1A.4.5 Avoiding precedent

Question 1

What is meant by ‘distinguishing’?

Answer 1

The judge can differentiate between the facts of cases, so that he doesn’t have to follow a certain precedent

Question 2

What is an example of distinguishing?

Answer 2

Balfour v Balfour (1919)

• The CA decided that an agreement between a husband and wife, saying that he pays her £30 a month, isn’t legally enforceable
• This was distinguished in Merritt v Merritt (1971)
• Husband said he would sign house over to his wife is she paid the mortgage but he then refused, relying on Balfour v Balfour
• Due to the couple being separated, they were able to distinguish

Question 3

What is meant by ‘overruling’?

Answer 3

The procedure whereby a court higher up in the hierarchy set aside a legal ruling established in a previous case

Question 4

What is an example where overruling can be seen?

Answer 4

BRB v Herrington

- HOL used the 1966 practice statement to overrule a decision made in Addie v Dubreck

Question 5

What is disapproving?

Answer 5

Allows a departure from precedent in a future case. The judge makes it clear they think the precedent is wrong. The disapproving comments are persuasive in future cases.