Where judges do not follow precedent (or where they distinguish binding cases on dubious grounds, as explained later) the result is to introduce great uncertainty into the law.
Even in non-legal groups the idea of precedent is strong, and many social groups apply informal rules based on the way that things have always been done. Almost any concept of justice requires that like cases be treated alike, and this is the basis of the doctrine of precedent applied to a greater or lesser extent in every developed legal system. It is clearly desirable for the law to offer certainty, and so the practice is that once a judge has declared the common law to be such-and-such, his brethren generally follow suit. It is this principle of stare decisis - "that which is decided is to stand" - that forms the basis of common law.
Where judges do not follow precedent (or where they distinguish binding cases on dubious grounds, as explained later) the result is to introduce great uncertainty into the law. The five cases below illustrate this all too well.
Cundy v Lindsay (1878) LR 3 AC 459, HL
A rogue Blenkarn, writing from 37 Wood Street, purported to represent the highly respectable firm of Blenkiron & Co (123 Wood Street) and so obtained goods from RR without paying for them. He sold the goods on to AA, who bought in good faith, but when RR sought to recover the goods (which had never been paid for) the House said they were entitled to do so. They had no contract with Blenkarn, because they thought they were dealing with Blenkiron & Co., so ownership had never passed to him.
Phillips v Brooks [1919] 2 KB 243, Horridge J
A man X went into a jeweller's shop and asked to see some jewellery. He selected about £3000 worth and wrote out a cheque, pretending to be Sir George Bullough. The jeweller P checked the address X gave in a directory and then allowed X to take the jewellery. X (a rogue) then vanished and the cheque bounced: P sought to recover the jewellery from D, who had bought it from X in good faith, but failed. The judge distinguished Cundy v Lindsay as dealing with contracts made by post; in the instant case P had intended to sell to X face-to-face, even though he was mistaken as to X's identity, and ownership had therefore passed.
Ingram v Little [1960] 3 All ER 332, CA
A man X called on two sisters PP advertising a car for sale and agreed to buy it, persuading PP to accept a cheque by claiming to be a Mr Hutchinson of a certain address. Having checked the address in the telephone directory, PP reluctantly took the cheque and allowed X to take the car. X disappeared, the cheque bounced, and PP sought to recover the car from an innocent third party D to whom X had sold it. The Court of Appeal distinguished Phillips v Brooks (without actually overruling it, in view of its age) and said the offer to sell by cheque had been made only to Mr Hutchinson; the contract of sale was therefore void and PP were entitled to the car.
Lewis v Averay [1971] 3 All ER 907, CA
A Bristol postgraduate student P advertised a car for sale, and a man X came to see it. X said he would like to buy it and introduced himself as Richard Green (a well-known actor), showing a studio pass as evidence of his identity. P agreed to accept a cheque and let X take the car away. X disappeared, the cheque bounced, and P sought to recover the car from D, who had bought it in good faith. The Court of Appeal rejected P's claim, following Phillips v Brooks and distinguishing and doubting Ingram v Little.
Shogun Finance v Hudson [2002] 4 All ER 732, CA
A rogue bought a car on hire purchase from a dealer, producing a driving licence (probably stolen) that showed a false name. The finance company CC carried out the normal credit checks against the name on the licence, and subsequently approved the loan. The rogue sold the car to an innocent purchaser D and subsequently defaulted on the loan. [Note: the Hire Purchase Act 1964 provides that a person who buys in good faith from a "hire purchaser", believing him to be an outright owner, acquires a good title.] The Court of Appeal decided that CC were entitled to repossess the car: they clearly intended to hire the car only to the person named on the licence, and the rogue had not acquired any title that could be transmitted to the purchaser D. [Leave has since been given for an appeal to the House of Lords.]
