Kinds Of Precedent Authoritative Precedent Authoritative Precedent is one which judges must follow whether they approve it or not .Authoritative Precedent are the legal sources of law . An authoritative precedent comes from the superior court or senior court followed by its subordinate court. A lower court /Inferior court are bound to follow the rulings of the higher court if the Judge in the present case disagrees with the legal principle. The supreme court is authoritative for all courts in India&igh !ourt to all subordinate courts . A court is bound to follow precedent of that Jurisdiction only if it is directly in point .”Directly in Point “ Means a" #uestion #uestion resolved resolved in in precedent precedent case same as resolved resolved in pending case case b" $esolution of that %uestion necessary to the disposition o the precedent case . c" ignificant ignificant facts of precedent precedent case present present in pending pending case. case. d" 'o additiona additionall facts in pending pending case to to be treated treated as significan significantt Authoritative Precedent in (ngland are the decisions of superior courts of justice. Authoritative Precedent are of ) *inds I. Absolut Absolutely ely Author Authoritat itative ive Precede Precedent nt In this case they have to be followed by the judges even if they do not approve of them. They are entitled to implicit obedience. II. onditi onditional onal Author Authoritat itative ive Pre Precede cedent nt In this case the courts can disregard them under certain circumstances .+rdinarily they are binding but under special circumstances they can be disregarded.The court is entitled to do so if the decision is a wrong one The decision must be contrary con trary to law and reason. A conditional Precedent can be disre!arded either by dissentin! or by overrulin! Overrullin! ,In this case the precedent overruled o verruled is authoritatively pronounced to be wrong so that it cannot be followed by the court in the future Dissentin! -A court declines to follow the precedent and lays down law in a different sense The conflict thus created can be resolved only by a superior tribunal when a occasion arises.Till that is done the law remains in a state of uncertainity . In India the decision of single Judge of a igh !ourt is only conditionally authoritative and may be dissented from by another single Judge or it may be overruled by a ivision 0ench . If one Division "ench dissents fro# another Division "ench $Procedure to be followed. %&'esha##a (s. (en)ata *arasi#ha +ao ,-/0 1 - M2J /00 ,3"14 12hile a Judge of a igh !ourt sitting alone is not bound on a %uestion of law by the decision of another Judge sitting alone this principle go es further .The ivison 0ench is the final court of appeal in an Indian igh !ourt unless the case is reffered reffered to a full bench and one division bench should regard itself bound by the decision of another division bench on a %uestion of law .In (ngland where there is the !ourt of Appeal the divisional courts follow the decisions of other divisional courts on the grounds of judicial comity .If a division bench does not accept as correct the decision on a %uestion of law of another division bench the only right and proper course to adopt is to refer the matter to a full bench for which the rules of this court provide .If this course is not adopted the courts subordinate to the courts are left without guidance.3 5uestion 67hether the decision of a full bench of the 8i!h ourt can be overruled by another 3ull "ench consistin! of lar!er nu#ber of 9ud!es 6&*in!appa (s :#peror ,/-1"o# /0;4 hief Justice "ea#ount e4pressed the view that the decision d ecision of a full bench unitil u nitil it is overruled by the privy council is absolutely authoritative.3 There is no doubt that a full bench can overrule a division bench and that full bench must consist of 5 or more judges - but it would seem anamolous to hold that a later full bench b ench can overrule an earlier full bench merely because the later bench consistes of more judges than earlier .If that were the rule it would mean that a bench of seven
judges by a majority of four to three could overrule a unanimous decision of abench of si4 judges though all judges were of coordinate jurisdiction.3 &+a9a of Mandasa (s. Ja!a##ay)ula < I+ -=> Mad ?-> 4%Madras 8i!h ourt 6(iew 6A full bench #ay be overruled by a nu#erically stron!er full bench.%7allace < J 1The rules on the appellate side permit a division bench to refer any matter to a full bench and there are precedents for a division bench referring the decision of a full bench for consideration to a larger bench .3The proper procedure to be adopted is 1to refer the matter to the chief Justice and it is then for him to consider whether the %uestion % uestion should be reconsidered by a larger bench .3 Cessante ratione legis cessat lex ipsa – means means when reason for any particular p articular law ceases so does the law itself.Thus according to 0lac* stone 6A precedent must be followed if they aren7t absurd /unjust.
