House of Lords used to consider itself completly bound by precedent unless the decision was per incurium.
Creation of the Practice Statement in 1966.
PS allows HoL/Supreme Court to change the law if it is believed the earlier case was wrongly decided, and can refuse an ordinary case 'where it appears right to do so'
Reluctant use.
Conway v Rimmer, Herrington, Miliangos, Pepper v Hart, R v Shivpuri, R v R&G
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Court of Appeal
Both divisions of the Court of Appeal are bound by decision of the ECJ + Supreme Court
Miliangos
Must take into account any judgement or decisions of the ECHR.
Re: Medicaments
One division will not bind the other. Young v Bristol exceptions.
Davis v Johnson, Rickards v Rickards
The criminal division can refuse to follow a past decision of its own if the law has been misapplied or misunderstood.
R v Taylor
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Other ways in which precedent can be avoided
Distinguishing
The judge finds that the material facts of the case he is deciding are sufficently different from the facts of the previous case, so precedant does not apply.
Balfour v Balfour, Merrit v Merrit.
Overruling
Court decided that the legal rule in an earlier case is wrong. Overruling may occur when a higher court overrules the decision made in an earlier case made by a lower court, although some courts can overrule decisions of their own.
Reversing
A court higher in the hierarchy overturns the decision of a lower court on appeal in the same case.
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Advantages of Precedent
Certainty
People know what the law is and how it is likely to be applied. Allows lawyers to advise clients on the outcome of cases.
Consistency and fairness
Similar cases are decided in similar ways.
Precision
Principles of law are set out in actual cases, the law becomes very precise.
Flexibility
Room for the law to change as the supreme court can overrule previous decisions. Ability to distinguish
R v R
Time-Saving
Where a principle has already been established, cases with similar facts are unlikely to go through the lengthly process of litigation.
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Disadvantages of precedent
Rigidity
Lower Courts have to follow the decisions of higher courts, and the CoA has to follow its own past decisions. This can make the law inflexible. So few cases go to the supreme court
Complexity
Not easy to find relevant case law and the difference between the obiter dicta and ration decidendi is often unclear.
Illogical distinctions
Distinguishing can lead to 'hair-splitting' and making the law more complex.
Slowness of growth
Some areas of law are unclear or in need of reform but cannot make a decision unless there is a case before the courts to be decided.
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