As Lord Denning MR pointed out in Lewis v Averay, frauds of this sort almost always result in a conflict between two quite innocent parties, and there will always be hard cases. Sedley LJ (dissenting in Shogun v Hudson) said the law is still unclear: this is evidently true, and it is wrong that the courts should resort to very technical distinctions to decide essentially similar cases in different ways. The law should be clear one way or the other, and that cannot happen unless the doctrine of stare decisis is properly applied.
How precedent works
In giving judgement on a case, a judge does not merely state his decision: he normally summarises both the facts of the case and the applicable law, and this serves two purposes. First, it makes it clear to the parties and to everyone else that his decision is based not on a mere whim or the toss of a coin in his chambers, but on impartial rules of law. Second, it is from the judge's reasoning that lawyers extract the legal principles to be applied to subsequent cases.
The basic rule of common law systems is that precedents are binding, subject to their being distinguished or overruled - to this extent a judge may be unable to apply the principles he thinks correct if there is a (possibly mistaken) precedent binding him.
R v Home Secretary ex p Anderson & Taylor (2001) Times 27/2/01, DC
Two convicted murderers sought judicial review of the Home Secretary's decision to increase their "tariff" sentences beyond those recommended by the trial judge. Their argument was that under the Human Rights Act 1998 their sentences should be set by an independent judge, not by a politician. The Divisional Court reluctantly dismissed their application, saying that tariff-setting for mandatory life prisoners was not the same as sentencing in all other cases. Had the matter been free of authority they would have said the 1998 Act clearly applied, but they were bound by the decisions of the House of Lords in ex parte Doody and the European Court of Human Rights in Wynne v UK. [But see now the House of Lords' decision at [2002] 4 All ER 1089.]
R v G & R [2003] 1 Cr App R 343, CA
Boys aged 11 and 12 were convicted of arson, the judge having ruled that recklessness was based on a risk obvious to a reasonable person rather than to a typical 12-year-old. The Court of Appeal dismissed the boys' appeal: the decision in Caldwell has been much criticised, but it was made by the House of Lords and is thus an authority binding on the Court of Appeal.
Three things are essential if any system based on precedent is to work:
* a comprehensive and reliable system of law reporting, because judges cannot follow previous decisions unless they have some way of knowing about them;
* a court hierarchy of some kind, so that judges know which decisions they must follow and which they are allowed to overrule;
* some way of identifying the parts of a judgement that are binding, and of separating them from any other things the judge might say.
Law reporting
The principle of stare decisis and the doctrine of precedent depend on there being some way in which other judges and lawyers can learn of decisions. The formal rule is still that any judgement may be cited as establishing a precedent if vouched for by a member of the Bar (or a solicitor with right of audience) who was present in Court when it was delivered, but in practice both counsel and judges rely mainly on the published Law Reports.
In earlier times, the reporting of cases was totally haphazard, and it is only in the last 150 years or so that systematic reporting has allowed the proper development of the system of precedent. Even today, the decision as to which cases should and which should not be reported is a matter for the individual editor. The Editor of The Law Reports (Carol Ellis QC) said in 1975 that to merit reporting, a case must either introduce a new principle or new rule of law, materially modify an existing principle of law, or settle a doubtful question of law. Also included are questions of interpretation of statutes and important cases illustrating new applications of existing principles. It is sometimes argued that the courts themselves should take over the production of Reports from the private and semi-private bodies currently responsible for them, but on the whole the present system works well, albeit with quite a lot of duplication.
The Law Reports themselves have a sort of "pecking order" (not to be confused with the hierarchy of the courts). The most highly regarded are The Law Reports (properly so-called) produced by the Incorporated Council for Law Reporting, set up for this purpose by the Law Society and the Inns of Court in 1865. These reports are checked for accuracy by the judges in the cases reported, and often include a summary of counsel's arguments as well as the judge's decision, and are always cited if available in preference to any other report. They are published in separate volumes of Appeal Cases (i.e. House of Lords and Privy Council), Chancery, Queen's Bench, and Family reports, the last three including cases taken to the Court of Appeal. A separate volume of Weekly Law Reports (also published by the ICLR) includes some cases that do not reach the annual compilations. The European Court of Justice publishes its own official reports.
