, which later courts treat with great respect;
• first-instance decisions when you are in the High Court or above;
• decisions of the Judicial Committee of the Privy Council;
• Scottish and Northern Irish decisions on shared common-law ideas;
• well-reasoned Commonwealth decisions;
• textbooks and articles (never binding; sometimes cited as a convenient statement of principle).

Privy Council after Willers v Joyce. In Willers v Joyce [2016] UKSC 43 and [2016] UKSC 44 the Supreme Court confirmed that a Privy Council decision is not binding in England and Wales. However, if the Board says what English law is, a court in England and Wales should follow that view unless bound by a conflicting decision of the Court of Appeal or Supreme Court. The Supreme Court can also direct that a particular Privy Council decision is to be treated as if it were a decision of the Supreme Court. Until that direction is given, do not tell a client that a JCPC case 'binds the High Court'.

Decisions from other jurisdictions of the United Kingdom can persuade on common-law questions. They do not bind, because Scotland and Northern Ireland are separate legal jurisdictions. Welsh law does not create a third common-law system; it is statute applied by the same courts under the same doctrine of precedent.

Law reports and neutral citations

A competent solicitor cites an authoritative report where one exists. The Incorporated Council of Law Reporting Law Reports (Appeal Cases, King's Bench, Chancery, Family) remain the preferred series in court. The Weekly Law Reports and All England Law Reports are widely used. Unreported transcripts are a last resort when no report exists.

Neutral citations have been used since 2001. They identify the court and the case number independently of any commercial series:

When a case is reported, cite the neutral citation and the law report: Pepper v Hart [1993] AC 593 is a House of Lords decision from before neutral citations. A 2026 Supreme Court case should carry both the neutral citation and, when available, the Appeal Cases reference.

Original precedent and the declaratory theory

Sometimes no binding ratio covers the point. The court then creates original precedent. Older theory said judges only declare what the common law has always been. Modern candour accepts that judges make law in the gaps, still constrained by statute, by higher courts, and by the need to justify the step from existing principle. That is why Duport Steels and stare decisis are taught together: the judicial function includes modest law-making, not legislative redesign.

Worked advice pattern

A client in Newport asks whether a 2018 Court of Appeal civil decision still governs a 2026 dispute. Method:

1. State the material facts of the 2018 case and extract the ratio.
2. Compare those facts with the client's facts. If a material fact differs, consider distinguishing.
3. Search for a later Supreme Court decision that overrules or makes the 2018 case impossible to stand with (Young exception 2).
4. Check whether the 2018 court missed a statute or a House of Lords/UKSC case (Young exception 3).
5. If the 2018 ratio still stands and the facts match, advise that the county court and the High Court are bound. Do not tell the client that the Court of Appeal can simply ignore the 2018 case because it now seems inconvenient (Davis v Johnson).
6. If the dispute is governed by a Senedd Act passed after 2018, start with the statute. Precedent interprets the statute; it does not repeal it.

FLK1 traps for this section

• Treating every sentence in a judgment as ratio.
• Telling a High Court judge they are bound by another first-instance High Court decision.
• Treating the Court of Appeal as free to overrule itself whenever it thinks a previous civil case was wrong.
• Citing the Privy Council as automatically binding in the Administrative Court.
• Using a county court judgment as if it bound the Court of Appeal.
• Ignoring a later statute that has overtaken the case law.