Judicial Precedent: Avoidance Techniques

There are ways of avoiding precedent that are used by courts to depart from a previous decision depending on the factors

Overruling:

• This is where a court that is higher in the hierarchy departs from a decision that has been made in a lower court
• A good example is BRB v Herrington (1972) , which overruled Addie v Dumbreck (1929) and set a new precedent that a duty of care is owed to a trespasser (whereas before it had been the opposite)

Reversing:

• This is where a higher court departs from the decision made by a lower court on appeal
• A good example is Re Pinochet (1999)
• Pinochet was a Chilean dictator who was convicted for his crimes
• The outcome of the case was reversed because the original judge was a director of amnesty international and so deemed to be biased
• Pinochet was set free because of this

Distinguishing:

• This is where the facts of the case are deemed different enough that the previous case is no longer binding
• Merritt v Merritt (1970) was distinguished from Balfour v Balfour (1919)
• Both cases were about the husbands paying maintenance to their wives
• In BvB, the husband said that he would pay maintenance to his wife. This was held to be unenforceable because it was an oral agreement
• In MvM, there was a written agreement for the husband to maintain the wife. Because it was written down, it was held to be legally enforceable