The All England Law Reports published by Butterworths are widely used by law students, and are the second choice of general lawyers (if the case does not appear in the "official" Law Reports) because of their wide availability. They are published weekly and cover all the higher courts.
A wide range of specialised reports deal with particular aspects of law, and often include cases not reported in the general reports. These include the Criminal Appeal Reports, the Family Law Reports, the Industrial Relations Law Reports, Lloyds Reports on commercial and shipping law, the Entertainment and Media Law Reports, the European Human Rights Reports, and so on.
Many recent cases are reported on-line on the Internet or on CD-ROMs. Subscription services such as LEXIS (the oldest of this kind) and JUSTIS are comprehensive but expensive, and many case reports are available free (though usually without the useful summaries found in the edited reports) via the World-Wide Web. The House of Lords, the European Court of Justice and the European Court of Human Rights normally put their decisions on the Web within hours of their being handed down, as do a number of foreign courts. The Court of Appeal and other English courts are less comprehensively reported at the present time, but a number of official and unofficial sites cover major cases from these too. Links to a range of law reports are available here.
Court hierarchy
A court is bound to follow the ratio of any decision by a court above it in the hierarchy, whether or not it considers that decision correct.
* Decisions of the House of Lords are binding on all other courts.
* Decisions of the Court of Appeal are binding on all other courts except the House of Lords.
* Decisions of a Divisional Court of the High Court are binding on High Court judges sitting alone, and on all other courts except the House of Lords, the Court of Appeal, and a few special courts of equal standing such as the Court-Martial Appeals Court.
* Decisions of a judge sitting alone in the High Court are binding on all inferior courts, including the Crown Court, the County Court and all Magistrates' Courts.
Decisions of High Court Judges sitting in the Crown Court are not binding, although they may be persuasive. Very few Crown Court decisions are formally reported, and it would be illogical and unfair if the effect of a decision depended on the almost random chance of its being reported. Decisions of Circuit Judges, Recorders, District Judges and Magistrates are not binding, and have little or no persuasive force either.
Some tribunals have their own system of precedent - decisions of the Employment Appeal Tribunal, for example, are treated as binding by the Employment Tribunals from which appeal lies - but once again such a system relies on comprehensive reporting of the decisions of the higher tribunal.
Decisions of the Court of Justice of the European Community are effectively binding on all courts as interpretations of Community law, and decisions of the European Court of Human Rights must now be applied under the Human Rights Act 1998, but the ECJ and the ECHR have no doctrine of precedent as such.
Some foreign courts have persuasive rather than binding authority. Decisions of the Judicial Committee of the Privy Council in Commonwealth cases are not strictly binding on English courts, but are treated with great respect because of the eminence and seniority of the judges who sit on that Committee. Decisions of the higher courts in Scotland, Australia, Canada, New Zealand and the United States (all of which have common law systems based on or closely related to English law) are also taken into account when matters of common law are under consideration.
Caparo v Dickman [1990] 1 All ER 568, HL
PP bought shares in F plc with a view to taking it over, and bought more after seeing F's auditors' report. The shares then fell in value, and PP sued the auditors for their negligence in preparing their report. Giving judgement for DD, the House of Lords approved a dictum of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985), that the law should preferably develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative or limit the scope of the duty or the class of person to whom it is owed".
Lister v Hesley Hall [2001] UKHL 22, [2001] 2 All ER 769, HL
A number of former pupils sued in respect of sexual abuse by the warden of a residential school. Overruling T v North Yorkshire (1998), the House of Lords said there had been a close connection between the warden's acts and his employment at the school, and it would not be unfair or unjust to hold the defendants vicariously liable. Lord Steyn referred to two recent judgements of the Supreme Court of Canada as particularly helpful in establishing the right test.
