Distinguishing and Overruling [8 marks]

Question 1

intro

Answer 1

Judges are granted ways in which they can avoid following a precedent. This usually happens if the previous precedent is out-dated, or if the precedent was made per incuriam (by mistake).

Question 2

What is ‘distinguishing’?

Answer 2

Distinguishing can be used in any court. It is used when the facts of the current case are ‘materially different’ to that of the old precedent, meaning that the judges do not have to use the precedent.

Question 3

Distinguishing Example

Answer 3

In Balfour v Balfour, a husband made a verbal agreement to pay his wife £30 a month and after they divorced, he stopped paying it. The court heard there was no intention to create legal regulations and so the husband did not need to continue to pay.

Later, in Merritt v Merritt, a divorced husband agreed to pay his now ex-wife £40 a month to pay the mortgage but then stopped paying it. The judge distinguished the case from Balfour v Balfour as the couple were legally separated and the decision was written down. The judge compelled the man to continue to pay.

Question 4

What is ‘overruling’?

Answer 4

Overruling involves a Superior Court (Supreme Court, Court of appeal or High Court) replacing an old precedent with a new one. This usually happens if the old precedent is considered out-dated or incorrect.

Question 5

Overruling Examples

Answer 5

In MPC v Cal the court created the Objective Test for recklessness in criminal cases. However, the judge in R v G & R overruled the previous case to rule that recklessness could only be subjective.