Role of the Courts (3)

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:1. Distinguishing2. Reversing3. Overruling4. Disapproving

Ways Judges develop precedent or avoid following an earlier

decision

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

Distinguishing

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The ratio decidendi of the lower court is no longer valid.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

Reversing

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.

Overruling

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

Disapproving

Complete questions 1-4, 6-7 and 9 on page 204-205.

Question Time