1_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.
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.

Resource summary

	Created by beth.clough over 8 years ago

	Copied by personal.sapch over 8 years ago