法則 Ep 6

Here's another Law post :D It was written on the 21st of February but he returned this also just recently, so that's why it's up so late -.-

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Question:
Examine the claim that the rules of precedent provide sufficient flexibility for judges at all levels of the hierarchy.

Answer:

The doctrine of judicial precedence has been practiced in England for many centuries and it is a pillar of the English legal system. This doctrine operates when judges dealing with a current case with similar facts of a previous case shall apply the same law applied in the previous case. Different levels of court within the hierarchy apply different rules of departing from their own precedence.

For civil cases, the courts involved are the European Court of Justice, the Supreme Court, the Court of Appeal, the Divisional Courts, the High Court, the Crown Court, the County Court and the Magistrates’ Court. These courts are further divided into two categories; appellate courts and courts of first instance.

Appellate courts involve the European Court of Justice, the Supreme Court, the Court of Appeal and the Divisional Courts. The Courts of first instance include the High Court, the Crown Court, the County Court, and the Magistrates’ Court. Each court is bound by all previous precedents as well as higher courts except in the case of inferior courts like the Crown Court, County Court and Magistrates’ Court.

Despite the fact that courts are bound by previous precedents and higher courts, there are claims stating that the rules of precedent provide sufficient flexibility for judges at all levels of the hierarchy. The only courts which do not have this flexibility are the inferior courts.

One method of departing is distinguishing. This allows a judge to ignore a past decision which he would otherwise have to follow. For this to be applied, a judge has to draw a distinction between the previous precedent and the present case. One example would be the Balfour v Balfour (1919) and the Merritt v Merritt (1971). Both cases involved a wife claiming her husband had committed a breach in contract. In the Balfour case, the claim did not succeed because no legal relations were intended – it was a domestic arrangement between a man and his spouse so there was no legally binding contract. This made it significantly different from the Merritt case because the agreement was made after the husband and wife had separated. Also, there was proof of the agreement in writing. Therefore, the claim succeeded.

There is also the case overruling, where a court in a later case states that the legal rule decided in the previous case is wrong. It may occur when a higher court overrules a decision made a by a lower court. For example, when the European Court of Justice overrules a decision made by the Supreme Court. It can also occur when a court overrules a past decision it has made or when the Supreme Court used its power under the Practice Statement to overrule its past decision.

The Practice Statement states that ‘their Lordships recognize that the rigid adherence may lead to injustice in a particular case and unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.’ Although there is some reluctance on the Supreme Courts’ part, the Practice Statement undeniably provides some form of flexibility to the court. Some cases where the Practice Statement was used are the Miliangos v George Frank (Textiles) Ltd (1976), Anns v Merton London Borough (1977), and Pepper v Hart (1993).

Lastly, there is the reversing method, which allows courts higher up in the hierarchy to overturn the decisions of lower courts on appeal in the same case. For example, if the Court of Appeal disagrees with the legal ruling of the high Court, they may reverse the decision. This is most likely to happen if the higher court comes to a different view of the law than the one made by the lower court.

In light of the above arguments, there is truth in the claim that the rules of precedent provide sufficient flexibility for judges at all levels of the hierarchy.

Marks: 19/25

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As usual, I don't know where the other 6 marks went to, but I'm way too pissed to be asking my lecturer why.

That's about it, then. 

CIAO!!

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