Judicial precedent rests on the hierarchy of courts

Judicial precedent are past decisions to help them decide similar cases where the law and facts are alike. The doctrine of judicial precedent rests on the hierarchy of courts to operate and stare decisis forming the basis, meaning to stand by previous decisions and cases treated alike to achieve certainty and consistency leading to fairness.

The Court of Appeal is an intermediate appellate court and The Supreme Court /House of Lords being the highest appeal court. The Court of Appeal has to follow decisions of the House of Lords even if it thinks the House of Lords is wrong.

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The Court` of Appeal is generally bound by its own previous decision unless the exceptions in 1Young v Bristol Aeroplane are applied (a) where its own previous decision conflicts the Court of Appeal must decide which to follow and which to reject,(b) the Court of Appeal must refuse to follow a decision of its own which cannot stand with a decision of House of Lords even though its decision has not been expressly overruled by the House of Lords and (c) the Court of Appeal need not follow a decision of its own if satisfied that it was given per incuriam, which means in ignorance or neglect of a relevant statutory provision or binding decision of the House of Lords or the Court of Appeal.

Decisions of House of Lords/Supreme Court binds all the Courts beneath it in the hierarchy of Courts and reference can be made to cases prior to 1 October 2009 are retained for accuracy. The current case of 2Austin v Southwark London made clear the Practise Statement of 1996 until such time the House of Lords was bound by its own previous decisions.3 The Practise Statement had the effect of freeing the House of Lords from earlier rules laid down in 4London Street Tramsway case that the house was bound by its own decision. It’s in the public interest for there to be certainty in the law and fairness to litigation and it clearly sets out the reason for the doctrine of precedent for this to be achieved. This sets out that in future the House of Lords would normally treat its former decisions as binding but could depart if the precedent appeared too rigid which may lead to injustice.

Court of Appeal believed it should free itself from being bound by its previous decision in the same way as the House of Lords had done. However, the House of Lords has clearly shown in later cases that it does not approve of the Court of Appeal being able to depart from its previous decisions or reviewing House of Lords’ decisions, in 5Farley v Skinner it was evident that the Court of Appeal’s opinion that inconsistency in the case law to a deciding court later was reversed by the House of Lords.

The Court of Appeal cannot stand or conflict with a Supreme Court/House of Lords decision of an earlier case which was confirmed in 6Iqbal v Whipps with an exception if a Court of Appeal is faced with of its own previous decision being inconsistent with an earlier decision of the Supreme Court/House of Lords that was given per incuriam. The later Court of Appeal is bound by the earlier Court of Appeal decision even if it wrongly misinterpreted by the Supreme Court/House of Lords decision, this disagreement of decision are insufficient grounds for not following the precedent.

In 7Williams v Roffey Brothers conflicting decisions of Court of Appeal and Supreme Court/House of Lords of performance on existing contractual duty could be good consideration resulting a practical benefit been obtained and contrasting with the previous House of Lords decision from 8Foakes v Beer that part payment of debt is not good consideration.

In concluding the only cases which decision should be given per incuriam are those given in ignorance or forgetfulness of some inconsistency statutory provision or authority binding on the courts and such cases the decision and reasoning which are based on are wrong in9Duke if the decision on the binding precedent are given per incuriam. The Court of Appeal should be free but not obliged to depart from its previous decision.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

Books

 

Wilson, Rutherford, Storey, Wortley. English Legal System.Oxford University Press,2016

 

Greenberg, Daniel. Jowitt’s Dictionary of English Law.London: Sweet and Maxwell, 2015.

 

Zander, Michael. “Judical Precedent ” The Law Making, 2016.

Cases

Young and Bristol Aeroplane Co Ltd 1944 KB 718.

 

Austin v Southwalk London Borough Council 2010 UKSC 28

 

Practise Statement (Judicial Precedent)1966 1WLR 1234.

 

London Tramways Co.Ltd v London County Council 1898 AC 375

 

Farley v Skinner2000 PNLR 441

 

Iqbal v Whipps Cross University NHS Trust 2007 EWCA Civ 1190.

 

Williams v Roffey Brothers & Nicholls(Contractors)Ltd19911 QB 1

 

Foakes v Beer 1884 9 App Cas 605

 

Duke v Reliance System Ltd 1998 QB 108

 

Internet Sources

 

“Log In to Westlaw UK.” Westlaw UK Log In. Web 12 December 2017.

 

 

http://studylib.net/doc/5431363/powerpoint—dr-pet er-jepson – Judical precedent.

