• 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...

Introduction

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.

Middle

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 Judges can also avoid precedent if they believe the case is outdated and not in line with the modern way of thinking.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.

Conclusion

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)

Summary
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

    the english legal system unit1 assignment4

    4 star(s)

    where it was held that this immunity did not extend to work outside court e.g. preparation, advice. This has now changed, however, and the House of Lords abolished advocates immunity from negligence, as illustrated in (Arthur J.S. Hall & Co.

  1. Marked by a teacher

    AS LAW -JUDICIAL PRECEDENT

    4 star(s)

    They can come from 1) Courts lower in the hierarchy e.g. R v R (1991) In this case the law lords followed the same reasoning as the Court of Appeal in deciding that a man could be guilty of raping his wife. 1) Privy Council decisions.

  2. Customer Service Legislation

    also granted to UK consumers following this EU base set of regulations: * Consumers will be entitled to their legal rights wherever they buy goods within the EU.

  1. Free essay

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

    The vast resources needed to ensure that the officers are able to properly enforce anti-trafficking laws are limited or unavailable in most states. However, one of the goals of the UN is to help build awareness of the issue and provide technical assistance.

  2. Judicial Precedent

    The Court of Appeal has two divisions, the civil division and the criminal division. It binds all the lower courts and is usually bound by its own previous decisions. Within the civil division it can take advantage of any of the circumstances laid down in Young v Bristol Aeroplane where

  1. Why was the Apprenticeship system brought to an end in 1838 in the British ...

    They became the sole administrators in minor disputes between employers and apprentices. Whilst the concept of the stipendiary magistracy was sensible and uncomplicated, in practise it did not work as it was supposed to. The British government was responsible for the mismanagement of the system and for a callous and niggardly treatment of the magistrates.

  2. The Nature of Law in Society

    Criminal laws are passed in order to ensure that every citizen knows the boundaries of acceptable conduct. For example it is a crime to break into a home because the act not only violates the privacy and safety of the home's occupants but it also shatters the collective sense that we are secure in our own homes.

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