Judicial Precedent

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.