Rationes decidendi and obiter dicta
The part of a judgement considered binding is the ratio decidendi, the legal principle underlying the decision in the particular case; other statements of law are obiter dicta, and have no more than persuasive force. It is not always easy to identify the ratio in a judgement: the traditional view is that the ratio is the rule of law enunciated by the judge to the extent that it is necessary to his decision, but this is less than helpful. In Donoghue v Stevenson [1932] AC 562, for example, the ratio may have ...
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Rationes decidendi and obiter dicta
The part of a judgement considered binding is the ratio decidendi, the legal principle underlying the decision in the particular case; other statements of law are obiter dicta, and have no more than persuasive force. It is not always easy to identify the ratio in a judgement: the traditional view is that the ratio is the rule of law enunciated by the judge to the extent that it is necessary to his decision, but this is less than helpful. In Donoghue v Stevenson [1932] AC 562, for example, the ratio may have been contained in Lord Atkin's "neighbour" principle or may alternatively have been a much narrower rule governing the liability of manufacturers for defective goods.
Various definitions have been suggested. Wallbaugh proposed a reversal test, that the ratio is the narrowest proposition of law such that its reversal would have led to the opposite result, but this leads to speculation about what the judge might have decided in such an event, and is of little practical value. Lord Devlin felt that the ratio of a judgement was the principle that the judge intended to offer as a source of precedent - he was clearly prepared to contemplate yet another guessing game - while Lord Halsbury suggested in Quinn v Leatham [1901] AC 495 that the ratio was authoritative only on its own facts. This is certainly too limiting, and only slightly better is Prof Goodhart's description of ratio as the decision based on the facts treated as material by the judge, which suffers from the additional uncertainty that we do not know which facts these might have been.
Prof Stone, on the other hand, suggested that there is no unique ratio of a case, but rather a selection of possible rationes from which later judges may legitimately choose. It is only in the light of those later decisions that the ratio of the earlier case can be determined. This accords quite well with what really happens in common law - the ratio of Rylands v Fletcher (1868) LR 3 HL 330 was clarified only by Rickards v Lothian [1913] AC 263 some forty years later, for example - but it does nothing to help the judge interpret the ratio of the case immediately prior.
There is no rigorous definition, it is clear, and the situation is made worse by the fact that in some cases it is practically impossible to identify the unique ratio by any criterion at all. This is true particularly of those cases which ought to carry the greatest authority, because it is by no means uncommon for cases to be decided by the House of Lords in which each of the judges (even where the decision happens to be unanimous) offers a different reason for the decision.
Harper v National Coal Board [1974] 2 All ER 441, CA
A former miner P suffering from pneumoconiosis sought leave to bring an action outside the normal limitation period. In a similar case Central Asbestos v Dodd [1971] 2 All ER 1135, the House of Lords had granted leave by a 3-2 majority: Lords Reid and Morris had said time did not start to run until the plaintiff knew he had a worthwhile cause of action, Lords Simon and Salmon had disagreed, and Lord Pearson had agreed with the latter on the law but found as a fact that the plaintiff in that case was entitled to claim. Granting leave, Lord Denning MR and Stephenson LJ said they were bound by the decision in Dodd, and since there was no discernable ratio for the Lords' majority decision in that case, they would adopt the majority reasoning of the Court of Appeal which had led to the same conclusion.
White v Jones [1995] 1 All ER 691, HL
A solicitor negligently failed to prepare a new will for a client, who thus died before he was able to execute the will. His daughters CC, who would have inherited under the new will, sued the solicitor, and the question for the House of Lords was whether the solicitor D owed them a duty of care. Lord Goff said a solicitor's duty of care to his client should be extended to an intended beneficiary, because neither the testator nor his estate would have a remedy and an injustice would be done by leaving a gap in the law. Lord Browne-Wilkinson said there is a "special relationship" between a solicitor and an intended beneficiary, which gives rise to a duty of care by the incremental extension of existing duties. Lord Nolan agreed with both Lord Goff and Lord Browne-Wilkinson; Lords Keith and Mustill dissented. Although a majority of the House agreed that CC should succeed in the instant case, there was no legal principle commanding majority support and hence no ratio applicable more widely.
