* Avoiding a Binding Precedent

Question 1

What are the four, standard ways that a binding precedent can be avoided ?

Answer 1

-Distinguishing
-Reversing
-Overruling
-‘Per Incuriam’

Question 2

What is meant by “distinguishing”, to avoid a binding precedent ?

What is the case examples of this ?

Answer 2

-A case can be distinguished from the past ruling where the material facts of the new case are significantly different from the earlier case. -The judge must find important differences between the two so a new precedent can be created.

Balfour v Balfour

Wife sued husband for breach of contract, but the court refused to recognise that agreements between married couples carried the intention to be legally bound.

Meritt v Meritt

Here, the court were willing to recognise that a contract existed between married
couples as the parties had separated, and it was likely they intended to be bound by their agreement.

Question 3

What is meant by “reversing”, to avoid a binding precedent ?

What is a case example of this ?

Answer 3

-This applies where a case goes on appeal and a higher court reverses the decision of a lower court.

-For example, the Court of Appeal may disagree with the legalruling of the High court and form a different view of the law. The Court of Appeal court may reverse the decision of the High court.

Sweet v Parsley

Question 4

What is meant by “overruling”, to avoid a binding precedent ?

Answer 4

A higher court, in a later case, states that the legal rule decided in an earlier case from a lower court is wrong.

-Some courts can overrule their own decision, such as the Supreme Court, or Court of Appeal, due to the Practice Statement, and Young v Bristol Aeroplane exeptions

Question 5

What is meant by “Per Incuriam”, to avoid a binding precedent ?

What is a case example of this ?

Answer 5

“Through lack of care”,
-This is when a judge in a previous case has overlooked an important point of law and the decision he made was therefore wrong. In this instance, the decision can be over-ruled.

This is rare though, as judges are often reluctant to say that the judge in the previous case was completely wrong.

Williams v Fawcett

The judge refused to follow a previous decision as it was made in error.

Question 6

Which case in 1998, decided that the House of Lords would be bound by its past decisions ?

Why was this ?

Answer 6

London Street Tramways v London
CC

To ensure certainty

Question 7

What now allows the House of Lords to depart from its previous decisions ?

Why was this changed ?

Answer 7

The Practice Statement (1966)

-The law needed develop and the House of Lords was unable to keep up as it was bound by past decisions - the law could only change if Parliament passed a new Act.
-The Practice Statement was introduced to give the House of Lords the power to change its decisions once again.

Question 8

Which four cases illustrate the use of the practice statement ?

Answer 8

-British Railways Board v Herrington (1972) which over-ruled Addie v Dumbreck (1929).
-R v Shivpuri (1986) which over-ruled the past case of Anderton v Ryan (1985).

Question 9

What was defined in Jones v Sec. State for Social Services (1972), regarding the practice statement ?

Answer 9

Supreme Court needs a good reason, to use the practice statement. Simply because a precedent was wrong, is not a good enough reason for using the Practice Statement.

Question 10

What are some examples of good reasons for over-ruling past precedents, using the practice statement ?

Answer 10

1. Changing social climate
2. Changing economic climate – Miliangos v George Frank Textiles (1976)
3. Justice in cases
4. Development of the law – R v Caldwell (1982)

*In criminal law, the definition of recklessness in the case
of R v Caldwell (1982) was overruled using the Practice Statement in R v R and G (2003).

Question 11

How does the practice statement work ?

How was it put in place ?

Answer 11

Used to justify overuling past decisions - when the Practice Statement is used, the new case becomes the precedent and the decision in the old case is ignored.

The judicial functions of the House of Lords were transferred to the Supreme Court in 2009.
Practice Directions 3/4 and the 2010 case of Austin v Southwark LBC make it clear that the Practice Statement continues to apply in the Supreme Court.

Question 12

What allows the Court of Appeal to depart from its previous decisions ?

Answer 12

The exceptions in Young v Bristol Aeroplane

Question 13

What are the exceptions in Young v Bristol Aeroplane ?

Answer 13

-There are 2 conflicting Court of Appeal
decisions
-A Court of Appeal decision conflicts with a
Supreme Court/House of Lords decision
-The Court of Appeal decision was made per
incuriam (in error)
-If the law is misapplied or misunderstood (Criminal division only)(Rv Gould)

Question 14

What ‘other powers’, does the Court of Appeal have ?

Answer 14

-The Court of Appeal can hear appeals from lower courts.
-They can consider referrals from the Attorney General on points of law and lenient sentences.
-Since the Human Rights Act 1998 if a previous decision conflicts with this act they must ignore the previous case law, so it does not conflict with the ECHR.