How courts avoid precedent

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  • Created by: pdg16
  • Created on: 20-03-18 17:20
What are the two different types of avoiding precedent?
Distinguishing and Overruling
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What is distinguishing?
Finding facts of the case that are different, so they don't have to apply stare decisis, all courts can use this to avoid precedent
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What is a case example for distinguishing?
Merritt v Merritt 1970 CA, the court did not follow their previous decision in balfour v balfour due to facts of the case not be sufficiently similair
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What is overruling?
Higher courts within the hierachy are not bound by decisions of inferior courts and may avoid precedent by overruling them
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What is a case example of overruling?
Kennedy 2007 HL overruled R v Rogers 2003 CA
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What is one of the 3 exemptions of the general rule for the CA
Previous case decided per incuriam (through lack of care)
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Case example for this
Williams v Fawcett 1985 CA, had no reference to a relevant authority
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What is another one of the 3 exemptions of the general rule for the CA
Previous case had been impliedly overruled by SC or HL
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And another one
2 or more previous conflicting decisions of CA, then may choose which decision to follow
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Case example
CA ignored precedent in R v Wheat to R v Gould where CA said bigamy is not a strict liability offence
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Other cards in this set

Card 2

Front

Finding facts of the case that are different, so they don't have to apply stare decisis, all courts can use this to avoid precedent

Back

What is distinguishing?

Card 3

Front

Merritt v Merritt 1970 CA, the court did not follow their previous decision in balfour v balfour due to facts of the case not be sufficiently similair

Back

Preview of the back of card 3

Card 4

Front

Higher courts within the hierachy are not bound by decisions of inferior courts and may avoid precedent by overruling them

Back

Preview of the back of card 4

Card 5

Front

Kennedy 2007 HL overruled R v Rogers 2003 CA

Back

Preview of the back of card 5
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