Avoiding Precedent

Question 1

How do the supreme courts avoid precedent?

Answer 1

They can remake new laws that help in situations

Question 2

How does the Court of Appeal/High court avoid precedent?

Answer 2

They are generally bound by their past decisions but are always bound by the supreme courts

Question 3

What are the three reasons the Court of Appeal and the High Court can depart from past decisions?

Answer 3

1) Conflicting with past decisions
2) The decision has been overruled by a higher court
3) The decision was made per incuriam (an error)

Question 4

What case links to something being overruled?

Answer 4

R V R, which was a case that went against marital rape

Question 5

What is the difference between overruling and reversing?

Answer 5

Reversing is where the higher courts disagree with a choice of the lower courts and change it

Overruling is where the Higher courts can change a law

Question 6

What case is an example of reversing a case?

Answer 6

Gallick (where they said that girls under the age of 16 should be able to buy contreception without an adults consent as long as they were compatible)

Question 7

What is meant by the term distinguishing?

Answer 7

The difference between two cases

Question 8

What is an example of distinguising in cases?

Answer 8

Merrit V Merrit and Balfour V Balfour where merrits got divorced and then signed a contract whereas the balfours had a verbal agreement when they were married and then got divorced

Question 9

What was the outcome of Young V Bristol Aeroplane?

Answer 9

It set expectations that allow the Court of Appeal to avoid it’s own previous decisions

Question 10

What is meant by binding precedent?

Answer 10

It is precedent that must be followed to a similar cases

Question 11

What is meant by persuasive precedent?

Answer 11

It may influence another court to change their outcome on a case

Question 12

What is meant by original precedent?

Answer 12

It is where there is no existing precedent that applies towards a case.

Question 13

What is an example of original precedent in a case?

Answer 13

Canary Wharf

Question 14

What happened in the Canary Wharf case?

Answer 14

It was a legal dispute between Hunter and Canary Wharf about their television signal which was interrupted due to them building. The court said that they were not liable for interfering with the television signal.

Question 15

What happened in Donoghue V Stevenson?

Answer 15

A woman drank a drink from her friend that contained a snail. She tried to sue the café but since she didn’t buy the drink it didn’t work. But she did sue the manufacturers as they owe a duty of care to customers to ensure that they’re safe.

Question 16

What happened in Daniels V White case?

Answer 16

They received a drink with a dangerous chemical in and using the knowledge from Donoghue V Stevenson, they knew to sue the manufacturers as they knew that they owed a duty of care to customers.

Question 17

What is an example of a practice statement?

Answer 17

Herrington V British Railways and Addie V Dumbreck

Question 18

What happened in Herrington V British Railways and Addie V Dumbreck?

Answer 18

In Herrington V British Railway the board was held liable for injuries to a 6 year old child who had played on the line as they owe a duty of care to trespassers if they are children. This overruled the Addie V Dumbreck case where they had decided that they didn’t owe a duty of care to him as he was a trespasser

Question 19

What were the three reasons that the Court of Appeal can avoid its previous decisions?

Answer 19

1) Conflicting past decisions
2) If a decision was overruled by another case
3) A decision in error

Question 20

What happened in the R V Howe case that helped with R V Gotts?

Answer 20

In R V Howe they decided that duress was not an excuse for murder, and the obiter stated that duress wouldn’t excuse even attempted murder. This was then used in R V Gotts to say that even though the boy was being threatened, it was not an excuse to try and kill his mother.

Question 21

What is an example of overruling in a case?

Answer 21

R V R overruled R V Miller which changed the rules on marital rape.

Question 22

What is an example of reversing?

Answer 22

Gillick V West changed the outcome so that minors could buy contraception if they seemed competent.

Question 23

What are two advantages of precedent?

Answer 23

1) It is fair as every case is treated the same so there is no one treated differently
2) Certainty allows them to know what the outcome of cases is most likely to be before perusing a case.

Question 24

What are three types of persuasive precedent?

Answer 24

1) Decisions of lower courts
2) Decisions of foreign courts
3) Privy council decisions

Question 25

What are two disadvantages of precedent?

Answer 25

1) Precedent is rigid and so could force them to use outdated laws that no longer comply.
2) They are very complex so some people don’t understand them and struggle even though it is meant to be accessible to everyone

Question 26

What is an advantage and a disadvantage of overruling?

Answer 26

ADV
- Can correct outdated precedents to help them to evolve

DIS
- Can lead to uncertainty as the rules may change after the case has been held

Question 27

What is an advantage and a disadvantage of reversing?

Answer 27

ADV
- Promotes fairness as everyone should be punished in a way that they deserve

DIS
- Can create inconsistency as the lower courts are always being changed by the higher courts

Question 28

What is an advantage and a disadvantage of distinguishing?

Answer 28

ADV
- It is flexible so they can adapt easily

DIS
- It is very complex so only some people will be able to see it and understand it