A court of superior Jurisdiction can overrule the decision of a subordinate court .A court of subordinate jurisdiction can simply dissent from another court.ie a coordinate court can refuse to follow the precedent of another court and also lay down a different rule on the same point .The conflicts 0/2 the ) coordinate courts can be resolved resolved by a superior court In India the decision of ingle ingle judge of a igh !ourt !ou rt is only a conditionally authoritative precedent .Another judge of the same igh !ourt can differ from him .A division bench of the same igh !ourt can overrule the same .A . A decision decision of the full bench of same court is binding on a bench consisting of two or more judges. &K..*a#biar (s. 'tate of Madras AI+ -@= Mad =@-4%8I:3 Justice 'ubba +ao 1A single Judge is bound by the decision of a division bench e4ercising appellate jurisdiction .If there is a conflict of bench decisions he should refer the the case to a bench of two judges who may refer it to a full bench .A single judge cannt differ from a division bench unless a full bench or supreme court has overruled that that decision specifically or laid laid down a different law on the same point .0ut he can7t ignore a bench decision on the ground that some observations of supreme court made ina different conte4t might indicate a different line of reasoning .A division bench must ordinarily respect another division bench of coordinate jurisdiction - but if it differs the case should be reffered to a full bench.3
In (ngland The decisions of .+.8. are absolutely binding on all courts &.+.8 itself itself bound by its own decisions The court of Appeal is bound by its own decisions or by those of coordinate jurisdiction .here are = eBception to this rule . 1. If there are two conflicting decisions of a court it must decide which of the two it should follow . 2. If the decision decision of a court is in conflict conflict with the .+.8 it must must refuse to follow it even if it is not e4pressly overruled by the decision of .+.8. 3. The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam .
persuasive precedent 6 It It is merely historical persuasive precedent is one which the Judges are under no obligation to follow but which they will ta*e into consideration and to which they will attach great weight as it seems to deserve. It depends for its influence upon its own merits not upon any legal claim which it has recognition 'ource of persuasive precedent a" 2hen a court lower lower in hierarchy hierarchy agreed agreed with and followed followed the the same reasonings reasonings of Appeal Appeal in decision,9an guilty of raping his wife :$;$ :$;$ <==<>. b" ecisions of courts in other countries which have the common law systems ?eg ,Australia ,Australia !anada '@"in dealing similar issues esply America.A persuasive precedent becomes binding through adoption of per.precedent per.precedent by a higher court. c" ecision ecision of superior superior court in in other portion portion of !ommon !ommon 2ealth 2ealth 'ations 'ations eg ,Irish ,Irish courts courts d" Judgement Judgement of Privy !ouncil !ouncil 6 2hen 2hen sitting sitting as final court court of appeal from from other members members and parts of the common wealth. e" Judicial Judicial icta 6tateme 6tatement nt of law which go beyond beyond occasion occasion &lay down a rule that that is irrelevan irrelevantt to the purpose in hand /stated by way of analogy / regarded by a later court as being unduly wide. In Attorney Ceneral (s. Dean and canons of 7indsor 62ord a#pell 1 +bservations made by the members of the ouse beyond ratio decidendi which is propounded and acted upon in giving judgement although they may be entitled to repect are only to be followed in so far as they may be considered agreeable to sound reason and to prior authorities .3 Authoritative Precedent
persuasive precedent
-.Authoritative Precedent is one which judges must follow whether they they approve it or not.
persuasive precedent is one which the Judges are -. persuasive under no obligation to follow but which they will ta*e into consideration and to which they will attach great weight as it seems to deserve.
).They are the legal sources of law .
). It is merely historical
5.They establish law in pursuance of definite de finite rule of law which confers upon them that effect.
