Flexibility of Precedent (FORD)

HideShow resource information
  • Created by: es_103
  • Created on: 02-05-16 10:44

Flexibility of Precedent (FORD)

Judges can employ a number of methods of handling ratios

1 of 5

(F)ollowing

  • apply the same legal principle from an ealier case to a present case as material facts were the same
  • legal principle in earlier case came from court higher up in hierarchy or came from the same court
2 of 5

(O)verruling

  • A court can overturn decisions if a lower court in the same case
    e.g. CA could overrule decision made in the high court
  • occur if they decide they did not correctly apply the law and the ratio decidendi is no longer desirable
3 of 5

(R)eversing

  • A higher court can overturn decision of a lower court in the same case
    e.g. a decision by the CA could be reversed if the losing party successfully appealied against the CA's decision to the Supreme Court
  • For example - R v Kingston (1994)
    D drugged by blackmailers and lured into abusing a 15 year old boy

    conviction to indecent assault overturned by CA due to involuntary intoxication
    HoL reinstated a guilty verdict
    -still capable of forming the mens rea of the offence

4 of 5

(D)istinguishing

  • allows judge to avoid the otherwise binding precent
  • Judges determine that the material facts of one case is significantly different to the earlier case and therefore the courts do not have to follow the binding precedent
  • Judge does not need to follow previous decision as they 'distinguished' the cases

e.g    Balfour v Balfour (1919)
         -Wife's claim against her husband for a breach of contract failed as there was no intention to
         create legal relations; merely a domestic arrangement no legally binding contract

however

         Merritt v Merritt (1971)
         -Wife succeeded against husband for a breach of contract as although it involved a husband
         and wife
        - the court held that the agreement was made after they'd separated and was in writing
         -this distinguished the case from Balfour v Balfour

5 of 5

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Judicial precedent resources »