Judicial Precedent

How to Avoid Precedent...
1. Distinguishing
  1. If the current case is different from the past, then it doesn't have to be followed.
  2. Merritt v Merritt (1971) distinguished Balfour v Balfour (1919)
2. Overruling
  1. A higher court doesn't have to follow a past case from a lower court or itself.
  2. Hedley Byrne v Heller and Partners (1964) overruled Candler v Crane Christmas & Co. (1951)
  3. The Practice Statement 1966 allows the Supreme Court to depart from its own previous decisions when it appears right to do so.
3. Reversing
  1. A higher court does not follow precedent of a lower court and the original decision is reversed.
  2. Fitzpatrick v Sterling Housing Association (2000)
4. Disapproving
  1. If a judge disagrees with a previous case, then they don't have to follow it.
Court of Appeal
1. In Young Bristol Aeroplane Co. Ltd (1944), the CA held that it was bound to its own previous decisions subject to the following 3 exceptions:
  1. 1) Where the previous decision conflicts with a later HL decision, then the CA must follow the HL decision.
  2. 2) Where there are 2 conflicting previous CA decisions then the CA must choose which one to reject.
  3. 3) If the previous decision was made per incuriam then it will lose its binding force.
Advantages of Avoiding Precedent
1. Potential for Growth - Gives an opportunity for judges to modernise and develop the law when neccessary.
2. Unfair Laws can be Replaced - Allows unfair laws to be abandoned and replaced with more appropriate decisions.
Disadvantages of Avoiding Precedent
1. Retrospective Law Making - Changing the law is unjust because the precedent that is set applies to events that have already happened.
2. Undemocratic - Judges who are not elected by the general public can chose to avoid precedent when they choose to do so.

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Judicial Precedent

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	Created by beth.clough about 11 years ago