Judicial Precedent Flashcards
What is distinguishing with cases?
Distinguishing is where the judge finds that the material facts of a case are sufficiently different therefore he cannot make a distinction.
Balfour v Balfour - social and domestic agreement
Merrit v Merrit - legal aid (successful)
Explain how the Supreme Court avoids precedent.
The Supreme Court uses the Practice Statement to avoid precedent.
First used in the case:
Addie v Dumbreck - duty of care owed to a child trespasser
Herrington v British Railway board - social and domestic conditions have changed so should law
What is disapproving?
Disapproving is when a later case states that the decision made in an earlier case is wrong on a point of law.
Case:
R v Hudson and Taylor - defence of duress was available even though it wasn’t immediate.
R v Hassan - defence of duress was said to be immediate.
What is reversing with cases?
Reversing is when a higher court overrules the decision of a lower court.
Cases:
R v Kingston - held that involuntary intoxication is not duress unless it stops mens rea from being formed.
How does the Court of Appeal avoid precedent?
Young v Bristol Aeroplane - per incuriam, conflicts with SC, or two conflicting decisions in the same court.
Willam v Fawcett - Made in Error
Rickard v Rickard
What is overruling with cases?
This is where a court in a later case states that the legal ruling in an earlier case is wrong.
Case:
R v Shivpuri overruled R v Anderton and Ryan.
Pepper v Hart overruled Davis v Johnson on the use of Handsard.
Give 3 advantages of Judicial Precedent.
Certainty - courts follow past decisions people know what the law is and how likely it is for it to be applied to their case - advise clients etc
Consistency and fairness - it is seen as just and fair for similar cases to be decided in a similar way
Flexibility- there is room for the law to change; can use practice statement to overrule
Precision- as principles of law are set out in actual cases, the law becomes very precise; it is well illustrated and gradually builds up through the different variations of facts in the cases that come before the courts.
Time Saving - where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation.
Give disadvantages of Judicial Precedent.
Complexity - there are so many cases, it is hard to find relevant law and distinguish ratings from obiter
Illogical distinctions - distinguishing can lead to hair splitting so some areas become very complicated
Slowness of growth - some areas of law are unclear and in need of reform but can’t be done unless a new case comes a long
Rigidity - lower courts can’t avoid precedent as they are bound to follow the higher courts, and very few cases go to the more high courts.
