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Judicial Precedent

Overruling, Distinguishing and Persuasive Precedent

  • 2 things to know
  • All three papers

Overview

Recall questions on following, overruling and distinguishing, how the Supreme Court and Court of Appeal may depart from their own decisions, original precedent, and persuasive sources such as obiter dicta, lower courts, other jurisdictions and dissents.

What you need to know

Answer each one before you reveal it.

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Process

How can decisions from other common law jurisdictions act as persuasive precedent?

Key term

What is the key difference between overruling and distinguishing a precedent?

Questions from this subtopic

Each one with the model answer underneath.

  1. 1

    When does a court 'follow' a precedent?

    Model answer

    When it applies the ratio decidendi of an earlier case because the material facts are sufficiently similar and the precedent is binding.

  2. 2

    What does it mean when a court 'overrules' a precedent?

    Model answer

    A higher court, or the Supreme Court using the Practice Statement 1966, decides that the legal rule in an earlier case was wrongly decided and replaces it with a new rule; the earlier case is no longer good law.

  3. 3

    Define distinguishing in the context of judicial precedent.

    Model answer

    When a court decides that the material facts of the present case are sufficiently different from a previous case that the earlier ratio does not apply.

  4. 4

    What is the key difference between overruling and distinguishing a precedent?

    Model answer

    Overruling declares a previous decision wrong and removes it as precedent, while distinguishing avoids applying a precedent by identifying factual differences without invalidating the earlier decision.

  5. 5

    What allows the Supreme Court to depart from its own previous decisions?

    Model answer

    The Practice Statement 1966, which allows it to do so when it appears right to do so.

  6. 6

    Which case established the exceptions allowing the Court of Appeal to depart from its own previous decisions?

    Model answer

    Young v Bristol Aeroplane (1944).

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