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The principle reasons for the existence for the doctrine of precedent is to create continuity, fairness and certainty in decision. However, one would be forgiven for believing that because of this principle of stare decisis, the law is rigid and unchanging. There exist intrinsic fail-safes to ensure a natural evolution of law in reaction to the development of society..Firstly, precedents set by courts may actually be contradicted or overruled by a superior court. For example a decision made by the High Court may be overruled by the House of Lords or by the Court of Appeal. This is illustrated by the case C (a minor) v DPP A 1-year-old boy appealed against his conviction for interfering with motorcycles, arguing that the prosecution had not proved mischievous discretion. Abolishing the presumption of doli incapax for children between 10 and 14, Mann LJ said it was clear on authority that the Divisional Court had power to depart from its own previous decisions. The House of Lords reversed the Divisional Court on the point of substantive law, but did not expressly consider whether or not the Divisional Court was bound by its own decisions in appellate cases..The following of precedent may also be avoided through the distinguishing of cases. A judge may distinguish it by finding some significant difference in the facts of the earlier case and adopting a narrow version of the ratio. He can then say that the ratio of the earlier case does not apply to the case now before him. A good example of this is are the cases Rylands v Fletcher and Rickards v Lothian..In the case Rylands v Fletcher, water escaped from the defendants reservoir through some old mine shafts that had not been adequately sealed, and flooded the plaintiffs working mines. Blackburn J said the true rule of law was that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so he is prima facie answerable for all the damage which is the natural consequence of the escape. Upholding this judgement in the House of Lords, Lord Cairns LC said the defendants might lawfully have used their land for any purpose for which it might in the ordinary course of the enjoyment of land be used, and if in the natural use of the land there had been any accumulation of water, which by the operation of the laws of nature had passed off into the land occupied by the plaintiff, the plaintiff could not have complained. On the other hand, if the defendants not stopping at the natural use of their land had desired to use it for any non-natural purpose, and if in consequence of their doing so the water came to escape and pass off into the plaintiffs land, then that which the defendants were doing they were doing at their own peril..
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In Rickards v Lothian, a sink in Ds upper flat had been blocked and water turned on by an intruder, causing damage in Ps flat below. Lord Moulton, giving their Lordships judgement, said a defendant is not liable under the rule in Rylands v Fletcher for damage caused by the wrongful acts of third persons. He also took up Lord Cairns emphasis on non-natural use, and said it is not every use to which land is put that brings into play the rule in Rylands v Fletcher. It must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community..It seems all very well that the House of Lords (or the Court of Appeal) can overrule inferior rulings, or distinguish cases containing differing key principles, but what when the precedent was set by the House of Lords, and in accordance with social changes a different result is now desired? Until about 5 years ago, nothing could be done; decisions made by the House were binding on itself until Parliament produced a change in statute. Today though, the 166 Practice Statement is existence. The Statement reads ... Their Lordships recognise that too rigid adherence to precedent may lead to injustice in a particular case and also 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 just to do so. In this connection they will keep in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into, and also the special need for certainty as to the criminal law..The cases Addie v Dumbreck and Herrington v British Railways illustrate the House of Lords employing the Practice Statement. In the first case The House ruled that an individual owes no duty of care to a trespasser on their land. Nevrtheless, in the more recent case the declared that in some instances we may owe a slight duty of care a duty of common humanity. Although the Statement may now be used, the House still often strives to follow the principle of stare decisis. This is illustrated by case Knuller v DPP. The publisher of a gay contact magazine was charged with inter alia conspiring to corrupt public morals. Affirming his conviction, Lord Reid said he still believed the Houses decision in Shaw v DPP (that such a crime existed) had been wrong, but it did not follow that it should now be reconsidered. The 166 Practice Statement does not mean that whenever the House thinks a previous decisions is wrong it should reverse it, he said; in the general interest of certainty in the law their Lordships should be sure there is some very good reason for so acting..There are some guidelines to which the House of Lords adhere concerning the 166 Practice Statement it should only be used sparingly, the House should try not to upset the legitimate expectations of parties who may have relied on the former decision in making contracts. It should not overrule a previous interpretation of a statute unless there are exceptional reasons for so doing. The House should avoid making piecemeal changes in cases calling for comprehensive reform of a whole area of law. It should not overrule an earlier decision merely because it was thought to be incorrect, but only if it was clearly unjust or outmoded. The House should use the power when necessary to remove uncertainty in the law..Judges are allowed (and required) to develop the Law in novel situations; new situations which have never before been considered by a court. In such cases any decision made by the judge sets a precedent. The case Marks & Spencer v One In A Million illustrates this legal point. DD registered a number of Web addresses including (for example) marksandspencer.com, virgin.org, and spice-girls.net, and then offered to sell these addresses at high prices to the companies concerned. PP claimed the addresses were theirs by right and should be handed over at only a nominal price. Because the Web was still relatively new the Deputy High Court Judge (Sumption QC) had no direct precedents to follow, but ordered DD to transfer the addresses to PP. Since DD could have no legitimate use for other companies registered trade names, they should not have registered those addresses in the first place. [His decision was subsequently affirmed on appeal...
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