ways in which JP can be avoided model answer

• Judicial Precedent can be avoided if it is outdated as in R v R 1991, which criminalised matrimonial rape. Another exception is when the JP is wrong (as in Anderton v Ryan 1985) where the Supreme Court (formerly the House of Lords) got the Law wrong (per incuriam) on whether a defendant could attempt an impossible crime.
• The status of a court determines its ability to avoid precedent. Superior courts such as the Supreme Court, the Court of Appeal and High Court (sitting as an appeal court) can distinguish, disapprove or over-rule JP. Inferior courts such as the High Court (sitting as a court of first instance), County Court, Magistrates Court and Crown Court can only distinguish or disapprove.
• The superior courts also have the power to avoid their own precedents in certain circumstances. The Supreme Court can use the 1966 Practise Statement which enables it to depart from its own precedent "when right to do so". The first time the Supreme Court used this power was to over- rule a 1929 JP they had made in the case of Addie v Dumbreck 1929 which created a rule that occupiers of land did not owe a duty of care to trespassers.
• This was overruled by British Railways v Herrington 1972 when they decided it was "right" to change this JP and they ruled that occupiers of land did owe a (limited) duty to trespassers. The Supreme Court has also used the Practice Statement in criminal cases; over-ruling the Caldwell JP on objective recklessness and replacing it with a subjective test for recklessness in R v R and G 2003.
• The Court of Appeal can use the three exceptions set out in Young v Bristol Aeroplanes 1944 to avoid its own precedent. These exceptions are: (1) if the previous decision was given per incuriam (by carelessness or mistake) or (2) where there are two conflicting decisions so the Court of Appeal must decide which to follow and which to reject or (3) where a decision of the Court of Appeal has been overruled by the House of Lords.
• Also, in the criminal division, precedent is not followed as rigidly because a person's liberty may be at stake. In R v Taylor 1950, the Court of Appeal held that if 'the Law has either been misapplied or misunderstood' then it must reconsider the earlier decision.
• All courts have the power to avoid JP if the facts of the case are materially different from the facts in the binding case. This is the process of distinguishing. In Balfour v Balfour 1919, a precedent was created that under normal circumstances, husbands and wives did not intend to enter into legally binding contracts. Mr Balfour had agreed to pay his invalid wife £30 per month whilst he worked abroad. They grew apart and he wanted to stop these payments. She tried to sue, and the Court of Appeal ruled that she could not as the agreement had been a verbal and domestic agreement.
• The Appeal Court refused to recognise a binding contract. In Merritt v Merritt 1971, the couple had separated, and Mr Merritt signed a written agreement confirming that he would transfer the matrimonial house into his wife's name and she continued to pay the mortgage on this basis. The Appeal Court found that this was a binding contract in spite of it being domestic. This case was distinguished from Balfour v Balfour 1919 as the husband and wife had separated; drawn up a written contract; and the agreement related to property.
• A binding contract was recognised, and Mrs Merritt was allowed to sue her husband for breach of contract.
• Superior courts also have the power to avoid JP by over-ruling. This is where a precedent created by a case at one point in time is overruled (replaced) by a different precedent from a case at a later point in time. This is seen in 1982 when R v Cunningham 1957 (which established a subjective test for recklessness) was over ruled by the Supreme Court in R v Caldwell 1982 (which established an objective test for recklessness).
• An example of overruling in the civil courts can be seen in Stubbings v Webb 1993 when the Supreme Court ruled that a claimant had three years from the date of knowledge of psychiatric injury caused by sexual abuse to bring a claim. This was over-ruled by the Supreme Court in A v Hoare 2008 when they ruled that this rule could be disapplied where it was inequitable to enforce it. Here, a victim raped in 1989 was allowed to sue the rapist in 2004 after he won £7 million on the lottery.