Case law, appeals and precedent

If a a party who loses a case in court disagrees with the decision, they may appeal. The appeal is heard by a higher court and the decision made by this court is binding on the lower courts, that’s known as setting precedent and forms the basis of our case law.

The party who decides to appeal against a court decision is known as the appellant and it can be either the claimant or the defendant. The other party, the one who defends the appeal, is referred to as the respondent. The appeal is heard by a higher judge, usually in a higher court. Where the appeal is heard depends on the nature of the appeal and the court where the case was started, referred to as the court of first instance. The county court, magistrates court and the High Court are all courts of first instance because actions can be started in all of them.

Courts of first instance and appellate courts

The Court of Appeal and the Supreme Court are not courts of first instance because no action can be started in these courts, they are appellate courts which means they only hear appealed cases.

The Crown Court and the High Court are both courts of first instance (where cases are started) and appellate courts that hear appealed cases from the lower courts (magistrates and county courts).

REFERENCESee court structure for more information about the various courts.

Appeal Route

Action fromAppeal taken to
County court District Judge - small claims trackCounty court Circuit Judge
County court Circuit Judge - fast trackHigh Court
County court Circuit Judge - multi trackCourt of Appeal Civil Division
High CourtCourt of Appeal Civil Division
Magistrates Court appeals based on sentence and conviction or on fact and law Crown Court
Magistrates Court appeals on a point of law by way of case statedDivisional Court of the Queens Bench Division of the High Court
Crown CourtCourt of Appeal Criminal Division
Court of Appeal (both divisions)Supreme Court

The doctrine of precedent relies on the hierarchical structure of the court system. Decisions made by the higher courts are binding on the lower courts, cases taken to the higher courts for appeal are said to set precedent because the decisions made have to be followed by the lower courts when dealing with similar cases. Decisions made by the courts of appeal are often referred to as authorities.

There are two requirements for a precedent to be binding:

  • it must be what’s known as ratio decidendi, i.e. the reason for making a decision and;
  • the decision must have been reached by a higher court or, in some cases, a court of equal standing.

Provided the material facts of the case are the same, the earlier decision must be applied. Judgments are not always straightforward to read and interpret because they can be long and contain a variety of statements such as:

  • Findings of fact, which can be direct or inferential. Inferential means they are deducted from the direct facts and these findings are not binding. A judge is not bound to draw the same conclusion drawn in an earlier case even if the facts appear to be the same.
  • Statements of law, which are the legal principles relevant to the case. Ratio decidendi, i.e. the reason for deciding, are statements of law applied to the facts which form the basis for the decision. Michael Zander, defines ratio decidendi as “a proposition of law which decides the case in the light or in the context of the material facts”.
  • Other statements, known as obiter dicta statements (which means “mere comments”), do not provide the basis for the decision. These are not binding but are persuasive and can be referred to in an attempt to persuade a judge.

A case can contain more than one judgment, i.e. more than one judge hearing the case and reaching the same conclusion for different reasons.

  • The Supreme Court (formerly the House of Lords) binds all British courts but it’s not bound by its own decisions. 
  • The Court of Appeal (Civil Division) binds all lower courts. It is also bound by its own past decisions except:
  • If there are two conflicting decisions, the court can decide which one to follow.
  • The court cannot follow a decision that cannot be reconciled with a decision of the Supreme Court or the House of Lords.
  • The court is not bound by a decision that was found to have been flawed, for example, due to lack of evidence at the time the decision was made.
  • The Court of Appeal (Criminal Division) binds all lower courts and it’s bound by its own decisions with the same exceptions noted above. Additionally, if there are conflicting decisions, it should prefer the one that favours the defendant and where the liberty of the defendant is at stake, it may refuse to follow a previous decision.
  • The Divisional Courts bind all lower courts and are bound by the decisions of the Supreme Court and the Court of Appeal and also by its own decisions.
  • The High Court is bound by the decisions of the higher courts but not by its own previous decisions, however, they are persuasive.
  • The County Court, Magistrates Court and Crown Court do not create precedent and are bound by the decisions of the higher courts.

Distinguishing

When applying precedent, judges have a certain amount of leeway by distinguishing one precedent from another. If a judge considers the facts of a case considerably different from those of a previous case, he may decide not to follow the decision reached in the earlier case.

Advantages and disadvantages

  • Advantages
    • Encourages fairness as similar cases are dealt with in the same way.
    • Creates a degree of certainty in the law.
    • There is opportunity for the law to change.
    • Cases are practical examples of application of the law to real life.
    • Saves time.
  • Disadvantages
    • The fact that the Supreme Court is not bound by its own decisions but the Court of Appeal is may cause a certain rigidity.
    • The need to wait until cases reach the higher courts can delay the evolutionary process of the law.
    • Case law is complex and it can be difficult to locate the relevant authority given the large numbers of reported cases.
When we refer to case law, we refer to cases that set legal precedent, that is, cases that have been appealed to and heard by, the higher courts.
Cases decided by the lower courts such as the magistrates and county courts may be referred to for information purposes but they do not set precedent and do not form part of our case law as such.