Judicial Precedent
Methods of Avoiding Judicial
Precedent
Lesson Objectives
• I will be able to define the terms ‘overruling,
‘reversing’, ‘distinguishing’ and disapproving’
precedent
• I will be able to identify and explain cases
illustrating those terms
Distinguishing
• This is the main device used by judges in all courts for
avoiding precedent.
• No two cases are the same so judges can regard the
facts of the case as different.
• This means they would not be bound by the existing
precedent and creates a second binding precedent.
• The previous precedent remains binding in cases of
similar fact.
Balfour v Balfour and Merritt v Merritt
• B v B (1919) – the Court of Appeal decided
than an agreement made between a husband
and wife for him to pay her £30 a month was
not a legally binding agreement that could be
enforced by the courts – there was a principle
that unless otherwise stated, agreements
between husband and wife are not intended
to be legally binding. The wife failed in her
claim
• M v M (1971) – a husband and wife had
separated and he agreed that he would sign
over the matrimonial home if she continued
to pay the mortgage. She did but he refused
to sign it over. He relied on B v B, claiming that
their agreement was not legally binding. The
court distinguished B v B and disagreed with is
argument stating that because they had
already separated they had intended to create
a legally binding contract. This was a new and
distinct precedent, which now exists alongside
B v B.
Evans v Triplex Safety Glass Ltd (1936)
distinguishing Donoghue v Stevenson (1932)
• E v T – claimant sued car manufacturer for
shattered car windscreen. The court
distinguished D v S and di not hold the
manufacturer liable.
• In D v S there was no chance for anybody to
tamper with the product before it reached the
customer, unlike in E v T.
Overruling
• This is when a higher court does not follow a
precedent set in a previous case, either by a
lower court or by itself.
• An example is the House of Lords in Hedley Byrne
v Heller and Partners (1964) overruling the Court
of Appeal in Candler v Crane Christmas (1951)
• They held that there can be liability for making a
negligent mis-statement.
Reversing
• This is similar to overruling, but occurs when a higher court
does not follow a precedent set by a lower court in the same
case.
• It is where an appeal would reach the opposite decision to that
of a lower court.
• Fitzpatrick v Sterling House Association Ltd (2000) – CoA
refused to allow the homosexual partner of the deceased
tenant to take over tenancy as he could not be described as
family required under the Rent Act 1977
• The HoL reversed the decision and held that he could on the
principle that a same-sex partner could prove the familial link
as required by he legislation.
Disapproving
• Not a method of avoiding precedent but a
mechanism which facilitates a departure from
precedent in a future case.
• When a judge disapproves of a precedent he/she
makes clear that they believe it is wrong.
• These disapproving comments are persuasive and
may be followed by judges in future cases.
• Anns v Merton London Borough Council
(1978) – ratio decidendi of the HoL was that
purchasers of defective buildings could
recover compensation from local authorities
when the defects were due to negligent
inspections by the authority during
construction
• Murphy v Brentwood District Council (1990) –
This case overruled the decision as the original
decision was heavily disapproved.
Other methods
• The exceptions in Young v Bristol Aeroplane
Co. (1944)
• The Practice Statement 1966