A judge very rarely says explicitly what part of his decision is the ratio decidendi, but there are isolated exceptions.
Re J [1992] 4 All ER 614, CA
A child J of 16 months was severely disabled in several ways; his life expectancy was short, and his doctors took the view that he should not be resuscitated if his breathing were to fail. J's mother sought an order compelling the doctors to give "all available treatment" to preserve his life, but the Court of Appeal refused to make such an order. Lord Donaldson MR said it would be an abuse of power for the court to order a doctor to carry out treatment which he believed contrary to his duty to his patient. The judge below had treated Lord Donaldson's views in Re J [1990] 3 All ER 930 and again in Re R [1991] 4 All ER 177 as obiter dicta; his Lordship therefore repeated them now and said expressly that they were part of the ratio of his present decision.
Obiter dicta are taken seriously, particularly when they come from senior and well-respected judges (the two adjectives being overlapping rather than synonymous), but are not necessarily followed.
Anderson v Rhodes [1967] 2 All ER 850, Cairns J
Vegetable merchants PP, acting on a verbal recommendation from other merchants DD, supplied potatoes on credit to a firm which subsequently went bankrupt. PP sued for negligent misrepresentation and the judge applied the principles set out by the House of Lords in Hedley Byrne v Heller [1963] 2 All ER 575. Academic lawyers, he said, might argue that those principles were obiter dicta and that he was bound by the contrary decision of the Court of Appeal in Candler v Crane Christmas [1951] 1 All ER 426. But when five members of the House of Lords have all said after close examination of the authorities that a certain type of tort exists, a judge of first instance should proceed on the basis that it does exist, without pausing to embark on an investigation whether what was said was necessary to the ultimate decision.
R v Seymour [1983] 2 All ER 1058, HL
D had an argument with his mistress V as to who was to reverse so the other could drive past in a narrow lane. D got into his lorry and drove forward to push V's car out of the way; V was trapped between the two vehicles and died of her injuries. The House of Lords upheld D's conviction for manslaughter, and Lord Roskill added obiter that the Caldwell/Lawrence definition of recklessness should apply to all offences involving recklessness except where Parliament had ordained otherwise.
R v Spratt [1991] 2 All ER 210, CA
A young man D was firing his air gun from the window of his flat towards the dustbins outside; one shot struck a six-year-old girl whom D had not seen. The Court of Appeal quashed his conviction for assault causing actual bodily harm. They declined to follow Lord Roskill's dictum in Seymour, and said the recklessness required for offences under the Offences Against the Person Act 1861 was subjective recklessness as defined in Cunningham and earlier cases.
Hall v Simons [2000] 3 All ER 673, HL
In one of three conjoined appeals, solicitors AA appealed against a decision that they had no immunity from R's suit in respect of (allegedly negligent) advice on a proposed settlement. Lord Hoffmann said the rule giving advocates immunity from suit in relation to their alleged negligence was no longer appropriate and should be abolished. It is arguable that most of this judgement is obiter, since none of the solicitors in the instant cases were acting as advocates as such at the time of the acts or omissions complained of. But this is a purely technical point: the removal of immunity (even by a bare 4-3 majority in relation to criminal cases) is a clear decision of a strong House and will almost certainly be applied in all future cases.
In a similar way, dissenting judgements by judges in the appellate courts are sometimes treated as persuasive in later cases. Lower judges clearly cannot follow a dissenting judgement if it contradicts a binding precedent in the majority decision, but higher courts may do so.
