1.

Introduction: The common law comprises of the judgment of the courts o England and Wales dating back to Norman times. When the court system was developed. The UK is still a common law and the importance and effectiveness of Judicial creating a common law principles and practices cannot be discontinued 2. Definition of Judicial precedent: Where a judge in a lower court is aware of a legal principle set by a higher court in a similar case or the facts or point of law are sufficiently similar, then his previous decision must be followed. It is his element of binding precedent which is ditindine within the English system. 3. Ratio and Obiter Dicta: Not everything in a case report sets a precedent. The contents of a reposit can be divided into two categories: a) Ratio Decidendi, b) Obiter Decidendi a) Ratio Decidendi: What really matters from the point of view of lawyers who wish apply the doctrine of precedent, is the principle which can be drawn from the use by combining the relevant legal principles with the medollal facts on which the decision is based. This principle is known as the ratio decedent. Shortly the important part of the judgment is called ratio. It is binding on future courts. Michael Zander: A principle of law which decides a case, in the light of ar in the context of the material fact. Cross: Any rule of law expressly or implied treated by the judges or a necessary step in reaching this decision, haring regard to the line of reasoning adopted by kin. In Carlill vs Carbolic Smoke Ball Co: The ratio decedendi is that a contract cannot be made with the whole word, but an offer can be made to the world at large. This type of offer will be accepted by performance (like Mrs. Carlill). b) Obiter Dicta: Any statement of law that is not an important part of the decidedness is strictly speaking super flueus. And any such statement is referred to as an obiter dictum that is said by the way it is persuasive for later cause. Maclormick: legal reasoning and legal theory statements of opinion upon the law and its ratues and principles in their bearing on the instant decision statements which is some way go beyond the point or points necessary to be settled in the deciding case. In RV Howe: The HI commented that a defense of duress should not be available on a charge of attempted murder.

Oppleration Precedent in All Courts 1) The European Court of Justice: Under section 3(1) of the European Communities Act 1972. ECJ decisions are binding on all member states courts in matters of community law. On the other hand ECJ is not bound to follow its own previous or any higher court decisions. So UK supreme court is bound to follow the ECJs decision even UK parliaments Act will not be superior it is conflicted with ECJs decision.

2) The European Court of Human Rights: The ECJHR do not bind themselves, but their decisions are binding on the courts in England, in Mendoza v Chaidam (23004) followed the ECJHR case Petrovic V Austria (2001) and by their decision court of appeal overruled the HLs Fizpatrick v Sterling (2001) cases decision. 3) Privy Council: Pc is not bound to follow any higher court decisions, but it is rare for it to deposit from a House of Lords decision. Thus in Tai Hing Ltd v Liu Chong. Hing Bank (1986) on the other hand PCs decisions are not bounding on UK court. But it is strongly persuasive. In R v Eakir Mohammad Pc followed the Holy decision which was PCs case though there was R v Smith (Morgan) and it was HL decision but CP did not follow it, however PC generally does not follow its own previous decision.

4) The House of Lords: the Hl is based to follow the ECJ and ECJHRs decision. On the other hand Privy Councils decisions are highly persuasive. Whoever HL is not bound to follow its own decision after 1966. Moreover, the ratio of a decision of the HL binds all inferior courts in this country. Though CI sometimes do not follow the decision of the HL. These are considered in bellow.

i) Situation before 1898: Since the HL decided the English case of London Street Tramways sic v London Country Council in 1898, the house have considered themselves bound to follow their own decision, except weather a decision has been given per incuriam in disregard of a statutory or another decision binding them The importance reasons of this decisions: 1) The highest Appeal court should be final in the public interest, 2) To create continuity in the Law. The rule however did not create certainty and had become very rigid by the end of the nineteenth century. This is because the practice was eventually changed in Jelly 1966 by the Breeticc Statement. ii) Situation of the practice statement 1966: Lord Gardiner LC They propose, therefore to modify their present practice and while treating former decisions of this house a normally binding, To depart from a previous decision when it appears right to do so. The important reasons from which the previous custom is changed: 1) it is ensured that law will be develop with the developing society. 2) it would enable the house to pay more attention to decisions of superior courts in the commonwealth. 3) This change ensured the similarity with the countries. In the USA for example the US Supreme Court and State supreme courts are not bound by their own previous decisions. However the practice statement has been rarely used by HL. 4) it is also ensures that HL will be able to maintain the superiority both the ECJ and ECJHR by this change.

