This essay will use case law to illustrate the circumstances in which a court identifies a binding precedent and discuss the techniques and reasoning used to allow them to depart from it. It will look at all courts in the English system, starting with the

        It seems to me that in any system of law the undoubted public advantages of         certainty in civil proceedings must be purchased at the price of the risk of         injustice in         difficult individual situations.

In what circumstances, then, is it appropriate for a court to choose to depart from an earlier binding precedent? The European Court of Justice binds all courts in the English System. The decisions made in the House of Lords are binding on all lower courts and, prior to 1966, bound the House of Lords itself, as established in London Tramways v. London County Council [1898] AC 375 (except where a decision was reached per incuriam, i.e. ‘through lack of care’). In 1966 Lord Gardiner read a statement on behalf of himself and the other Lords of Appeal in Ordinary declaring that the House of Lords would in future consider itself free to depart from its own previous decisions.  As Zander points out, this ‘freedom’ is used extremely sparingly. In Jones v. Secretary of State for Social Services [1972] A.C. 944 the House of Lords choose not to depart from their decision in Re Dowling [1967] 1 A.C. 725, despite the fact that four of the seven Lords hearing the case thought that the decision in Dowling was wrong. Three of the four thought that the decision should be departed from, but the other disagreed. Lord Diplock, who was in favour of departing from the decision, stated that although Dowling was a recent decision he saw no greater reason for perpetuating recent error than for leaving ancient error uncorrected.

All four judges who chose not to depart from Dowling were in agreement that there needed to be a broader issue at stake before departing from an earlier decision. This is supported by Zander, who quotes Professor J. W. Harris’s assertion that precedent should be followed “unless...the issue at stake is so fundamental that it is the appellate judge’s duty to enforce his own view”. Lord Reid quite rightly pointed out that if a majority of six to five in the first appeal could be overruled by a majority preferring a different decision in the second, then there was no reason why a third appeal could not restore the original decision; thus, “finality of decision would be utterly lost”. These arguments are countered by Professor B.V. Harris’ view that doing justice in the case at hand should outweigh the values embodied in stare decisis. While both arguments have merit, it would seem that should Professor Harris’ opinion be adopted as policy it would have the effect of removing certainty to the point of non-existence; given that no two cases are ever exactly the same, judges would always have an opportunity to circumnavigate a precedent by distinguishing it from the case at hand. While this would benefit a party in that particular case, the uncertainty it would cause for everyone else could scarcely be considered to be an acceptable consequence.

Despite the reluctance to depart alluded to above, there have been occasions when the House of Lords decided that it should depart from a previous decision. It was found that in the years between 1966 (when Lord Gardiner made his statement) and 1980, the House of Lords were invited to overrule one of its own precedents in twenty-nine cases. They chose to do so eight times. Reasons for departure varied. In Miliangos v. George Frank (Textiles) Ltd. [1976] A.C. 443 they departed from their earlier decision (that a damages award must be expressed in sterling) due to the changed position of sterling in the modern world. In R. v. Shivpuri [1986] 2 W.L.R. 988 the decision made one year previously in Anderton v. Ryan [1985] 2 All E.R. 355 was overruled as it was deemed the interpretation of the Criminal Attempts Act 1981 in that case had ‘virtually emasculated the Act’.

It is interesting to note that at page 23 of the judgement in Shivpuri Lord Bridge states that “If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better”. This view contrasts with that in the case of R. v. Kansal (No. 2) [2001] UKHL 62, when the House of Lords refused to depart from its verdict in R. Lambert [2001] UKHL 37 on the grounds that it would not depart from such a recent decision (despite the fact that it agreed that the reasoning in Lambert was incorrect).

While the House of Lords is the supreme judicial authority in the English Legal System, Twining and Miers argue that the Court of Appeal is the more significant court on the grounds that it hears many more cases than the House of Lords and because it is, for various reasons (including financial), the ‘court of last resort for most appellate cases’. They contrast the 83 cases heard in 1997 by the House of Lords with the 1,225 heard by the Court of Appeal The case of Young v. Bristol Aeroplane Co. Ltd. established that the Court of Appeal was bound by its previous decisions, except in three circumstances: (i) where there are two conflicting decisions it may choose which to follow; (ii) when a ruling of the Court of Appeal, though not overruled, does not stand with a later ruling of the House of Lords; (iii) where it is satisfied that an earlier decision was given per incuriam.

There are other circumstances outside the three listed above where the Court of Appeal may depart from a previous decision. Manchester et al. identify the case of Rickards v. Rickards [1989] 3 All E.R. 193 when the Court of Appeal held that if a case was wrongly decided, and the Court of Appeal was the final appellate court (no review by the House of Lords being possible), they could depart from a decision they were satisfied was wrong, even if it did not fall within the category of a decision reached per incuriam. They also highlight R. v Brent London Borough Council Housing Benefit Review Board [2001] Q.B. 955, where the Court of Appeal held that when a proposition of law that was part of the ratio decidendi of a previous decision had been assumed to be correct, but had not been argued or considered before the court, they were free to depart from that decision.

There has been occasion when the Court of Appeal identified a binding precedent from the House of Lords but chose to depart from it. Lord Denning, in giving judgement in Schorsch Meir GmbH v. Hennin [1975] Q.B. 416 ruled that judgement in an English court could be given in a currency other than sterling, overruling the House of Lords decision in Havana Railways on the grounds that cessante ratione cessat ipsa lex (when the reason for the rule goes the rule lapses). Although this case did not go to the House of Lords, the same issue arose in the afore-mentioned Miliangos case. The House of Lords, through Lord Cross, took the opportunity to assert their authority and to issue a sharp rebuke to Lord Denning, stating that “it is not for any inferior court – be it a county court or a division of the Court of Appeal presided over by Lord Denning – to review decisions of this House”.

In civil matters, divisional courts of the High Court are bound by the House of Lords, the Court of Appeal, and by their own decisions (apart from the earlier exceptions discussed in Young).  In criminal cases their position is the same as that outlined previously for the Court of Appeal.  Magistrate’s courts, county courts, and all other inferior courts and tribunals are bound by the decisions of all superior courts.

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