UNIT 2 - ELS & CASE LAW

Question 1

What must a proposition be to be binding (precedent)?

Answer 1

1. must be a proposition of law
2. must be from a court that is binding on this one
3. must be the ratio decendi of the case
4. there is no factual distinctions between two cases

Question 2

what are the ways a judge may avoid a precedent ?

Answer 2

1. Overruling - When a principle laid down by a lower court is declared incorrect - not followed by a higher court in a different later case.
2. Departing - A court can depart from an earlier case.
   - Usually occurs where the House of Lords Practice Statement is used, or the Court of Appeal applies one of the exceptions set out in Young v Bristol Aeroplane Co Ltd.
3. Reversing - This occurs where the decision of a court in the same case is altered by a higher court on appeal.