Hierarchy of Courts and Precedent
Precedent works in the context of the hierarchy of courts. In Ireland, the Supreme Court and Court of Appeal stand in the hierarchy above the High Courts and deal principally with points of law. A decision of the Supreme Court is binding on the High Court and is generally binding on the Supreme Court itself, save for exceptional cases where it will reverse its findings on the law.
Precedent seeks to increase certainty and remove arbitrariness in the decision on matters of interpretation and discretion. The High Court is bound to follow the Supreme Court and Court of Appeal precedent even if it is inclined to the view that it is wrong. The High Court is bound by the ratio decidendi only and not statements that are made obiter. However, obiter comments of the Supreme Court will be influential on the context and the statement will determine the weight which it holds.
In and around the same time as the House of Lords made its practice statement on precedent in the mid-1960s, the Irish Supreme Court adopted a similar position. It contemplated that where there are compelling reasons the Supreme Court may depart from earlier decisions. The Supreme Court has been prepared to adapt and modify the law where previous decisions are of entirely inappropriate in the light of changed economic and social conditions.
There may be a compelling reason where a previous case was decided in error in the sense that a relevant statute or authority was not known to the court. The point might have been overlooked or conceded by counsel without arguments. These are examples of exceptional cases, but there may be other circumstances, compelling circumstances.
Irish Courts Hierarchy I
Generally, High Court cases are heard by a judge sitting alone. In some cases, where the matter is of exceptional public importance, a divisional High Court with three judges, may sit. There are usually three, five and sometimes seven judges in an Appeals Courts. The Supreme Court may sit in divisions of three, most commonly five and exceptionally, seven judges.
Since 2014, there is a Court of Appeal which hears most High Court Appeals and has also assumed the role of the former Court of Criminal Appeal. It usually sits with three judges from a panel of eleven judges. Exceptionally, there is a further appeal to the Supreme Court on points of law of exceptional importance.
Where there are is more than one, judge, several judgments may be given in the case. This commonly occurs in the Supreme Court in Ireland and in the Courts of Appeal and Supreme Court (former House of Lords) in the United Kingdom. In such cases, it may be difficult to determine the ratio decidendi of the majority of judges.
In an Appeal Court, different judges may lay emphasis and base their decision on different principles. In some cases, one or more judges may dissent, from the decision of the others, in relation to the outcome of the case. The majority decision will determine the matter. Sometimes a dissenting judgment will in time gain ground and be found more persuasive in later cases than the majority decision. However, in strict terms, the decision of the majority will constitute the judicial precedent.
Irish Courts Hierarchy II
The decision of the lower court does not bind the higher court. Accordingly, decisions of the High court are not binding on the Court of Appeal and the Supreme Court. Indeed very function of the Supreme Court and the Court of Appeal is to review decisions of the high court for errors of law.
The Court of Criminal Appeal formerly comprised High court, Supreme Court and lower court judges. It has been replaced by a standing Court of Appeal with its own dedicated judges. The Court of Appeal now stands between the Supreme Court and High Court and hears most High Court appeals. Very exceptionally, a further appeal may be permitted to the Supreme Court. The Court of Appeal usually hears appeals with a panel of three judges.
The Court of Criminal Appeal indicated that it would depart from previous decisions in exceptional cases. In common with the EU, in this Court of Criminal Appeal may depart in exceptional cases where the justice is best served by such a change, the liberty of the citizen is in question, and it justifies a less regimented approach to precedent.
The High Court occasionally sits as a three-judge divisional court. In such cases, its decisions are binding on a single judge.
The High Court is generally bound by previous decisions of other High Court judges but not absolutely bound. The High Court may depart from earlier decisions if the judge is the view that they were clearly wrongly decided.
The decisions of the High Court are binding in the Circuit Court and the District Court. In principle, decisions of the Circuit Court are binding on the District Cort. However, written judgments of the Circuit Court are rare.
New Supreme Court v Old Supreme Court
The Irish courts were reconstituted in the early 1960s following a Supreme Court decision. The Supreme Court decision had found that the 1937 constitution, the reestablishment of the new court. The question has arisen from time to time as to whether the same status should be accorded to the old pre-1961 Supreme Court as with the new post-1961 Supreme Court. The same personnel continued on the pre-1961 and post-1961 Supreme Court, and to some extent no change in substance took place.
It has been stated in a number of occasions that the Supreme Court might more readily overrule a pre-1961 Supreme Court decision as a post-1961 Supreme Court decision. Equally, there have been comments that a pre-1961 decision should not be overruled unless it was clearly erroneous effectively the same test for overruling a post-1961 decision.
Different opinions have been expressed from time to time on the status of pre-1922 House of Lords decision. Prior to 1922, the House of Lords was the final court of appeal for the whole of Ireland. The Privy Council continued to be the highest court in respect of the Irish Free State until the mid-1930s.
There had been opinions both ways as to the extent to which pre-1922 decisions of the House of Lords are binding. In common with the general approach with the Supreme Court, such decisions are likely to be given the highest respect unless they are clearly erroneous in the above sense.
The decisions of non-Irish courts are not binding but may be of persuasive value. The decisions in other common law countries are often and adopted an Irish judgment particularly when there is no Irish authority. Inevitably given the relative size of the United Kingdom in Ireland, English decisions are very frequently cited in Irish courts.
The view has been offered on occasions that English decisions should be followed unless they are clearly wrong. However, the Irish courts are not bound to follow them if there are compelling reasons. In many cases, the effect of the Irish Constitution may justify a departure from English precedence.
Where the English decisions represent very well-settled authority pronounced by a higher court that became part of the Irish law prior to independence, then provided that they are consistent with the Constitution, the Irish courts will follow usually them.
Effect of the Constitution
Although English precedents will frequently provide convincing and authoritative statements of common law, the Irish system based on the supremacy of the people rather than the supremacy of the parliament. There is a written Constitution in Ireland from which powers derive will make adherence to English precedent inappropriate on some occasions.
In constitutional matters, the Irish court will sometimes have regard to decisions of the United States Supreme Court. Decisions of the Australian, Canadian and New Zealand courts are also common.
In a court with multiple judges such as the Supreme Court, the Court of Appear or less commonly the divisional High Court, there may be a number of different judgments by a different judge.
In decisions relating to the validity of post-1937 of the legislation, the constitution requires a single judgment. The same principle applies to an Article 26 reference.
Where different judges give different reasons for the same result, the ratio may be based on the sum of the reasons it found.
Where there are a number of different decisions, it may be necessary to deduce the reason supported by the majority. However, where there are a number of different reasons which are incompatible, it may not be possible to find a single reason.
A comment which is not necessary to the decision is not part of the ratio decidendi. This may of itself be a matter of some contention.
There may be a minority and dissenting judgments where judges interpret the facts differently. They may agree on the law but disagree on the facts as established.
Decisions of UK Courts
In Ireland, decisions of the United Kingdom and other common law courts, are highly persuasive. Decisions of the Courts of appeal in Northern Ireland and England and Wales and decisions of the House of Lords, now the UK Supreme Court would be of very high persuasive authority in relation to many important areas of law, such as contract and tort law. They would not, however, be binding and the influence of the Irish Constitution may tilt the balance away from following the UK approach to some legal issues.
Despite a similar legal heritage, U.S. decisions are very rarely cited and applied in Irish courts. Decisions of judgments in the U.S. are occasionally cited in Constitutional matters. US textbooks have not traditionally circulated in Ireland. US law Libraries are not commonly maintained in Ireland. The US consists of 50 jurisdictions, in addition to the federal jurisdiction.