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OPERATION OF PRECEDENT / WAYS TO AVOID IT (DISAPPROVING (Hasan (2005) HL,…
OPERATION OF PRECEDENT / WAYS TO AVOID IT
DISAPPROVING
A judge may disapprove a decision if s/he thinks the precedent is wrong but has to follow it and cannot overrule it.
For example, a lower court can disapprove a higher court’s decision, but it obviously cannot change the decision.
Hasan (2005) HL
In Hasan the H/L disapproved the earlier decision of the C/A in Hudson & Taylor (1971) about the availability of the defence of duress where there was opportunity to go to the police.
FOLLOWING
The basic rule is stare decisis i.e. let the decision stand, so precedent should be followed.
Lower Courts are obliged to follow Higher Courts.
In Miliangos v George Frank Textiles Lord Denning in the Court of Appeal should have followed an earlier decision previously set by the Supreme Court.
DISTINGUISHING
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If the material facts are different the judge can distinguish his case from the previous one and not follow the precedent. It should only happen if it is the material facts that are different
i.e. facts important to the decision - but it can also happen to avoid following an old precedent which may seem inappropriate.
Wilsher 1988 SC
Claimant could not prove that the hospital’s negligence caused a premature baby’s blindness. There were multiple possible causes and the negligence may or may not have contributed, so the claim failed.
OVERRULING
A higher court can overrule a lower one. SC can overrule itself; and CA has exceptions on following itself. The new decision then becomes a precedent.
This can happen in a new case or an appeal. If on appeal then the decision is reversed and the precedent overruled.
Case example of ‘overruling’: Herrington (1972) HL
Child trespasser injured on railway line.An occupier of land owes child trespassers a duty to protect them from injury. The HL overruled its own previous decision made in Addie v Dumbreck 1929