5) Overruling Case Law: In Connway v Rimmer 1968 the unanimously overruled Duncun v Cammal Lairdand Co in 1942 on a question of the discovey of documents. It was first case after 1966. In the earlier case the HL held that an affidiant sworn by govt. minister was sufficient to enable the crown to privilege not to disclose documents in civil litigation. Without these document being inspected by the court. In the later case their lordships held that the minister affidant was not binding on the court. In Milianges v George Frak the HL departed from previous decision arguing that changing the law could enable the courts to keep steep with commercial needs and furthermore would not lead practical and procedural difficulties.

6) Court of Appeal: The decision of the court of appeal is binding on the high court and the country court, but do not the HL. On the other hand at bound to follow the HLs decisions but if the decisions are conflicted with ECJ and ECJHR, this rate will not be go liable. However the court of appeal generally is also bound by its own decisions in civil case. But there are number of exception in his general rule. Lord Crane MR mentioned the exception inJoung v Britolteroplane Cold (1944). Example: 1) When it own previous discussions conflict the court appeal must decide which to follow and which to reject. In Tixertan Estates Ltd v Wearwell 1974 and Lae v clones Shipping v Tearlines Sahage 2000. 2) In the decisions of the court of appeal is overruled by HL either expressly or implielly. In family housing Association v Jomer 1990, the court of appeal felt obliges to rgnors its own precedent to an the distinction between a licence and denancy in property law where although they had not been expressly overruled, they were implicity in conflict with later decirimors of the Street v Mount Ford. 1985. 3) When an earlier decision was give per incuriam, that mean the decision was careless or mistake or menifast ship or error. Per incurium can be found in Rickard v Rickards 1981, in which the court of appeal held that its earlier decision in Podbeary v Peak 1981 had misunderstood and prolongly applied HLs decisions in Lian v Eskdale.1891.

7) Method of arolding precedent: A reported case will list the areas that were considered to be bindingly precedent and those which though relevant were not so considered. Previous areas are described: Distinguishing: A previous case is only binding in later case of the legal principle involved in the same and the facts are similar. If a court find sufficient different between the material facts of a previous and a current case, then it may depart from the previous decision. The process of distinguishing cases is extremely important in practice, because it enables the judges develop the law, rather being bound by precedent in every situation. In King v Phillip 1953 the court of appeal held the D was not liable to the mother because on the fact but it is distinguished in Boardman v Sanderson 1964 , the CP held the father was entitled to damages for the shock he had suffered. R v Smith in which R v Jordan where the V died of pneumonia and the chain of accusation broken was distinguished. There also famous distinguishing is R v Kennedic and Hoppkings 1997. Distinguished the second R v Mazo 1997, which has distinguished the first OPP v Orbez. Reversing: Precedent may also be avoided by a supreme court in the hierarchy reversing the decision of court lower down the hierarchy during the course of the same case. For Example R v Kingaton sechecc the HOL reversed the decision of the CA and held that involuntary intoxication will not be a defense unless it prevents the D farming means for the crime charged even though the D was not at fault for becoming intoxication.

Overruling: When high court departs from his or any other his previous decisions. For instance CP can overrule an earlier High court decisions and CP also can depart from his own previous decisions when it faces with three exceptions which are described above. Moreover the ECJ and HL can also accruule their previous decisions.

8) Judicial Law making: There are many dispulation behind Judicial Law making. Judge have to interpret the law and sometimes they differ from their previous decisions using by new methods. Moreover sometimes they opine on new dispulation which is not mentioned in constitution. On the other hand judges are criticized for their law making.

