Precedent within Judicial Creativity (2)

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  • Precedent- doesn't support Judicial Creativity
    • There is a requirement to follow past decisions' these are those which have been made by higher courts which lower courts are bound by the ratio-decidendi
    • Appellant courts, such as the Supreme court, and bound by themselves
    • Judges are dependant on cases brought before them; this means they cannot change the law without an appropriate case at a high enough level. For example, a builder owing a duty of case to house purchasers has been discussed since 1960, but not changed until the case of Bratty 1978
    • This all limits Judicial creativity as it it means that there's no room for judges to make the law/ changes to the law at their own will
  • Precedent- supporting judicial creativity
    • The practice Statement: gives the House of Lords power to change the law ''when it appears right to do so''. E.g. BRB v Herrington (trespasser owed a limited amount of care). The Practice Statement allows judges to change law and not follow past cases (as previously bound to do)
    • Higher courts have the power of overruling (Merritt v Merritt and Belfon v Belfon)
    • Dissenting: E.g. Lady Hale on a case involving prenuptial agreements. Dissenting allows other judges to question whether the existing decision is the right one and re-evaluate the circumstances- this might lead to a change in decision
    • All this evidence suggests that despite the rules of precedent, judges are still being creative. This allows us to question the value of precedent.


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