Hedley Byrne v Heller [1963] 2 All ER 575, HL
Bankers DD assured PP of the financial soundness of a client company EE, who went into liquidation shortly afterwards; PP sued DD for negligent misstatement. There was no precedent for such an action, and in Candler v Crane Christmas [1951] 1 All ER 426 the Court of Appeal had said such a tort did not exist. The House of Lords overruled this majority decision and adopted Denning LJ's dissenting judgement, in which he had argued that negligent misstatement should be actionable under certain circumstances. [On the facts, PP's action failed because of a disclaimer in DD's letter.]
Note that the doctrine of precedent applies to the interpretation of statutes as well as to common law: if a higher court has given an interpretation of a particular word or phrase in a particular section of a particular statute, a lower court is bound to follow.
R v London Transport ex p Greater London Council [1983] 2 All ER 262, DC
The GLC directed London Transport to reduce certain bus and tube fares, promising a grant to make good the shortfall. LT refused to comply, saying s.7(3) of the Transport (London) Act 1969 required them to break even as far as was practicable. Granting a declaration that the GLC's direction was lawful, Kerr LJ said it was clear that the majority of the House of Lords in Bromley LBC v GLC [1982] 1 All ER 129 had held that LT's budgeting duties under s.7(3) could properly take into account any grants which the GLC might be willing to make.
In an article in the New Law Journal in December 2000, Michael Zander reported some statistics on the use of precedents and other authorities.
* Out of more than a hundred cases reported in the first half of 1999, an average of 16 authorities were cited (by counsel or judges) per case. In two cases no authorities were cited; in nine cases there were more than 40.
* 64 per cent of the authorities cited were less than 25 years old; 24 per cent were between 25 and 100 years old; 12 per cent were more than 100 years old.
* Nearly 90 per cent of the authorities cited were from English or Welsh courts. 71/2 per cent were from Australian, American, Scottish or other foreign courts; 2 per cent were from the European Court of Justice and 1 per cent were from the European Court of Human Rights.
Developing the law
Given the doctrine of precedent and the rule of stare decisis, how can the common law ever develop? Certainly it can be amended by legislation, but that is a slow process and the common law has its own flexibility. This is based on
* occasional cases raising novel points to be decided for the first time;
* the power of an appellate court to reverse or overrule a precedent set by a lower court;
* the power of any judge to adopt a narrow ratio and distinguish a case on its facts; and
* the Practice Statement 1966 and other powers to depart from same-level decisions.
Legislation
Any rule of common law can be amended or abolished by legislation enacted by Parliament, by the European Union or (with a few exceptions) by delegated legislation. This is not strictly a development of the common law, but rather a replacement of common law by statute.
A long-standing rule of criminal law was that a person could not be convicted of murder unless the victim dies within a year and a day of the defendant's inflicting injury; in Dyson [1908] 2 KB 454 the Court of Criminal Appeal affirmed this rule and said it applied to manslaughter too. In the late twentieth-century, when injured victims could be kept alive almost indefinitely on life-support machines, it became apparent that this rule was out of date. It was eventually removed by legislation proposed by the Law Commission in the Law Reform (Year and a Day Rule) Act 1996.
A child under 10 is doli incapax (incapable of evil) and cannot be convicted of any criminal offence: that is a statutory rule in s.50 of the Children and Young Persons Act 1933 as amended, and is still the law. It was formerly a legal presumption that the same applied to children between 10 and 14, though the presumption could be rebutted by evidence showing that the child knew that what it was doing was "seriously wrong" and more than just naughty. In C (a minor) v DPP [1994] 3 All ER 190 the Divisional Court suggested that this rule was obsolete and sought to reverse it by common law, but the House of Lords ([1995] 2 All ER 43) said the rule was too firmly established for that to be possible. Parliament therefore included a provision in s.34 of the Crime and Disorder Act 1998 abolishing the presumption.
