persuasive precedent

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  • Created by: Huma
  • Created on: 25-04-13 17:58

Foreign courts


A woman was 9 months pregnant

on religious grounds, her and husband refused to consent to the performance on caesaran section.

Physicians believed was necessary to protect both her and child.

HOC granted permission for this, they decided this by looking at an american case with similiar facts.

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Obiter dicta statements

The SC court in R V HOWE ruled that duress could not be a defence to a charge of murder.

In the same case and obiter statement was made that duress would not be a defence to a charge of attempted murder.

Later, in the case of R V GOTTS, a defendant charged with attempted murder tried to argue that he cud use the defence of duress, the obiter statement from HOWE was followed as persuasive precedent by the COA.

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lower courts

In R V R the SC agreed with and followed the same reasoning of the COA in deciding that  a man coud be guilty of ****** his wife.

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Dissenting judgements


Shares in a company were being sold and the buyer relied on records, which were inaccurate.

As a result the buyer lost out

The buyer brought an action against the accountants for negligently misinterpreting the state of the company

He was unsuccesful as lord denning said should of sued - delivering a dissenting judgement.

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SC held that there cud b liability in english law for negligent mistakes, thereby overuled.

The dissenting judgement of denning in candler was followed in Hedley Byrne.

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Privy Council Decisions

This court is not part of the hierachy, so its decisions are not binding. However most of its judges are also members of the SC, so their judgements are treated with respect and often followed.

A court of 5 judges was gathered by the Lord chief justice and they decided that when there are such conflicting precedents (Jersey and James) then the privy council could be followed.

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Jersy v holley and james v karimi

In jersey v holley the privy council decided that the decision made by the SC in R v (james) smith was actually wrong and they decided not to follow it.

Later the case of R v James and Karimi came before the COA. They had to decide whether to follow the SC decision or whether to follow the privy council's decision.

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Distinguish (any courts)

This is where the facts of the precedent and the facts of the case before the court are not the same or similiar.

The judge has to find a minute difference about two cases where the courts have found differences between them so as to avoid applying the precedent.

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Balfour v Balfour

husband had worked in india, and agreed to pay his wife £30 a week, he eventually stopped paying her as a resullt the wife tried to sue him.

The presumption that there is no contract in the " domestic agreement"  - no legal intent therefore could not sue him.



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Merritt v Merritt

husband and wife legally seperated, the husband agreed to give the house to his wife only if she met the mortgage payments.

court decided there was a legally binding contract, wife was entitled to the house.

This case was distinguished from balfour because the agreement was made after the couple had been seperated. 

In balfour, the agreement had been made at an ambical time.

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This only applies when a case goes on appeal - so it can only be used by the SC or COA.

The COA/SC changes the decisions made by lower court by applying a different precedent.

Reversing does not cancel out the precedent.

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This is where the judge decided to replace an old precedent forever with a completely new one.

Whether or not this is possible depends upon the hierachy.

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Per incurriam (any courts)

This is when a judge in a previous case has over looked an important point of law and the decision he made was therefore wrong.

Judges are often reluctant to say tht the judge in the previous case was completely wrong.

In williams v Fawcett the judge refused to follow the a previous decision as it was made in error.

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