Judicial Precedent

beth.clough
Mind Map by beth.clough, updated more than 1 year ago
beth.clough
Created by beth.clough over 6 years ago
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A Level Law (Judicial Precedent) Mind Map on Judicial Precedent, created by beth.clough on 11/13/2013.
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Judicial Precedent
1 How to Avoid Precedent...
1.1 Distinguishing
1.1.1 If the current case is different from the past, then it doesn't have to be followed.
1.1.2 Merritt v Merritt (1971) distinguished Balfour v Balfour (1919)
1.2 Overruling
1.2.1 A higher court doesn't have to follow a past case from a lower court or itself.
1.2.2 Hedley Byrne v Heller and Partners (1964) overruled Candler v Crane Christmas & Co. (1951)
1.2.3 The Practice Statement 1966 allows the Supreme Court to depart from its own previous decisions when it appears right to do so.
1.3 Reversing
1.3.1 A higher court does not follow precedent of a lower court and the original decision is reversed.
1.3.2 Fitzpatrick v Sterling Housing Association (2000)
1.4 Disapproving
1.4.1 If a judge disagrees with a previous case, then they don't have to follow it.
2 Court of Appeal
2.1 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:
2.1.1 1) Where the previous decision conflicts with a later HL decision, then the CA must follow the HL decision.
2.1.2 2) Where there are 2 conflicting previous CA decisions then the CA must choose which one to reject.
2.1.3 3) If the previous decision was made per incuriam then it will lose its binding force.
3 Advantages of Avoiding Precedent
3.1 Potential for Growth - Gives an opportunity for judges to modernise and develop the law when neccessary.
3.2 Unfair Laws can be Replaced - Allows unfair laws to be abandoned and replaced with more appropriate decisions.
4 Disadvantages of Avoiding Precedent
4.1 Retrospective Law Making - Changing the law is unjust because the precedent that is set applies to events that have already happened.
4.2 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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