WHEN YOU CAN AVOID PRECEDENT?

5 REASONS FOR AVOIDING PRECEDENCE

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  • Created by: kal b
  • Created on: 29-12-10 22:16

5 GROUNDS FOR AVOIDING PRECEDENT

1 Distinguishing     Finding differences in the FACTS of the new case from the earlier case. Balfour v. Balfour married couple Merritt v. Merritt seperated           

 

5 Confliction             with a Statute of the European Court of Justice or Human rights.In Re Medicaments, the Court of Appeal avoided following a precedent set by the House of Lords in R v. Gough because it conflicted with a later decision by the European Court of Human Rights.

2 Over-Ruling          a lower courts previous Precedent - in a different case (2 cases) Davis v. Johnson was overruled by Pepper v. Hart on the use of Hansard.

3 Reversing              a previous Precedent - in the SAME case only (1 case) Re Cannings was found guilty of murder, however she appealed and was found not guilty - the precedent therefore no longer applies.

4 Per Incuriam          If a precedent was made by mistake - was a relevant Act followed? Rakhit v. Carty avoided following a precedent as the earlier case didn't use the Rent Act 1977.

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KEY TERMS

1 STARE DECISIS            To let the decision stand

2 RATIO DECIDENDI         Reason for decision sets out legal principles used by the judge when ruling

3 BINDING PRECEDENT   Ratio

4 OBITER DICTA               Things said ''by the way'' addition info given in the judgement is persuasive precedent.

5 PERSUASIVE PRECEDENT eg Obiter dicta, decisions from lower courts, decisions from non English courts, Statement made by a dissenting judge.

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