5.If they succeed in establishing law at all they do so indirectly by serving as the historical ground of some later authoritative precedent
Ori!inal Precedent A point of law which has never been decided before then whatever the judges dedcide will form a new precedent for later?future " cases to follow . The Judge may find a case closest in principle to the one he is deciding on and may use similar rulling .this is called reasoning by Analogy . The number of original precedent is small &develop in law ina country .It ma*es a heavy burden on judge. !ase ,onogue tephenson ?<=5)"Bnail in bottle case 6'egligence . 0himsingh ;s. tate of J&C 6abeas !orpus case 60himsingh 9.8.A detained by JC police 6! o rder state Dovt to release and pay him $s .EFFFF/BB!ompensation. Declaratory Precedent This is an already e4isting rule of law . It is followed in the present and future .This precedent is the first recogniGed by the court and Judges . There need never been a specific case decided on the same or similar issues in order for a court to ta*e notice of customary or traditional precedent in its deliberation .
It follow because its already a law & number of declaratoty precedent is numerous n umerous . !ase ,0havasagar ;s.tate of A.P?<==5" 60havasagar arrested illegally by police under abeas !orpus ..c.order to release pay )FFFF/B )FFF F/B compensation It poses less strain on Judge.
ircu#stances which destroy or 7e 7ea)en a)en the bindin! forces of precedent%:Bception. The operation of the precendent is based on legal presumption that judicial decisions are correct..2hat is delievered in a judgement judgement must be ta*en to be an established truth.0ut precedent may not always always be in force .Precednet that is overruled is deprived of all authority .The various ways in which a precedent may lose all or much of its binding force are.
1.Abro!ated Decisions Abrogated means cancel .a decision ceases to be binding if a statute or statutory rule inconsistent with it is subse%uently enacted or if it is reversed or overruled by a higher court . ¶ +eversal , $eversal occurs when the the same decision is ta*en on appeal and reversed by the appellate court eg.!ourt of Appeal reverse the decision of igh !ourt . ¶ Overrulin! , This occurs when the igh !ourt declares in in another case that precedent case ?prior one "was wrongly decided and so is not be followed. +verrulling is one important method by which the octrine octrine of Precedent is *ept fle4ible fle4ible .2hen a decision is overrules the authority is no longer binding either on subse%uent courts or the court itself which is overruling .+verrulling need not be e4pressed but implied. Hntil <=F the court of Appeal follow its own previous decision though manifestly inconsistent with a later decision decision of ouse of 8ords provided it had not been e4pressly overruled . 2ord 7ri!ht in case of 8ouse of 2ords %uestioned and ourt of Appea l in oun!
(iew 6Jessel .M.+ B Jud!e#ent of the lower court affir#ed on different !rounds 6It is deprived of all authority . he hi!her court 6 The conduct on the part of appellate court that it didn7t agree with pts mentioned.Although this may be correct at sometimes and not always.It may shift the grounds of decision because it is the easiest way to decide a case& it relief itself of disagreeable disagreeable necessity of overruling court below by finding another ground on which the judgement could be supported.There are case report where Judgements affirmed on different points have been regarded as authoritative. ase reversed on another pt that have been decided in the lower court is not necessarily deprived of judicial determination of the law but on other hand it may sha*e the authority of the pt decided. A decision either affirmed / reversed on another point is deprived of any absolute binding force it might otherwise had but remains as an authority followed by court that thin*s that particular point have been rightly decided.
3.I!norance Of 'tatute A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of a statutei.e.delegated legislation.This rule was laid down for house of 8ords by 8ord alsbury in the leading case and for the court of Appeal as the leading e4ample of a decision Per Incuriam which would not be binding on the court . his rule applies if The earlier court K*new the statuteKbt didn7t refer to / had not present to its mind precise • terms of statute. !ourt K*new the statuteK yet not appreciate its relevance to the matter in hand. • (ven a lower court can impugn a precedent on such grounds .but misconstruction of statute statute /ignoring rule of construction by earlier court is no ground for impugning the authority of precedent. A precedent on construction of a statute statute is as much binding as any other and the fact that it was mista*en in its reasoning does not destroy its binding force.
