Avoiding Precedent

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  • Ways to avoid precedent
    • Distinguishing - judge finds that the material facts of a case are sufficiently different from the previous precedent.
      • E.g  Balfour v Balfour and Merritt v Merritt - Both were about a breach of contract between husband and wife, but in Merritt's case, it was after they had separated, so it was a legally enforceable contract
    • Overruling - the judge decides that the legal rule in an earlier case is wrong, like the Supreme Court to the Court of Appeal.
      • E.g. in Pepper v Hart, the House of Lords overruled Davis v Johnson on the use of Hansard - could now be admitted as evidence before the court when trying to decide what particular words in  an Act mean.
    • Reversing - a higher court departs from the decision of a lower court on appeal.
      • E.g. Gillick v West Norfolk & Wisbeck Area Health Authority (1986) - Lord Fraser refused the declaration it would be unlawful for a doctor to prescribe contraceptives to under 16s without the consent of parents. Therefore this case lead to  change in the law where there's shift from parent to child at sufficient maturity to make decisions on matters concerning the child.
    • Practice Statement - made by Lord Gardiner LC - "The House of Lords is free from its past decisions where it is right to do so, but this should be used sparingly so as toe maintain certainty of the law."
      • This means when a past decision was made per incoriam (in error), for example if relevant law or past decisions have not been looked at. It also means they will depart if that is what is needed for justice.
        • British Railways Board v Herrington - a six year old boy was electrocuted when he wandered on to a live railway line, surrounded by a fence with a gap in it known by the defendant for several months.              Under the existing authority of Addie V Dumbreck, no duty of care was owed to trespassers. The HoL departed from this previous decision using the 1966 practice statement and said the BRB did owe a duty of common humanity to trespassers.
    • Young v Bristol Aeroplane Co. - the Court of Appeal is bound by its own decisions, subject only to the exceptions laid down in this case.
      • - If the decision conflicts with a Supreme Court decision.         - Where its previous decision was made per incurium.          - Where there are two of its own conflicting decisions, then it must choose. (Parmenter, Savage)          - (In the criminal division only) Where the previous decision was wrong and will cause injustice. ( R v Gould - Gould wanted to take back a guilty plea for bigamy as at the time of his second marriage, he reasonably mistakenly believe the decree absolute of his first was dissolved. But according to R v. Wheat this was no defence. His appeal was allowed despite previous precedent.


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