Date Friday February 11 2022 Judicial Precedent Avoiding

Date: Friday, February 11, 2022 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 1

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 This hypothetical discussion is not binding precedent.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 3

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 6

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 9

2) Overruling • Court higher up the hierarchy sets aside a legal ruling established in a previous case • Practice statement used in Herrington 10

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. 11

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) 12

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 13

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