4. Inconsistency with earlier decision of hi!her court A precedent loses its binding force if the court that decided it overloo*ed an inconsistent decision of a higher court . Appeal decides a case in ignorance of a decision of the ouse of 8ords which went other :!.!ourt of Appeal way therefore the decision of !ourt !ou rt of Appeal is per incuriam and is not binding either on itself ?or" on lower courts .bt the decision of ouse of 8ords is binding.This rule applies precedent in other co urts such as to ivisional !ourts. 5.Inconsistency "F7 earlier decisions of the sa#e ran) . A court is not bound by its own previous decisions that are in conflict with one another .This rule has been laid down in ourt of Appeal ourt of ri#inal Appeal Divisional ourt 8ouse Of 2ords +eaons of conflict situation !onflicting decision occurs from a time before the binding force of precedent was recogniGed. Through inadvertence because earlier cases not cited 9iss relavant authority 6because of vast no. of precedent & heterogenous way in which they are reported /not. Prior decision not cited 6it is assumed that court acts in forgetfulness / ignorance. 'ew decision conflict with old & it is given per incuriam & not binding on later court.. • • • •
2hen the later court is not bound by the decision given per incuriam this does not mean it is bound by first case .The rule is that when ther are previous inconsistent decisions decisions of its own the court is free to follow follow either earlier/ later .This rule has been laid down for the !ourt of Appeal applied to other courts This eBception to bindin! force of precedent belongs to both the category of <" Abro!ation by subseGuent facts ?disregarde coG subse%uent inconsistent decision on same level of authority" )" Inherent vice., disregarded coG in.vice of ignoring earlier case" 2hen authorities of e%ual standing are irreconcilably in conflict a lower court has the same freedom to pic* and choose 0/2 them as the schiHophrenic court itself. <" It may refuse later decision through per incuriam ?shows boldness of judge to ta*e this" )" 3ollow a decision on ground that it is the latest authority .
6. Precedents subsilentio or not fully ar!ued ere The authority of the precedent involved saying that the decision was arrived at subsilentio. 'ubsilentio%he ter# by which the decision passess when the particular point involved in the decision is not perceived by the court or present in its #ind. i.e !ourt decides in favour of a party due to point A bt Point 0 was neither argued nor considered by court .o though point 0 was logically involved in the facts and case has specific outcome the decision is not authority on point 0 and point 0 is said to pass subsilentio.
(g.Cerard (s. 7orth of Paris < 2td ischarged employee of a company 6obtained damages for wrongful dismissal 6applied for a garnishee order on a ban* account standing in the name of the li%uidator of the company . claimnant7s debt 6 therefore !ourt of Appeal granted order. order. Point ar!uedB Priority of the claimnant7s Point not ar!ued B whether garnishee order could be properly be made on the account standing in the name of the li%uidator . 2hen this pt argued in subse%uent cases in !.+.A the the court held its not bound by previous decision. 'ir 7ilfrid Creene > point has to be decided by court 0 order was givenK since its decided 2/+ argument 2/+ $ef to crucial word of rule 2/+ any citation of authority it wasn7t binding & not followed. Precedent subsilentio 6not authoritative ?
If there If there is a general e4ception for unargued cases the subsilentio rule turns out to be a merely particular application of wider principle. reasoned A precedent is not destroyed 6 coG badly argued inade%uately considered & fallaciously reasoned .Thus a arbitary line has to be drawn 60/2B Total Total absence of argument on particular ptB which vitiates the precedent & inade%uate argumentB argumentB ground for impugning impugning the precedent only If its is is absolutely binding and indistinguishable. K."ala)rishna +ao (s. 8a9i Abdulla 'ait .&,-;01 - ' =>-4 0inding force of precedent does not depend on whether a particular pt argued or not but the pt with which a argument was subse%uently advance was actually decided by the upreme !ourt.
7. Decision of :Gually Decided ourts 2here an appellate court is e%ually decided d ecided the practice is to dismiss the appeal on principle <” Semper praesumitur pro neganto”. The rule adopted by the ouse of 8ords is that the decision appealed from becomes the decision of the ouse +f 8ords. In (era rus 6!.+.A 6'ot bound by previous decision of evenly ÷ !.+.A In 8art (s.he +iverDale Mill .2td B !.+.A 6bound by decision of evenly ÷ !ourt of (4che%uer !hamber ?whose decision co e%ual authority with !.+.A" Calloway (s. Calloway 6 'ot bound by previous decision of evenly ÷ !.+.A This practice is not seen nowB.+.8 sit sit with uneven number 6 In .! & .! .! 6ecision by majority. majority.
