Judicial Precedent: The Court Of Appeal And The Exceptions In Young V Bristol Aeroplane Co (1944) (Copy)

1.2.1 Sources of Law

Avoidance Techniques – Overruling, Reversing and Distinguishing

Introduction

• While the doctrine of judicial precedent promotes certainty and consistency, it can also create rigidity.
• To prevent injustice or the perpetuation of error, courts have developed techniques to avoid precedent.
• The three main avoidance techniques are:
  1. Overruling
  2. Reversing
  3. Distinguishing

These methods allow flexibility in the system while respecting the hierarchy of courts.

Overruling

• Definition
  • When a higher court in a later case declares that a legal principle established in an earlier case is wrong and therefore not good law.
  • The earlier precedent is invalidated and replaced with the new rule.
• Who Can Overrule?
  • Supreme Court can overrule its own past decisions (using the 1966 Practice Statement).
  • Supreme Court can overrule Court of Appeal and High Court.
  • Court of Appeal can overrule its own past decisions in limited circumstances (per Young v Bristol Aeroplane exceptions).
• Case Examples
  • R v Shivpuri (1986): House of Lords overruled its own decision in Anderton v Ryan (1985), holding that attempting the impossible can constitute a criminal offence.
  • Pepper v Hart (1993): House of Lords overruled Davis v Johnson (1979), allowing reference to Hansard in statutory interpretation.
  • Murphy v Brentwood DC (1991): Overruled Anns v Merton LBC (1978) on local authority liability for defective buildings.
• Advantages
  • Corrects past judicial errors.
  • Allows law to adapt to social and economic change.
• Disadvantages
  • Creates uncertainty when established rules are overturned.
  • May undermine respect for stability of precedent.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Reversing

• Definition
  • When a higher court in the same case overturns the decision of a lower court on appeal.
  • Different from overruling because it is about the same case rather than a later case.
• Case Examples
  • R v Woollin (1999): House of Lords reversed the Court of Appeal’s decision on the meaning of “intention” in murder, clarifying the test for indirect intention.
  • Gillick v West Norfolk AHA (1986): House of Lords reversed the Court of Appeal, recognising that minors can consent to medical treatment if competent (“Gillick competence”).
  • Sweet v Parsley (1970): House of Lords reversed Court of Appeal, holding that strict liability should not apply unless Parliament clearly intended it.
• Advantages
  • Ensures errors at first instance or appeal level do not persist.
  • Clarifies points of law quickly in the same litigation.
• Disadvantages
  • May cause hardship to parties who relied on lower court’s ruling until reversal.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Distinguishing

• Definition
  • When a court decides that the material facts of the current case are sufficiently different from those of an earlier precedent, and therefore the earlier case need not be followed.
  • Allows lower courts to avoid binding precedents without challenging higher authority.
• Case Examples
  • Balfour v Balfour (1919): Husband and wife agreement during marriage held not legally binding (domestic arrangements).
  • Merritt v Merritt (1970): Distinguished from Balfour because the agreement was made after separation and in writing → legally binding.
  • R v Brown (1993): Consent not a defence to sadomasochistic injuries. Distinguished in R v Wilson (1996), where consensual branding between husband and wife was held not criminal (seen as akin to tattooing).
  • Fisher v Bell (1961): Display of flick knife in shop window was an “invitation to treat,” not an “offer.” Distinguished from Pharmaceutical Society v Boots (1953), where items on shelves were also invitations to treat but rules applied differently to self-service context.
• Advantages
  • Provides flexibility and fairness by tailoring precedent to facts.
  • Prevents rigid application of rules in unsuitable contexts.
• Disadvantages
  • May create artificial distinctions and complexity.
  • Risk of undermining certainty in law.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Comparative Overview

Evaluation

• Strengths:
  • Together, these techniques ensure precedent is not overly rigid.
  • Courts can balance stability with justice.
  • Allow gradual development of law without constant parliamentary intervention.
• Weaknesses:
  • Overuse may undermine certainty.
  • Distinguishing can be manipulated to avoid precedents artificially.
  • Requires skilled judicial reasoning to apply consistently.

Conclusion

• Overruling, reversing, and distinguishing are the key judicial tools that maintain flexibility in the doctrine of precedent.
• They allow courts to respect hierarchy and consistency while correcting error, adapting law to new circumstances, and preventing unjust outcomes.
• This balance keeps the common law both stable and adaptable.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course