Describe original precedent and overruling using the source and other cases to illustrate your answer.

Original Precedent arises if the point of law in a case has never been considered before.

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Describe original precedent and overruling using the Source and other cases to illustrate your answer.


Original precedent is an interesting concept. It arises if the point of law in a case has never been considered before. There are no past cases upon which the judge can base his decision so the normal doctrine of judicial precedent cannot apply as there is, quite literally, no precedent to follow. So what does the judge base his or her decision upon?


It is likely that they will consider appropriate cases which involve a very similar principle to the one involved in the case that they are dealing with and apply similar rules. This approach is known as reasoning by analogy and says that if certain different things are similar to each other in a number of different specific ways they should be similar to each other in other ways as well. In other words cases with similar facts should be treated similarly in law.


Using the Source the case of Donoghue v Stevenson (1932) is an example of an original precedent. As there was no previous decision to bind them, the judge was able to make an original precedent. Lord Atkin took the opportunity to set out what became known as the 'neighbour rule' saying "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."


This concept of reasoning by analogy can be seen in the case of Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995). The case involved claims by residents that the erection of the Canary Wharf Tower interfered with the reception of television signals, spoiling their enjoyment of television programmes. The case raised the question of whether such interference could constitute a private nuisance. The analogy which was made was that the interference was like the loss of a view and for which there was an authority in Alfred's Case (1611). The judge held that the loss of a view was not actionable nor was the building of a property in the line of site of the transmitter which resulted in a loss of signal.


The concept of original precedent raises the question of whether such a principle is needed, bearing in mind we have had a common law system based on judicial precedent for centuries, are we likely to ever need to create new or original precedents? The answer seems to rest with the need to apply the law to an ever changing environment where technology and innovation provide new situations and circumstances. Issues and questions arise as to whether the law covers these situations or whether a new law is needed. It would appear that using the example of Hunter and others original precedent is capable of being applied to new situations.



This issue of original precedent raises the argument as to whether judges create law or are merely declaring it. Some hold the view that the law already existed and that it was only at that first time when a judge had to decide what the law was. This supports the view that judges do not create law. Others hold the view that when judges do decide a new point, the judge is creating new law. If we were to apply this latter view to the case of Hunter and others then we would say that the judge, in using the analogy, was creating new law. However Lord Esher took the firm view that even in such situations judges were merely declaring the law. It was Lord Esher who stated in Willis v Baddeley (1892) "There is … no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable."


Whatever our view the judge is endeavouring to determine the outcome in a case and using legal reasoning to help in that process. On the one hand it could be said that original precedent goes beyond the role of the judiciary and it is their job to declare the law not to create it. However one could also argue that it is the role of the judiciary to resolve legal disputes and provide appropriate remedies and that is, in effect, what the judiciary are doing when they create an original precedent.


The tort under the rule in Rylands v Fletcher(1868) is described as one of strict liability whereas it appears to be closely related, in many respects, to the tort of nuisance. This will become more apparent when we note that one of the elements of the tort requires that the user is 'non-natural' and that the tort only applies in respect of damage to land. This suggests that the tort was born out of necessity and convenience in order to meet the needs of the situation. We need to look at the elements of the tort in order to properly understand the nature of the liability created by the rule.


It was Mr Justice Blackburn who defined the tort for the first time with the now famous words: 'the person who, for purposes of his own, brings on his land, and collects and keeps there any thing likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape'.


We have come to accept that the tort can be defined as the liability for bringing onto land an accumulation of something which is likely to cause harm if it escapes, and such a use amounts to a non-natural use of land and, should the substance escape causing damage, the tort can be said to exist.


This tort is one which relates to the use of land but is usually contained in a separate section in textbooks as it appears to have a special category all of its own. The tort seems to have come about as a result of the unnatural use of land and the escape from it of a substance which caused damage. The courts appear to have recognised the need for a principle of liability and established the rule accordingly.


The case itself concerned the construction of a reservoir which, when filled with water, flooded the underground mines on the neighbouring land. It transpired that some disused shafts had not been filled properly allowing water to escape causing damage to the adjoining mines.

The courts eventually found in favour of the claimant who had claimed in tort in respect of the damage to his mines.


We now need to turn our attention to the concept of overruling. Overruling a previous precedent arises where a court decides, in a later case, that the legal ruling or reasoning in an earlier case was not correctly applied or no longer appropriate, and the case is no longer considered to be good law. By its nature it is dependent upon a higher court in the court hierarchy considering the earlier case and taking the opportunity to rule that it is no longer appropriate. The effect of the ruling is that it is intended that it is not applied and followed in future cases.


