Use Of Precedent

Question 1

What is overruling?

Answer 1

Where Court in later case states that a rule decided in earlier case is wrong and replaces it with new precedent.
Operates through court hierarchy, usually higher court overruled lower court, e.g. SC overruling COA on same point different case.
R v G (2003) SC overruled previous decision in Caldwell (1982) deciding recklessness in criminal law should be judged subjectively

Question 2

What is reversing?

Answer 2

Where a court higher up in hierarchy overturns decision of lower case in appeal of same case. E.g. point of law reached in high court appealed in COA who come to different view of law
E.g. Kingston 1984 COA quashed D for sexual assault by allowing drfense of intoxication, SC revresd it

Question 3

What is distinguishing?

Answer 3

Where facts of case being decided are so different from earlier precedent, judge is not bound to follow. Must be sufficiently different, this creates new precedent (any court can do)
E.g. Merritt v Merritt (1971) different from Balfour v Balfour (1918) as it was made after seperation and was in writing, so sued for breach of contract of house not being transferred

Question 4

What is Supreme Court and practise direction?

Answer 4

Supreme Court generally follows its own previous decisions from state decisis but “when it appears right to do so” they can use Practise Dirextion 3 & 4 to overrule it
E.g. Herrington v British Railways Board (1972)
Child trapspasser injured, SC overruled Addie v Dumsbreck (1929) which said no duty to care for trespassers

Question 5

What are exceptions for following own precedent in COA?

Answer 5

1. Where overruled by SC
2. Where 2 conflicting SC decisions, can choose, e.g. between Spratt and Savage in Paramenter 1991, chose Savage
   If decision is made per incuriam, CA can ignore bad law e.g. Rahkit v Carty (1990) CA ignored earlier case that ignored Rent Act 1977