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Role of the Courts (3). Ways Judges develop precedent or avoid following an earlier decision.
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Ways Judges develop precedent or avoid following an earlier decision • Judges may not always have to follow a previous precedent and in some cases, may be free to create new precedents. Apart from following a binding precedent, there are four other ways that judges can treat previous decisions. • These are: • Distinguishing • Reversing • Overruling • Disapproving
Distinguishing • Where the facts of a case are sufficiently different from a previous case, the decision in the previous case will not be considered binding. • Provided a judge is satisfied that the facts of a case are sufficiently different that an injustice would result from following an earlier precedent, then distinguishing is considered an appropriate means of avoiding the use of that precedent. • Read case Davies v. Waldron (1989)- pg 200
Reversing • Where a higher court hears a case on appeal and decides that the lower court which had heard the case had wrongly decided the case, it will reverse the decision. • The ratio decidendi of the lower court is no longer valid. It is replaced by the ratio decidendi of the higher court. • Read Queen v. Tomas Klamo pg 201
Overruling • When a superior court decides not to follow an earlier precedent of a lower court in a different case it can overrule the previous precedent. • This means a new case in a higher court creates a new precedent that makes the previous precedent inapplicable. It can do this because it is not bound by precedents created in lower courts. • When a precedent is overruled, the new ratio decidendi from the latest case has the effect of becoming the precedent to be followed in the future.
Disapproving • Courts at the same level are not bound by each other’s decisions. • Where a judge in a court refuses to follow an earlier decision of another judge at the same level, they are said to have disapproved the decision. • In other words, they have demonstrated that their opinion of the law differs from that of the previous judge. • Read the Trigwell case- pg 203
Question Time • Complete questions 1-4, 6-7 and 9 on page 204-205.