Overruling has not always been welcomed. During the nineteenth century any suggestion of flexibility had all but disappeared. The House of Lords favoured the practice that it would be bound by its own decisions as it regarded certainty in the law to be more important than individual hardship. This stance was reaffirmed in London Tramways Co v London County Council (1898).


Despite such criticism, the practice was not changed until 1966 by Lord Gardiner LC, through the Practice Statement (1966). The Practice Statement enabled the House of Lords to depart from previous decisions when it was right to do so. The Practice Statement allowed the House of Lords to change the law to meet changing social conditions as well as enable the House to fall in line with the practice of superior courts in many other countries.

The first time the Practice Statement was used was in Conway v Rimmer (1968) when an ex police officer sought the disclosure of some police files when he claimed he had been wrongfully prosecuted. The Home Secretary claimed public interest immunity for all such files. The House of Lords used the Statement to remove this presumption and reviewed the decision in Duncan v Cammell Laird & Co Ltd (Discovery) (1942). They ruled that it was for the court to examine the documents and they would order disclosure if it was agreed that the public interest in the administration of justice was greater than the public interest in confidentiality. The House of Lords overruled the decision in Duncan v Cammell Laird & Co (1942) despite the similarity in the two cases. Importantly, the decision in 1942 was made at a time when the country was at war whereas in 1968 there was no war.

In British Railways Board v Herrington (1972), the House of Lords overruled, or at least modified, Addie v Dumbreck (1929). In Addie, the House of Lords had held that an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly. In Herrington, their Lordships held that a more responsible approach was appropriate in the changed social conditions since 1929. The House advanced the test of 'common humanity' which involved the question of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.

In Miliangos v George Frank (Textiles) Ltd (1976), the House of Lords overruled Re United Railways (1961). In Re United Railways, it had been held that damages in an English civil case could only be awarded in sterling. In Miliangos, the House of Lords held that damages could be awarded in the currency of any foreign country specified in the contract. A new rule was needed because of changes in foreign exchange conditions, and especially the instability of sterling at that time.

In R v Howe (1987) the House of Lords took the rare opportunity to review an area of the criminal law itself rather than leave the job to Parliament. As a result, the House of Lords overruled DPP for N. Ireland v Lynch (1975), and decided that the defence of duress is not available to a person charged with murder, whether as a principal or as a secondary party.

In Lynch, the House of Lords had held that duress was available as a defence to a person who had participated in a murder as an aider and abettor. In Howe, their Lordships sought to restore this part of the criminal law to what it was generally understood to be prior to Lynch.  In so doing the House made an obiter statement at the time to the effect that although it was not necessary for the House to consider the point as it did not arise in Howe, it took the view that they saw no good reason why duress as a defence should be available on a charge of attempted murder either. The obiter part of the judgement in Howe was followed in the case of R v Gotts (1992).

Using the Source the power to overrule cases is used sparingly because it weakens the authority of and respect for parliament which is a major disadvantage. The House of Lords have not always felt able to intervene and have preferred to leave the job to Parliament.

In C v DPP (1995), the House referred to the anomalies and issues raised by the rebuttable common law presumption that a child between the ages of 10 and 14 is incapable of committing a crime. Despite some suggestion that the House had some sympathy for the arguments for change, the House refused to abolish the presumption and publicly stated that they called upon Parliament to act on the matter. The case is helpful in that Lord Lowry gave some considered guidelines as to when it might be appropriate to engage in judicial law-making. Lord Lowry, who gave the leading judgement, said it was time for a much- needed new look at an undoubted problem. "This is a classic case for parliamentary investigation, deliberation and legislation." he said. Lord Lowry was perhaps right to be cautious as we now know the age of criminal responsibility is still the subject of considerable debate to this day.

Ordinarily the Court of Appeal is bound by its own decisions (Young v Bristol Aeroplane Co Ltd (1944)) but there are exceptions. These are:

  1. Where there are conflicting decisions, the court must choose which one to follow;

  2. Where there is a decision of the House of Lords which overrules a CoA decision the CoA must follow the House of Lords ruling; or

  3. Where a previous decision has been made per incuriam.

The effect of the Young case was to restrict the Court of Appeal's ability to overrule to very limited exceptions and Lord Denning's protestations on this point are well documented.


(Word Count 2244)

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An essay that looks in detail at the concept of original precedent and then goes on to discuss overruling. Links to some of the cases included in the essay are available on the right of this page and links to other useful resources and some of the key terms referred to in the essay are set out below.

Other essays covering judicial precedent are available via the links on the right hand side.

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