• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

judges avoid following precedent

Extracts from this document...


Outline how judges can avoid following precedent and discuss the advantages of their doing so. Judges can avoid following precedent is a number of ways. Distinguishing is one way, where the material facts of the case are different from a previous one and then the judge does not have to follow the earlier one. This is seen in Balfour v Balfour (1919), where the husband made a verbal agreement of giving his wife �30 a month, while he was away in Ceylon. However he stopped the payments and Mrs Balfour started legal action. It reached the Court of Appeal and they held that there was no enforceable agreement, as there was no evidence for a legally binding promise. So when the case of Merritt and Merritt (1970) came along, where Mr Merritt and Mrs Merritt signed an agreement that he would pay her a monthly sum. When the mortgage of the house was paid, Mr Merritt refused to hand over the house. ...read more.


In this case a man killed his long term girlfriend after she came home and said she had just slept with another man. This had both been heavy drinking all day and when he picked up the axe to go and chop some wood she said 'You haven't got the guts'. He hit her seven to eight times with the axe. R v G and R (2003) overruled Caldwell completely as the defendant must generally for see the risk to be liable, it was also seen as unfair. The academics had criticised the decision as parliament never intended to create an objective test. Judges can also avoid precedent if they believe the case is outdated and not in line with the modern way of thinking. This is seen in Addie v Dumbreck (1929), which was overruled by the Herrington v British Railways Board (1972). In Addie v Dumbreck (1929) the court ruled that a duty of care was not owed to a trespasser. ...read more.


Advantages of judges being allowed to avoid precedent is certainty. A lawyer can provide a client with reasonable information as they know previous decisions that the judges have given and it makes the law very accessible to people as they know that decisions can't change, although there are some exceptions. The House of Lords' Practice Statement points out how important certainty is. There is also consistency and fairness in the law as it applies to everyone, what ever background they are. The law must be seen to be working consistency and credible. Precision is very important as cases are used as evidence and therefore the law becomes very precise. Flexibility is useful as the Practice Statement can be used by the House of Lords to overrule cases, which allows the law to develop and avoid bad past decisions. It also saves times as if no precedents were created then every case would go to the House of Lords. Lower courts can apply the precedent, which makes the law cheap and saves lengthy the process of litigation. ?? ?? ?? ?? Claire Thomas 5th February 2008 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Sources of Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Here's what a teacher thought of this essay

3 star(s)

A generally accurate account of some methods of judges avoiding precedent. However more could be made of the 1966 Practice Statement and the powers of the Court of Appeal. There is one advantage discussed.
Rating: ***

Marked by teacher Nick Price 06/06/2013

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Sources of Law essays

  1. Marked by a teacher

    Common Law and Equity

    5 star(s)

    In total there are 20 maxims, but the four main ones are: 1. one who comes to equity must come with clean hands; an example of this type of case is D&C Builders v.

  2. Marked by a teacher


    4 star(s)

    Decisions of court in other countries ...especially where the same idea of common law are used, commonwealth countries e.g. Australia McLoughin v O'Brian (1983) The extract from Peake J in Mirehouse v Kennel 1883 means that our Common Law systems function is applying new precedents and laws for new circumstances

  1. Marked by a teacher

    the english legal system unit1 assignment4

    4 star(s)

    In respect to possible claims against a solicitor for negligence all solicitors are obliged to take out a professional indemnity insurance policy. There is also a necessary requirement to pay into the Law Society's Compensation Fund which was set up to repay the Clients of Solicitors who have been fraudulent or dishonest.

  2. Marked by a teacher

    Common Law and Equity - its history and development

    3 star(s)

    The builders desperately needed the money so they accepted the money due to financial problems Rees also knew about. The decision to accept the money would not normally be binding in the law of contract and afterwards the builders sued Reeds for the rest of the money.

  1. explain judicial precedent

    If judicial precedent id to be effective, judges need information on previous relevant cases. They can find this from the council of law reporting, reports of cases published by private companies, LEXIS and the internet. Overruling means that the highest court creates a different legal ruling to one made by previous lower courts.


    There is a requirement (under the Statutory Instruments Act 1946) for statutory instruments to be printed and sold as soon as possible unless they are local, temporary, or sensitive and not yet in operation, and printing would be inexpedient. In R.

  1. Free essay

    How effective are domestic and international legal measures in dealing with human trafficking?

    People who are seeking opportunity and entry to other countries may be picked up by traffickers and misled into thinking that they will be free after being smuggled across the border. In other cases, such as armed conflict and some trafficked humans are captured through slave raiding.

  2. Free essay

    heirachy of civil courts

    Cases where the value of the claim is expected to be �15,000 or less (or, in the case of a personal injury claim, less than �50,000) are usually heard in the county court A county court appeal lies from a district judge to a circuit judge and from circuit judge to a high court judge.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work