judicial precedent

• two cases of judicial change?

  R v R and ghaidon v godin mendoza
• judicial change is the need to keep up with society’s changing attitudes as the law does not and cannot stand still
• judicial precident is when lower courts have to follow decisions of higher court
• judicial precedent is when a court must follow and apply the law as set out in the decisions of higher courts in previous cases
• stare decisis is when decisions must align with past decisions
• stare decisis case is automatic telephone and electric co ltd v registrar of restrictive trading agreements
• ratio decidendi is a binding element
• ratio decidendi is when the judge gives the reason for their decision
• obiter dictum is a persuasive precedent
• obiter dictum is a judge’s expression of opinion uttered in court or in written judgement
• the ways to avoid judicial precedent

  • departing
  • overrule
  • reverse
  • distinguish
• departing is when in certain circumstances a court can depart from its previous decision as shown in addie v dumbreck which departed into british railway v herrington board
• overruling is when the earlier precedent was made in a lower court, senior judges can overrule that earlier decision

  as seen in the case candler v crane christmas and co overruled in hedley byrne and co ltd v heller and partners ltd
• reversing is used if the decision of a lower court is appealed to a higher one if they feel the lower court has wrongly interpreted

  in the case r v pinochet
• distinguishing is when the judge finds the material cases of the two cases sufficiently different to avoid following the precedent as seen in the case balfour v balfour distinguished in merritt v merritt
• practice statement 1966 allowed supreme courts to depart from its own previous decisions therefore giving them flexibility as shown in pepper v hart
• supreme court and practice statement 1966 case is london tramway v london city council
• the three court of appeal exceptions

  1. where there are two conflicting court of appeal decisions
  2. where a previous decision has been overturned by a later supreme court decision
  3. where the previous decision was per incurium - R v Cooper
• original precedent is a decision on a point of law that has never been decided before as shown in donogue v stephenson
• a persuasive precedent is any precedent that is not binding but may be of interest to the judge as seen in the case Re A
• young v bristol aeroplane stated the court of appeal exceptions
• london tramways v london city council states the house of lords is bound by its own decisions and allows supreme courts to depart from previous decisions