Judicial Precedent

Question 1

Name three ways in which judges can avoid awkward precedent.

Answer 1

Overruling, reversing and distinguishing.

Question 2

What is overruling?

Answer 2

A court in a later case states the legal rule decided in an earlier case is wrong. This can be done by a higher court overruling a lower court.

Question 3

Give an example of overruling.

Answer 3

Pepper v Hart 1993 allowed the use of Hansard. This overruled the decision in Davis v Johnson 1979 where it was decided the HofL could not consult Hansard.

Question 4

What is reversing?

Answer 4

This is where a court higher up in the hierarchy overturns a decision from a lower court on appeal in the same case.

Question 5

What is an example of reversing?

Answer 5

HofL reversed decision from CA in Sweet v Parsley 1970.

Question 6

What is distinguishing?

Answer 6

If a judge is able to demonstrate the facts of a case are sufficiently different enough from a previous case to enable him to draw a distinction, he will not have to follow the precedent.

Question 7

What is an example of distinguishing?

Answer 7

Balfour v Balfour 1919 and Merritt v Merritt 1971. Balfour v Balfour verbal contract with no intention of legal relations. Merritt v Merrit written contract allowed judge to not follow precedent in Balfour v Balfour.