Outline how judges can avoid following precedent and discuss the advantages of their

doing so.

Judges can avoid following precedent is a number of ways. Distinguishing is one way, where the
material facts of the case are different from a previous one and then the judge does not have to
follow the earlier one. This is seen in Balfour v Balfour (1919), where the husband made a verbal
agreement of giving his wife �30 a month, while he was away in Ceylon. However he stopped
the payments and Mrs Balfour started legal action. It reached the Court of Appeal and they held
that there was no enforceable agreement, as there was no evidence for a legally binding promise.

So when the case of Merritt and Merritt (1970) came along, where Mr Merritt and Mrs Merritt
signed an agreement that he would pay her a monthly sum. When the mortgage of the house was
paid, Mr Merritt refused to hand over the house. The court accepted the case, as it was more than
a domestic agreement as the agreement was signed after they had separated. This decision is
from Balfour v Balfour (1919) as there was a signed contract with terms and conditions which
both parties had signed. Therefore the judge was allowed to distinguish the case as the facts were
different.

Judges can also distinguish on a point of law and this is seen in the case R v Holley (2006),
which overruled R v Smith (2000). In R v Smith (2000), Smith, who was an alcoholic, stabbed
his friend McCullagh, with a kitchen knife after he apparently stole his work tools. He tried to
claim that the mental disability he had could be considered for the defence of provocation and it
worked. To claim provocation he had to prove that a reasonable person would act in the same
way as he did.

So in R v Holley (2006), Smith was overruled as the judge decided that mental disabilities could
not be considered for the defence of provocation. In this case a man killed his long term
girlfriend after she came home and said she had just slept with another man. This had both been
heavy drinking all day and when he picked up the axe to go and chop some wood she said 'You
haven't got the guts'. He hit her seven to eight times with the axe.

R v G and R (2003) overruled Caldwell completely as the defendant must generally for see the
risk to be liable, it was also seen as unfair. The academics had criticised the decision as
parliament never intended to create an objective test.

Judges can also avoid precedent if they believe the case is outdated and not in line with the
modern way of thinking. This is seen in Addie v Dumbreck (1929), which was overruled by the
Herrington v British Railways Board (1972). In Addie v Dumbreck (1929) the court ruled that a
duty of care was not owed to a trespasser.

In Herrington's case the child had got through a gap in the fence near the railway line and the
board, as occupiers, was aware of previous trespasses but had failed to maintain the integrity of
the fence. The House of Lords held that the occupier of the railway was liable as a duty of care
was owed

Judges can also reverse decisions from a lower court is appealed to a higher one. The higher
court can change the decision if they believe that the lower court has given the wrong one. They
don't change the legislation only the decision. This is seen in Coltman v Bibby Tankers (1987).
Employees at work had little or no protection from injuries, so the Employers Liability defective
Equipment act 1969 was passed to provide protection from injury from equipment. However in
the statute it clearly says equipment is any plant and machinery, vehicle, aircraft and clothing. So
when a man lost his life on a ship when the hull had a defect, the Court of Appeal with bound to
follow the act that the ship was not equipment. When it went to the House of Lords, they
reversed the decision as the purpose was their in the act.

Advantages of judges being allowed to avoid precedent is certainty. A lawyer can provide a
client with reasonable information as they know previous decisions that the judges have given
and it makes the law very accessible to people as they know that decisions can't change, although
there are some exceptions. The House of Lords' Practice Statement points out how important
certainty is. There is also consistency and fairness in the law as it applies to everyone, whatever
background they are. The law must be seen to be working consistency and credible.

Precision is very important as cases are used as evidence and therefore the law becomes very
precise. Flexibility is useful as the Practice Statement can be used by the House of Lords to
overrule cases, which allows the law to develop and avoid bad past decisions. It also saves times
as if no precedents were created then every case would go to the House of Lords. Lower courts
can apply the precedent, which makes the law cheap and saves lengthy the process of litigation.

(Summary A generally accurate account of some methods of judges avoiding precedent. However more could be made of the 1966 Practice Statement

and the powers of the Court of Appeal. There is one advantage discussed. ***)