Judges face five main difficulties when applying precedent.

Locating the past decision

While cases are recorded and reported, law reports, which come from Commonwealth and state courts, are compiled in annual additions, rather than under topic headings. It is difficult to locate relevant precedents, let alone locate the most recent relevant precedent.

Conflicting precedents

Courts may be faced with more than one relevant precedent and have to decide between the two. The court will not necessarily follow the most recent decision. The judge will take into account the standing of the court, the number of judges, whether the decision was unanimous and whether other courts have followed the precedent.

Dissenting judgments

When more than one judge hears a case, the majority decision forms the precedent. Dissenting judgments can cause issues for future courts. Similarly, a judge may decide the same verdict as the majority of judges, but for a different reason.

Determining the ratio decidendi

Cases are often complex and have large amounts of detail and competing arguments. It, therefore, becomes difficult to determine the exact nature of the arguments and the ratio decidendi.

Conservatism of judges

Judges disagree on the extent to which they should be able to make law. Many judges feel that problems with the law should be remedied by parliament rather than by courts. Even when a court is able to make or change a precedent, it tends to follow what already exists.

See also:

Doctrine of precedent

Rules of precedent

Flexibility of precedent