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Judicial Precedent

beth.clough Law A Level English 5.0Average rating 5.0 out of 5 (3 ratings)

Mind map on judicial precedent: avoiding precedent, Court of Appeal, advantages and disadvantages

Mind map: judicial precedent

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Judicial Precedent

  1. How to Avoid Precedent...

    • Distinguishing
      • If the current case is different from the past, then it doesn't have to be followed.
      • Merritt v Merritt (1971) distinguished Balfour v Balfour (1919)
    • Overruling
      • A higher court doesn't have to follow a past case from a lower court or itself.
      • Hedley Byrne v Heller and Partners (1964) overruled Candler v Crane Christmas & Co. (1951)
      • The Practice Statement 1966 allows the Supreme Court to depart from its own previous decisions when it appears right to do so.
    • Reversing
      • A higher court does not follow precedent of a lower court and the original decision is reversed.
      • Fitzpatrick v Sterling Housing Association (2000)
    • Disapproving
      • If a judge disagrees with a previous case, then they don't have to follow it.
  2. Court of Appeal

    • 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) Where the previous decision conflicts with a later HL decision, then the CA must follow the HL decision.
      • 2) Where there are 2 conflicting previous CA decisions then the CA must choose which one to reject.
      • 3) If the previous decision was made per incuriam then it will lose its binding force.
  3. Advantages of Avoiding Precedent

    • Potential for Growth - Gives an opportunity for judges to modernise and develop the law when neccessary.
    • Unfair Laws can be Replaced - Allows unfair laws to be abandoned and replaced with more appropriate decisions.
  4. Disadvantages of Avoiding Precedent

    • Retrospective Law Making - Changing the law is unjust because the precedent that is set applies to events that have already happened.
    • 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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Description
A Level Law (Judicial Precedent) Mind Map on Judicial Precedent, created by beth.clough on 13/11/2013.
Created by
beth.clough
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Average rating 5.0 out of 5 (3 ratings)

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