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Judicial precedent - Coggle Diagram
Judicial precedent
The Practice Statement
The Court of Appeal does not have use of the Practice Statement, although Lord Denning was an advocate of it
Instead the Court of Appeal has a number of conditions for when they can depart from their own precedent (established in Young v Bristol Airplane):
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If the previous decision was made 'per incuriam' - in error - which means the judge did not pay attention to other relevant precedents
Cases
Young v Bristol Airplane
1) Court is entitled and bound to decide which of two conflicting decisions of its own it will follow 2) Court is bound to refuse to follow a decision on it's own which, cannot be overruled; stand with a decision of the House of Lords. 3) Court is not bound to follow decision of it's own if it is satisfied that the decision was given per incuriam (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
Miliangos v George Frank
House of Lords overruled Re United Railways(1961). It had been held that the damages in English civil case could only be awarded in sterling. Miliangos case held that damages can be awarded in the currency of any foreign country specified in the contract
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Balfour v Balfour
Details: Husband worked overseas & had agreed to send maintenance payments to wife. At time of agreement the couple were happily married. Relationship soured and husband stopped making payments.
Decision: Agreement was purely social and domestic agreement and therefore it was presumed that parties did not intend it to be legally binding
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Merritt v Merritt
Details: Husband left wife to live with another woman. The husband and wife owned a house together which had a mortgage. There was £180 left on the mortgage which husband agreed to send money for each month and then hand over his ownership of the house to wife once mortgage paid off. Wife brought declaration of ownership.
Decision: Agreement of house ownership was binding. This case was distinguished from Balfour v Balfour because parties were separated, therefore agreement was intended to be legally binding.
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Types of precedent
Original Precedent: When a precedent hasn't yet been set. Whatever decision a judge comes to on a point of law, will set the precedent for future cases.
If there are no past cases for the judge to base their decisions on, they will look at previous similar cases, with similar rules used. This is known as reasoning by analogy.
Persuasive Precedent - Where the precedent isn't binding on a court, however, the judge may be persuaded that it should be followed.
Binding Precedent - Precedent from an earlier case which must be followed if the precedent was set by a senior court.
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