Judicial Precedent Analysis

Stare decisis is Latin for “to stand by things decided.” Stare decisis is the doctrine of judicial precedent. This doctrine is a decision of the court used as a source for future decision making by which precedents are authoritative and binding and must be followed. Hazel Genn (2015) proffers that “the doctrine of judicial precedent is fundamental to the operation of common law, in practice, it means that a judge deciding a case will look for precedent – a decision in an earlier similar case -…” One of the earliest statements on the rationale underpinning this doctrine was made by Parke J in Mirehouse v Rennell (1833) when he stated:

"Our common law system consists in the applying to new combinations of circumstances those rules of law

These can be in two distinct ways, a binding or persuasive precedent. A binding precedent in the common law system requires a court to follow a previous decision of that court or a higher court in the jurisdiction. The current decision must involve issues and key facts similar to those involved in the previous decision. A court can circumvent a precedent, which would otherwise be binding, by distinguishing it on the facts or on the legal principle

Constance died intestate in 1974 and his wife as administratrix of his estate closed the account and claimed the sums contained in the account formed part of his estate. The Claimant argued that the sums contained in the account were held in trust for the benefit of her and Mr. Constance jointly. Therefore, she was entitled to 50% of the funds in the account.

Material Facts The Court of Appeal held the following facts as material in Paul v Constance:

I. The Claimant and Mr. Constance lived together with all appearance as man and wife up to the date of Mr. Constance’s death. (para C)

II. The Claimant and Mr. Constance discussed what to do with the money which he’d received from his settlement and decided that it should go into a bank account.

III. The Claimant and Mr. Constance discussed with the bank manager the different types of account that they could open. (para f)

IV. Only after it was revealed that the Claimant and Mr. Constance were not married that an account solely in Mr. Constance’s name was decided upon by both parties. (para g)

V. Mr. Constance’s inquiry about the claimant’s access to the account.

VI. The Claimant and Mr. Constance’s joint withdrawal from and deposit to the