8. :rroneous Decisions. ecisions becomes erroneous by being founded on wrong principles or by conflicting with fundamental principles of common law. !ourt can disregard such decisions but such decision would have stood for some time in establishing law and people will have acted in reliance on it dealt with property and made contracts on the strength of it and in general made it a basis of e4pectations and a ground of mutual dealings. It is better M that situation that decision though founded in error should standB communis error facit jus. The rule that courts are bound by decisions of higher courts and in some cases by their own decision even though wrong must stand as authority until overruled by a higher authority .+n this erroneous decisions of .+.8 are corrected by statute . 2ondon ransport ransport :Becutive (s. "etts&,-@1 A >-=4 62ord Dannin! 6;iewB .+.8 could disregard a prior decision of its own which conflicts with fundamental principles of common law . In 'cruttons 2td (s.Midland 'ilicones 2td &,-?>1A //?4 B.+.8 by a majority of four to one disregarded own previous decision in :lder < De#pster and o#pany (s. Paterson ochonis and co#pany &,->/1 A @>>4. In so#e instances courts will refuse to overrule decisions which they consider to be wron! but overrule which have stood the test of ti#e. ourt donLt overrule well established precedents affecting proprietary rights or affordings • particular defences to criminal charges ourts overrule erroneous decisions of long standing which involve injustice to the citiGen • ?or"which concern area of law such as ta4ation where it is important for citiGen to e stablish what the correct law is.
The supre#e ourt of India has also differed from its previous decisions in many cases .In "en!al I##unity o.2td (s.'tate Of 0ihar 0ihar 6eld 6There is nothing in our constitution which prevents the supreme court from departing from previous decision if it is convinced of its error and its baneful effect on the general interests of the public. 'A+: D:I'I' 'tare Decisis6see the decisions $ to stand by past decision. This is *nown as 9udicial precedent. “'tare Decisis et *on 5ueita Movere”% tand by what has been decided and donot unsettle the established. 'tare Decisis +ule 6A principle of law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases.This rule is based on e4pediency and public policy .Though it is followed by courts it is not applicable in all cases.The reason is that previous decisions should not be allowed to perpetuate a wrong if the court is convinced that the previous decision is wrong. tare ecisis $ule is not so so imperative /infle4ible that it cannot be departed from but its application must be determined in each case by discretion of the court . Ori!in 6 There was no doctrine of stare decisis as there was no reporting reporting of the decisions of the 8 courts.It was in - century the decisions of (4che%uer courts came to be reported in (ngland and were given a binding force.In
This doctrine has been recogniGed by the constitution of India Article -/- 68aw declared by .! shall be binding on all courts co urts of India .The e4pression 1All courts 1B Include .!.
a 1 In "en!al I##unity o.2td .(s. 'tate of "ihar &AI+ -@@ ' ??-46 It was held the e4pression does not include .!.2hich mean li*e .+8. if with valid reason .! can depart from previous decisions. b1 Minerva Mills 2td.(s.Nnion of India &,-;01 = ' ?>@4 upreme court observed 1!ertainity and continuity are the essential ingredients of the rule of law.certainity in the application of law would be considerably eroded and suffer a serious setbac* if the highest court in the land were readily to overrule the view e4pressed by it in the field for a number of years.. iIt would create uncertainity instability and confusion if the law propounded by this court on the faith of which numerous cases have been decided and many transactions have ta*en place is held to be not the correct law after a number of years.3 c1 Mahadevlala (s.Ad#inistrator 6Ceneral of 7est "en!al 6upreme court held 6The judges of coordinate jurisdiction should not set aside one another7s judgements for judicial decorum no less than judicial propriety forms the basis of judicial judicial procedure and certainity in law is not only desirable but also essential .Thus a single Judge of .! shou ld not hold that decision of another single Judge is erronoes 2/+ referring to the larger bench .This rule also applies to division bench . d1 'hesha##a (s.(en)ata +ao &-/0 Mad 2J /004 69adras .!.Beld 6ivision bench is the final court of appeal in a .!.If a division bench does not accept the decision of another division bench then refer the matter to the ull 0ench .
edlapat (en)ateswarlu (en)ateswarlu (s.'tate (s.'t ate of Andhra Pradesh &AI+ & AI+ -; AP ===46 Andhrapradesh .! 6 e1 edlapat ame view as above case.
