Date: Friday, 10 April 2015
Judicial Precedent = Avoiding precedent
Lesson Outcomes: Specification:
Define the terms ‘overruling’,
‘distinguishing’,
‘disapproving’ and ‘reversing’
Identify cases illustrating
those terms
Explain cases illustrating
those terms
•The operation of the doctrine: following, overruling, distinguishing and
disapproving.
•Advantages and disadvantages of the doctrine and operation of
precedent.
Starter: Without looking at your notes,
define the terms:
• Ratio decidendi
• Obiter dicta
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Ratio decidendi
Obiter Dicta
= ‘the reason for deciding’ i.e. the legal
decision/principle of a case
= ‘other things said’
•
•
•
•
This is binding precedent and must be
applied (followed) in all other cases in
lower courts that have the same facts or
are looking at the same point of law
This is the only part of the legal decision
that is binding on other cases
Sir Rupert Cross defined this as “any rule
expressly or impliedly treated by the
judge as a necessary step in reaching
his conclusion”
•
•
•
Hypothetical situations considered by
a judge that are not part of the
decision
E.g. in Hill v Baxter the judge talked
about what would have happened if a
swarm of bees had flown into a car
while someone was driving (even
though this had nothing to do with the
case!)
This hypothetical discussion is not
binding precedent.
However, this could be considered
persuasive precedent e.g. if there is
a case in the future where a swarm of
bees flies into a car, they may follow
the hypothetical obiter dicta of Hill v
Baxter!
Introduction
• Supreme Court and the Court of Appeal
can avoid following precedent:
– Supreme Court may use Practice Statement
– Court of Appeal and High Court
• Due to exceptions set out in Young v British
Aeroplane Co (1944)
• There are some additional mechanisms
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The Court of Appeal
• Directly below the Supreme Court & bound by
its decisions
• Two Divisions
– Civil Division
– Criminal Division
• Each Division usually is usually bound by its
own decisions (see exceptions below) but the
two divisions do not bind eachother
Young v Bristol Aeroplane Co Ltd [1944] KB 718 Court of Appeal
Lord Greene MR:
"The Court of Appeal is bound to follow its own decisions and those of courts of co-ordinate
jurisdiction, and the ' full ' court is in the same position in this respect as a division of the court
consisting of three members. The only exceptions to this rule are:—
(1) The court is entitled and bound to decide which of two conflicting decisions of its
own it will follow ;
(2) the court is bound to refuse to follow a decision on its own which, though not expressly
overruled, cannot, in its opinion, stand with a decision of the House of Lords ;
(3) the court is not bound to follow a decision of its own if it is satisfied that the decision was
given per incuriam, e.g., where a statute or a rule having statutory
effect which would have affected the decision was not brought to the attention of the earlier
court.”
If you didn’t agree
with the precedent
of a previous case,
how might you try
to avoid following
it?
1) Distinguishing
• Main device used by judges in all courts to
avoid a binding precedent
• No two cases have the same facts - whn
this is the case the judge is not bound to
follow a precedent
• First case remains precedent for cases
with similar facts
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Case 1
A husband worked overseas and agreed to send maintenance payments to his
wife. At the time of the agreement the couple were happily married. The
relationship later soured and the husband stopped making the payments. The
wife sought to enforce the agreement.
Ratio Decidendi – The agreement was a purely social and domestic agreement
and therefore it was presumed that the parties did not intend to be legally bound.
Case 2
A husband left his wife and went to live with another woman. There was £180 left
owing on the house which was jointly owned by the couple. The husband signed
an agreement whereby he would pay the wife £40 per month to enable her to
meet the mortgage payments and if she paid all the charges in connection with
the mortgage until it was paid off he would transfer his share of the house to her.
When the mortgage was fully paid she brought an action for a declaration that
the house belonged to her.
Balfour v Balfour [1919] 2 KB 571
A husband worked overseas and agreed to send maintenance payments to his wife. At the time of the
agreement the couple were happily married. The relationship later soured and the husband stopped
making the payments. The wife sought to enforce the agreement.
Ratio Decidendi – The agreement was a purely social and domestic agreement and therefore it was
presumed that the parties did not intend to be legally bound.
Merritt v Merritt [1970] 1 WLR 1211 Court of Appeal
A husband left his wife and went to live with another woman. There was £180 left owing on the house
which was jointly owned by the couple. The husband signed an agreement whereby he would pay the
wife £40 per month to enable her to meet the mortgage payments and if she paid all the charges in
connection with the mortgage until it was paid off he would transfer his share of the house to her. When
the mortgage was fully paid she brought an action for a declaration that the house belonged to her.
Ratio Decidendi – The agreement was binding. The Court of Appeal distinguished the case of Balfour
v Balfour on the grounds that the parties were separated. Where spouses have separated it is generally
considered that they do intend to be bound by their agreements. The written agreement signed was
further evidence of an intention to be bound.
Distinguishing
• Also consider R v Brown (1993) and R v
Wilson (1996)
• The ratio in Brown was distinguished in
Wilson because the Wilsons were a
married couple
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2) Overruling
• Court higher up the hierarchy sets aside a
legal ruling established in a previous case
• Practice statement used in Herrington
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British Railways Board v Herrington [1972] AC 877 House of Lords
A six year old boy was electrocuted and suffered severe burns when he wondered from a play park onto
a live railway line. The railway line was surrounded by a fence however, part of the fence had been
pushed down and the gap created had been used frequently as a short cut to the park. The defendant
was aware of the gap in the fence which had been present for several months, but had failed to do
anything about it.
Ratio Decidendi – Under existing authority of Addie v Dumbreck no duty of care was owed to
trespassers. However, the House of Lords departed from their previous decision using the 1966 Practice
Statement and held that the defendant railway company did owe a duty of common humanity to
trespassers.
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3) Disapproving
• Not a method of avoiding precedent
• If judge disapproves of precedent, they
make it clear that they think the precedent
is wrong
• These disapproving statements are
persuasive in future cases
Read R v Hasan (2005)
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4) Reversing
• Court higher up the hierarchy overturns
the decision of a lower court on appeal in
the same case
• E.g. the Court of Appeal may disagree
with the legal ruling of the High Court so
can reverse the decision
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Complete the Test yourself box on page 76