 

 

https://www.newlawjournal.co.uk/content/law-reports-67

 

 

http://www.markedbyteachers

 

 

lawmentor.co.uk

 

 

https://www.uniassignment.com

Part B

 

1.      The claim was first heard in the Employment Tribunal.

 

2.      The court of first instance decided that she was not an employee and she did not have the requisite period of continuous employment, that the claimant had no relevant mutuality of obligation present.

 

3.      HH McMullen QC (sitting alone)

 

4.      Nadine  Quashie – Appellant  and  Stringfellow Restaurant –Respondent , 

 

 

 

5.      The EAT considered that it be relevant that Nadine Quashie attend meeting Thursday’s because of risk of fine is she failed to do so, it clearly indicates an umbrella contract in existence. It concluded that there was a continuing obligations in existence in the gaps where there was no rota in place.

 

6.      The EAT decided that Isabella was an employee and she had the necessary continuity of employment it concluded that there were mutual obligations in that she had to turn up for work according to the rota she had been given, and when she did the employer had to give her the chance to work. HH Judge McMullen QC found that the Tribunal made an error when they held that there was no contract of service existed.

 

 

7.      LJ Elias , LJ Pitchford and LJ Ward

 

8.      21 December 2012

 

9.      Mr Thomas Linden QC / Messrs Davenport Lyons (Solicitors) for Appellant.

Mr John Hendy QC and Ms Catherine Rayner / Bindmans LLP (Solicitors) Respondent.

 

10.  Appellant was seeking to restore the decision of Employment Tribunal in the Court of Appeal and to prove there was no contract of employment.

 

11.  It’s important to distinguish the forms of working relationship because some rights including the rights to claim unfair dismissal are conferred on employees whereas others upon workers as all employees are workers but not all workers are employees.

 

 

12.  This will likely to arise in situations where an individual works for an employer either on a casual basis or ad hoc, it’s important to distinguish that there is a continuation of a contract and if any gaps in between the period of employment.

 

13.  The Court of Appeal did agree with the Employment Tribunal’s analysis regarding mutual of obligations and that it was entitled to decide that there wasn’t a relationship of employee and employer. The EAT were in fact using the concept of mutuality of obligation in two divergent ways as the concept was used in such a way that The Tribunal was concentrating on the nature of the obligations and concluded that there wasn’t mutual obligations of a sort which fixed the contract into the employment capacity.

 

 

14.  Yes someone can be classed as an employee even if there is no mutuality of obligation, because there is no reason why a worker should not be employed under a contract of employment even if of short duration referencing Ready Mixed Concrete case. The employee need to prove continuity even when periods of no contract, there ought to be at least an ” irreducible minimum of obligation” either express or implied which continue during the breaks in work arrangements.

 

15.  The material facts of the Court of Appeal are the facts that have a direct influence on the decision being made by the courts.

 

i)                    Stringfellow did not have to pay Nadine but was paid in Heavenly Money by customers and the Tribunal’s conclusion from the evidence that the employer was not under any obligation to pay the dancer, she discussed her own fees with the clients, took the risk that on any night she would potentially earn nothing..

 

 

ii)                  The Court of Appeal held that the key findings of the Tribunal were that Nadine was never paid, in fact she paid the club to be able to dance at their venues. She would often go to work and not earn anything because she would not have earned enough Heavenly Money vouchers.

 

iii)                Stringfellow had no obligation to provide Ms Nadine with work and was not obliged to provide work or pay her for any work done. While she worked on a rota the club would provide her a facility for dancing and her earnings came from the customers. In return she had to comply with specific rules required to enable Stringfellow to maintain their licences.

 

 

      

 

16.  The grounds of appeal in the Court of Appeal were that the EAT wrongly concluded the Employment Tribunal findings based on mutuality of obligation, firstly considering whether there was a contract in place during periods of not working on the rota. Secondly the EAT was not entitled to interfere that the employer was not obliged to pay any remuneration to the claimant which is entirely inconsistent with the evidence before the Tribunal.

Finally the Tribunal was entitled to find there was no duty on the appellant to provide opportunity to dance during here presents and no continuity obligation can be established an umbrella contract in existence between rotas.

 

 

 

 

17.  Nadine Quashie could bring a claim for unfair dismissal according to the Employment Appeal Tribunal because it found that there some mutual obligation between employer and employee as such the employer was obliged to provide work and there were obligations to pay wage regardless of source, the employer failed to properly analyse the relationship during the periods of gaps in rota as there were continuing of employment and there being an umbrella contract due to risk of fines is she didn’t attend meeting on Thursdays.