f 1 Ma)tul (s.Manbhari &AI+ -@; ' -;4% eld that correctness of decision has been changed from time to time and in fact has been reversed and its decision has been considerably impaired by Privy !ouncil the doctrine of stare decisis is not applicable. h1 "achan 'in!h (s.'tate of Pun9ab &,-;> 1= ' >/4% imilar view ta*en by .! as above . i1 Ja!#ohan 'in!h (s.'tate of N.P &AI+ -= ' /4% It was urged urged before the supreme court that the %uestion of constitutional validity of death sentence stood concluded against the petitioners by the decision of a constitutional 0ench of E jugdes of the supreme court and couldnot therefore be allowed to be reagitated before a bench consisting of same no. of Judges .The plea was rejected by upreme court pointing out that rule of stare decisis though a necessary tool in what 9aitland 9aitland called 1 the legal smithy Q is only a useful servant and cannot be allowed to turn into a tyrannous master. j1 'tate of 7ashin!ton (s. Dawson and co .B 0randeis .JB tare ecisis is ordinarily a wise rule of action .0ut it is not universal and ine4orable command .3 If the rule of stare decisis was followed blindly and mechanically it would dwarf and stultify the growth of law and affect it scapacity to ad just itself to the changing needs of the society he 'upre#e ourt pointed out supervenin! iru#stances which 9ustified a reconsideration of the decision in certain cases. •
•
Ja!#ohan 'in!h (s.'tate of N.P 6 The introduction of new code of criminal procedure in <=O5 by which the sec .=@/,=1 made life sentence the rule in case of offences punishable with death or in the alternative imprisonment for life and provided for imposition of sentence of death only in e4ceptional cases for special cases. Mena)a Candhi (s.Nnion of India &AI+ -; ' @ -;1 - ' >/; >B The decision of upreme court gave a new interpretation to Article >- and -/ .The new dimension of Articles )< and < rendered death penalty provided in sec. 5E ?5" of the code of criminal procedure <=O5 vulnerable to an attac* on a ground which was not available at the time when the case of Jagmohan ingh was decided in <=O5. As the case of Ja!#ohan was decided
Advanta!es
<. ). 5. . E.
ispose ispose the case early early efficien efficiently tly and in decent decent manner manner . $educes litigation litigation e4penses e4penses & increase increase court court conveni convenience ence . Judges arrive arrive at conclusi conclusion on early and reduces reduces strin strin and speed up up cases. cases. certai certainity nity in in adminis administra tratio tion n of justice justice.. octrine octrine based based on the ethica ethicall principle principle and and universal universal sense sense of justice. justice.
Disadvanta!es
<. ). 5. .
!ertainity !ertainity in changed changed circumsta circumstances nces causes causes obstacles obstacles in science science technology technology and social . It is based based on public policy policy and and its formulati formulation on of adherence adherence to precede precedent nt . 9inute 9inute discrepancies discrepancies are are there.Therefo there.Therefore re principle principle of e%uality e%uality is not e4tended e4tended accurately accurately . !odifi !odificat cation ion of of judgem judgement ent is is a big big tas* tas* .
+atio Decidendi This is the legal principle which lays behind the decision and it is this ratio which will provide the precedent for the judges to follow in the future cases?the remainder of the judgement is obiter dicta". $ule of law applied by and acted on by the court or the rule which the court regard as governing the case. A decision decision of the court can be seen from two aspects <. 2hat 2hat a cas casee dec decid ides es 2hat it decides generally is ratio decidendi / rule of law for which it is authority . ). 2hat 2hat it decide decidess 0/2 0/2 the partie partiess It includes more .It is impracticable if there is no end to litigation and parties reopen dispute at any time.Therefore law provides that once case heard appeal ta*en issue raised parties to dispute & sucessors bound by the court finding on issues decision onit .decision given on it .According to this principle matters are “rea Judicata “ and and no more dispute. :! A sues for negligence in motor accident R 0 S prosecuted for careless driving !ourt. • In this <. A & 0 60ound against each other as the findings of the case ).5$ parties not involved in original case will not be bound nor the original parties in a subse%uent dispute with 5rd party . 5.If 0 prosecuted for careless driving neither he n or prosecutor will be bound by the findings of the facts in the original action . . indings in an action may be conclusive even as against the third parties. Therefore the judgement acts in rem .i.e .against all world. •
Pettition against the nullity nullity of marriage court decision valid for → for respondent petitioner & rd also 5 party.
