Legal skills and debates in Scotland
Legal skills and debates in Scotland

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2.3.2  Distinguishing

In comparison with the mechanism of overruling, which is rarely used, the main device for avoiding binding precedent is that of distinguishing the previous case as having different material facts and, therefore, as being not binding on the current case. Material facts are those in any case which have legal consequences.

As has been previously stated, the ratio decidendi of any case is based upon the material facts of the case. This opens up the possibility that a court may regard the facts of the case before it as significantly different from the facts of a cited precedent, so it will not find itself bound to follow that precedent. Judges use the device of distinguishing where, for some reason, they are unwilling to follow a particular precedent. Law reports provide many examples of strained distinguishing where a court has quite evidently not wanted to follow an authority that it would otherwise have been bound by.

Box 5 Summary of binding precedent

  • Not everything in a court case sets a precedent.
  • There is a difference between ratio decidendi (the statement of legal principles material to the decision) and obiter dictum (the discussion of legal principles raised in argument but not material to the decision).
  • The binding element in a future case is the ratio decidendi and that, while the obiter dictum will never be binding, it may have strong persuasive force.
  • There are situations in which judges do not have to follow previous decisions:
    • overruling a previous case
    • distinguishing a previous case.

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