 

18.  The Court of Appeal found for the Appellant for the reasons that they believed the ET was fully entitled to conclude that there was no relationship of employee and employ. The reasoning of the Tribunal in respect to mutuality of obligations was accepted but not entirely. The appeal was uphold, and that the Tribunal’s decision that there was no contract of employment was restored.

 

 

19.  The case of Cheng Yuen v Royal Hong Kong Golf Club was useful because it identified that the Employment Tribunal saw an analogy that could be a very justifiable one when the Court of Appeal examined that the club did not actually employ the dancers to dance; the claimant paid them to be given an opportunity to earn some money by dancing for the clients.

 

20.  Ratio decidendi means the reason behind the decision and be defined as the point in a case which concludes the judgment. Isabella did not receive a formal copy of the contract of employment but was bound by the terms and the Employment Tribunal stated the claimant did not receive. But she did receive a handbook about Cabaret of Angel which contained much of the same information as the house rules and the contract was performed in regards to those terms, regardless whether she had not received the formal document.

If an individual takes on the economic risk and is paid by a third party, they are unlikely to be classed as working under a contract of service and the fact that the dancer took the economic risk establishes an important fact against the contract being a contract of employment she was responsible for paying her own tax and national insurance this decision by the Employment Tribunal on the economic risk was backed up by the fact that the terms of the contract consisted of the dancer accepting that she was indeed self-employed, thus conducted her own affairs did not receive holiday or sick pay.

The Employment Tribunal should not interfere with finding of fact unless the findings were ones which no tribunal would make, the Court of Appeal reinstated the finding of the Tribunal in regards to the claimant not being employed under a contract of employment. An appellate tribunal is only permitted to interfere with the verdict of that tribunal, on the basis that it is satisfied that in its opinion no reasonable tribunal, correctly guiding itself on the relevant question of law, could have reached the decision under appeal.

 

21.

Based on Isabelle employment status and taking into consideration the case of Ready Mix Concrete v Minister of Pensions and National Insurance 1968 1 QB 497 as the fact of this case points to the multi-factorial test reflected in the judgement of McKenna J which analysed various different features of the relationship.

The test adapted and applicable to Isabella for an employer and employee relationship to exist McKenna J summarised the essential elements of a contract of employment, this three elements of service should be fulfilled.

The servant (Isabella) agree that in consideration of a minimum wage or other remuneration, she will provide her own work and skills in the performance of some service to the employer (Ricardo’s Restaurant) and a contract imposing obligation on Isabella to provide work.

Isabella agrees expressly or impliedly, that in performance of that service she will be subject to Ricardo Restaurant’s control in a sufficient degree to make the employer master and bound to follow a specific rota of her shifts every week, and at least 25 hours work, she is also supervised by a senior waitress so some form of control over the employee by the employer with being a contract of service whereby distinguishing these provisions are either contract of sale from one of labour. Based on this test Isabella can be classed as an employee.

 

 

Daniel situation would be similar to the Employment Tribunal decision on Stringfellow v Nadine Quashie case as he does not have the requisite period of continuous employment as defined by section 230 of Employment Rights Act 1996.

In my finding I refer back to the Employment Tribunal facts that there were no mutuality of obligation between Daniel and Ricardo Restaurant Bar as no was no wage/work bargain is present rather Daniel had to pay the Ricardo Restaurant £50 for space.

Daniel could turn down work and work at different establishments making him and independent contractor paid by clients which makes Daniel being self-employed.

There is no mutuality of obligation between Daniel and Ricardo or no degree of control or some form of control over the employee by the employer. Daniel provides his own alcohol to make cocktails and paid directly by customers. Daniel runs the economic risk if he don’t make enough money in sales which is a significant factor against him being an employee.

In summary, Daniel was not paid by Ricardo but was paid by the customer, and according to the facts did not receive any holiday or sick pay, as well as any benefits. All these factors are consistent with the Daniel not being employed for a contract of service.

 

1 Young and Bristol Aeroplane Co Ltd 1944 KB 718.

2 Austin v Southwalk London Borough Council 2010 UKSC 28

3 Practise Statement (Judicial Precedent)1966 1WLR 1234.

4 London Tramways Co.Ltd v London County Council 1898 AC 375

5 Farley v Skinner2000 PNLR 441

6 Iqbal v Whipps Cross University NHS Trust 2007 EWCA Civ 1190.

7 Williams v Roffey Brothers & Nicholls(Contractors)Ltd19911 QB 1

8 Foakes v Beer 1884 9 App Cas 605

9 Duke v Reliance System Ltd 1998 QB 108