In Penn 6eBas orportaion (s. Murat Anstalt oreign company applied for certain certain ocs from (nglish company . !ourt held Bcourt has power to order to produce certain docs only if they were specifically identified identified therefore court didn7t order . 'ow (nglish company contend 6 court has no such general power was previously decided but this argument had already been decided in
Judge may let fall various observation not relavant to issues and illustrate his general reasoning by reference to hypothetical situation &law which he consider to apply to them .avindg decided on one point he may indicate how he would have decided if pronounced on other points if necessary to the case . The observation by the way are +biter dicta are 2/+ binding authority .They help to rationaliGe the law and suggest solution to problem not yet decided by court. $atio decidendi refers to the proposition of law for which the case is authority .If we thin* the rule as a line of graph then the case c ase itself is li*e a point through which the line is drawn.. ases -.Presented with order but 9ud!e#ent without supported reason . >. 2en!thy 9ud!e#ents 9ud!e#ents support decision with several proposition proposition . 2hen a court states a new rule it can7t have before it all possible situation which rule stated might cover but also undesirable ones that it should apply.In apply.In such case court cou rt . <. should view that original rule too widely stated stated 6therefore restrict its its application . ). If not court state rule which neither con cerned nor obliged to formulate all possible e4ceptions.It must be dealt with as and when it arise. (arious #ethods of Deter#inin! +atio $atio is ageneral rule without which the case would have been decided otherwise. -. +eversa +eversall test 6Prof.7 6Prof.7a# a#bau bau!h !h Ta*e a proposition of law given by Judge →$everse /'egate→ if alt then proposition/ratio is the part of it → If no difference then its not. his test not useful B where no proposition of law given .Bi.e report is statements statements of facts and order that was made. made. B where court gives several several reasons reasons for for its its decisionB decisionB in such such each reason reversed reversed would would remain remain st unaltered 6The < reason is ratio and the rest are obiter ob iter dicta. >. Prof Prof.C .Coo ood d hart hart According to this ratio is to be determined by b y ascertaining the facts treated as material by the ju dge together with his decision on those facts This directs us from the judges from what they say and what they do .This helps us to derive ratio from cases where no judgement given. In cases where judgement given it is from this we must determine which facts the judge deemed material and which not . 3acts → Jud!e#ents Material facts test → Proposition of law are only authoritative as they are relavant to facts in issue in a case I##aterial facts Kanything absent in judgement to the contrary . 2e cannot always rely on the Judge7s resoning in case because there are caseswhere Judge bac*s up his decision with argument on policy and justice. his test is very useful #ethod for ascertaining ratio decidendi .0ut in current practice the court seem to pay more attention to the Judge7s own formulation of law . "rid!es (s. 8aw)esworth A customer found purse on the floor of shop .ispute arose whether shall be given to finder/ shop*eeper .The court followed 1finder 6*eeper Q principle and gave it to customer treating shop as public place. 'outh 'taffordshire 7ater 7ater o .(s 'har#an ,-;?1> 5 "// Plaintiff owned a pool .efendent found gold ring in the mud pool .Plaintiff claimed those rings .efendant argued based on 0ridges case .The court held that gold rings shall be given g iven to plaintiff because the mud pool was owned and occupied by them &it is plaintiff7s private place. Dono!hue (s. 'tevenson
It is leading case in torts and consumer justice .Plaintiff with 8ady friend went to cooldrin* shop & purchased ginger beer in a blac* coloured bottle .he dran* and felt uneasy and vomiting .ound a decomposed snail in bottle & sued the manufacturer for negligence .Trial court %uashed the petition and they reached the ouse of 8ords. Judgement , .+.8 In favour of plaintiff & ordered manufacturer to pay co mpensation .ere we have to *now how .+.8 Dave judgement in favour of plaintiff.If similar type of case filled before any court then court