9) Some declaratory theory: The declaratory theory of judicial law making was famously explained by William Blackslane. Writing during the eighteenth century. He said, Being sceourn to determine not according to his private sentiments, not according to his own private judgment, but according to new laws and customs of the land not delegated to announce a new law but to maintain and impound old one. Sir William Holdsworth explained the theory in his article, pasess do not make the law, but are only the best evidence of what the law is. Lord Hobhouse in Rv governor of Brackhill Prison 2001 said, the common law develops or circumstances change and the balance of legal, social and economical needs changes. New concept come into play new statues influence non statutory law. The strength of the common law is its ability to develop and evolve. All this carries with it the inetivitable need to recognize that decisions may change. What was previously thought to be law is open to challenge and review if the challenge is successful. A new statement of the law wills ake the place at the old statement. 10) Judges make the law: Through frequently stated that making law is the prerogative of parliament but those are severa areas in which judges clearly do make law which are examined before. 1= In the first place the case law made by judicial decesions Contract and tort law are still largely judge made, and many of the developments for example: the development of negligence as a tort have lead profound effects. Even though the statues have been later passed on these subjects and occasionally the parliament has attempted to embody whole areas of common lace in statury form, these still embody the original principles created by judges. 2= Secondly the application of law wheather case law or statate to particular case is not usually an automatic matter terminology may be ambiguous new development in social life have to be accommodated, and the procedure requires interpretations as well as applications. Judicial precedent does not always make a particular decisions obious and obligatory.There may be conflicting precedents , their implication may be unclear and there are ways to getting around precedent that would produce unstable decision.if it is accepted by the black stones. Declarity theory does not applied in to practice. Then clearly judges do not make law. Rather then explaining the law that is already there. The theories advanceby kairysGriffity and Worldron all accept that judges do have lisecererty and therefore they do to some extant make laws. 3= New disputation: This was case in airdable NAS Trust v Bland. Where HL considered the fate of Tony Bland, the football supporter left in coma after the Hillstorough stadium disaster. The court had to decide whether it was laceful to stop supplying the drugs and artificial feeding that were keeping Mr Blond Alive, even though it was known that doing so could mean his death soon

afterwards. Several law has made plain that they felt cases sising wholly new maral and social issues should be decided by parliament the judges rolw being to apply the principles which society through the demotic process adopts not to improve their standared on society.nevertheless the council had no option but to make decision one way or the other and they decided the action causes laceful in the circumstance, because it was in the patients best interest. 4= Thirdly Uk judges have been left to define their own rule and of the courts generally in the political system more or less as they please. They have for example given power to review decisions of any public body. Even if the parliament said those decisions were not to be received. And despite their frequent pronouncement that it is not for them to interfere in parliaments law making rule. The judges has made plain that they will not, unlessed forced by very explicit wording. Interest statues on forcing common laws right or judge made the law. They also control the operation of case law without the reference to parliament. An ovious example is that the 1966 practice dicrition announcing that HL would no longer be bound by its own decesions which made law more flexible . and thereby gave judges more power was made council authority without needing permission from parliament.

5= Despite this faitrly cautios sounding views some commentaries feel that judiciary apprackus fending to go too far, and studying outside its contribution place writing in the new law journal in 1999 francis bnnion a formerly parliamentary councel criticized what he called growing appetite of same judges for changing the law themselves rater then waiting for parliament to do it. Brenon argues that in making decision like these the judiciary are taking powers to which they are not contributionally entitled. And that they should not extend their law making role into controversial was. When should or should not judges make the law: Again this is a subject about which there are different views. No least among judiciary and the following are some of approaches which are suggested. Adopting Social Change: Lord Broune Wilkinson considered that it was imperative that the moral social and legal issue raised by this are should be considered by parliament and the democratic process to give voice to principles that reflected a consensus Connections of Law making: It is distinguished by Lord Derlin between activist law making and dynamic law making.