a" ABefe ABefenda ndant nt 69anuf 69anufact acture urerr of ginger ginger beer beer . b" ecomposed snail found in the opa%ue blac* bottle .since blac* no body could observe it &it caused ill 6health to plantiff7s ladyfriend. c" !ontract !ontract 0/2 A & $etailer $etailer of supply the merchandis merchandisee of goods .Therefore .Therefore A liable liable to supply.If supply.If no contract then too A should merchandise under Qale of Doods Act7 .Therefore A violated his duty of care. d" The distributor distributor supplie supplied d by trusting manufactu manufacturer rer & diin7t *now *now the decomposed decomposed snail presence. e" Threfore Threfore retailer retailer with with bonafide bonafide intention intention sold sold to custome customerr . f" The concerne concerned d person person who who supply supply the the bottle bottle did not not note. note. g" The health health of plaintiff plaintiff Qs ladyfr ladyfriend iend got spoiled spoiled . h" This happened happened in cotland cotland & plaint plaintiff iff sued sued A in 0ritain 0ritain .There were were differe different nt laws & procedures in cotland & 0ritain .Therefore trial court erred in determining determining duty of care of manufacturer. i" In above above both %uestio %uestion n of facts facts and %uesti %uestion on of law law found.The found.The court court considers considers both both . j" The trial &appellate court in cotland %uashed proceedings &plaintiff appealed to (ngland . <. Advocate Advocate of A argue argue that law in both countrie countriess different different & this this is based on cotland cotland law &.+.8 have no authority to decide. ). 0ased on points points a b f g 6Advocate 6Advocate of plaintiff plaintiff argue due due to negligence negligence of A his ladyfriend got ill health & A Qs Qs duty is to supply merchandise of goods. 5. 0ased on points points b c h 6Advocat 6Advocatee of plaintif plaintifff argue argue whether whether / not agreement agreement 0/2 0/2 A and $etailer . A is is liable to supply merchandise of good .Therefore liable under law of torts . . 0ased on points points b h 6A situated situated far from from plaintif plaintifff & but caused tort tort .Therefpre .Therefpre A is neighbour. These points are ratio decidendi which are the outcome of analysis. $atio 6 rere courts
8ord unedinB 1If not clear what ratio decidendi was then it is no part of o f the later tribunal Qs duty to spell out with great difficulty a ratio decidendi in order to be bound by it.3 Jessel .M.+%“A rulling rulling given by ajudge aju dge in a case may be b e right /wrong in the circumstances of the case the judge might have felt it right .8ater the circumstances have been change .After changed circumstances the judgement given by the )nd judge may be %uite against the judgement of the former .If the 5rd should scan both the judgements and should interpret them and should give his own judgements depending upon the real intention of the framer of the act .Those rationes are genuine which come nearer to the intention of legislature.” Cenuineness of +atio Decidendi in the precedent considered in followin! points <. A rulling rulling given in in a precedent precedent if not related related to to the facts facts of the case case .such rulli rulling ng is not good. ). A rullin rulling g given against against the real intentio intention n of legislature legislature is not not good rulling rulling .If a rulling rulling points out the defects in the statute which creeps in the statute due to the oversight or ill 6intentionor against constitutional law then Judge can point out such defect and can give a rulling.uch rulling becomes good rule.(g.The .! s%uashed ec.5F5 of IP! in 9ithu ;s. tate ?<=N" case. 5. 2hen a Judge or court court gives a new rulling rulling it is his / its its liability liability to e4plain e4plain rationes rationes in giving giving such new rulling. . If rulling rulling not rationale/ rationale/ reasonab reasonable le then such rullin rulling g is not ta*en into into consideratio consideration n ?not become become ratio decidendi." E. A court court may give give more more ratio decidendi decidendi in in one case if if there are are several facts &matt &matter er L. The obite obiterr dicta dicta cannot cannot form form ratio ratio decide decidendi ndi . O. 8ord enning enning .9.$ 1If the court court has to interpret interpret the the wills trust trust deeds sale sale deeds shall shall rely less on the rulings of the precedent and more on the real intention of the testator trust author and other parties to the deeds as the case may be .Then only the court should come to a conclusion depending upon each of such circumstances.3 N. In onoghue onoghue ;s.tevenso ;s.tevenson n case the .+.8 defines defines Qneighbour Qneighbour Q Principl Principlee in a wider sense and made manufacturer liable to pay compensation to the plaintiff. =. If there there are two or more more judges judges trying trying a case unanimou unanimously sly gave rulings rulings in in that case case ?$.".In ?$.".In 9acnaughton7s case