In Daniels v White [1938] 4 All ER 258 the judge said the manufacturers of a bottle of lemonade were not liable for injuries suffered when the bottle exploded because it contained a small amount of carbolic acid. Their duty was not to ensure the goods were perfect but simply to take reasonable care, and that they had done. European Council Directive 85/374/EEC required member states to introduce strict liability for defective products, and this was implemented in the UK by the Consumer Protection Act 1987.
When the law is amended by legislation, the change is normally prospective (i.e. for the future) and does not affect anything that might have happened in the past. In exceptional cases, however, Parliament may decide to make a retrospective change affecting the past as well as the future.
In Burmah Oil v Lord Advocate [1964] 2 All ER 348 the House of Lords ruled that the Government were required to pay compensation to the former owners of property destroyed by British troops during the second world war to prevent its falling into enemy hands. To nullify this decision, Parliament enacted the War Damage Act 1965 which retrospectively changed the law so that no such liability arose even in respect of events some 25 years before.
Novel situations
Some flexibility is certainly provided by cases which raise novel points of law never previously decided: where there is no precedent, or where there are precedents pointing opposite ways, the judge has the opportunity of creating a new rule. In so doing he does not simply toss a coin or impose his own personal opinion: he may instead reason by analogy following a step-by-step process, or he may look for the broad principles that seem to be illustrated in the decided cases. In McLoughlin v O'Brian, for example, Lord Scarman and Lord Wilberforce came to the same conclusion by different lines of reasoning.
McLoughlin v O'Brien [1982] 2 All ER 298, HL
A mother P saw members of her family in hospital about an hour after a fatal road accident - one daughter was dead and her husband and two other children were seriously injured - and herself suffered psychological injury for which she sued the other driver. Lord Wilberforce reviewed the history of "psychic injury" cases and their step-by-step development of the law, and proposed an extension from a victim at the scene to one who (like P) came upon the "immediate aftermath" of the accident, subject to other criteria which P satisfied. Lord Scarman took a different approach, and said there was a general legal principle that tortfeasors were liable for the forseeable consequences of their acts: it was foreseeable that P would suffer psychological injury in these circumstances, and that was enough.
Gillick v West Norfolk & Wisbech Health Authority [1985] 3 All ER 402, HL
A mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent. The House of Lords said a child under 16 who has sufficient intelligence to understand fully the implications of the proposed treatment (a "Gillick-competent" child) can give her own consent to medical treatment. The fact that her parents have not consented, or even that they have expressly refused the treatment, is then irrelevant. Prior to this decision the law on this point was unclear, but the Lords' decision made new law to fill the gap.
Airedale HA v Bland [1993] 1 All ER 821, HL
A young man seriously injured in the Hillsborough disaster was being kept alive only by extensive medical care and had no chance of recovery; his doctors (with the support of his family) sought a declaration that it would be lawful for them to discontinue treatment so that he might die peacefully.The precedents were uncertain - the ability to sustain life artificially was relatively recent - and the House of Lords could have decided either way. In fact they drew a distinction between active euthanasia (which is unlawful) and the withdrawal of treatment (which may be lawful if the treatment is no longer in the patient's best interests) and granted the declaration sought.
Marks & Spencer v One In A Million [1998] 4 All ER 476, CA
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.]
Appeals
A court is not bound by the rationes of decisions of courts below it, otherwise appeals would be impossible. A decision of a lower court may be reversed in the instant case, or overruled (expressly or impliedly) in a later case. That said, however, the Court of Appeal will not be eager to overturn a long-standing precedent established at first instance, on which people have based their conduct for many years, unless it is quite sure the precedent is wrong.
R v Kingston [1993] 4 All ER 373, CA; [1994] 3 All ER 353, HL
A man D with homosexual paedophilic tendencies went to the flat of another man X. Unknown to D, X intended to lure D into a compromising situation in order to blackmail him, and drugged D's coffee. X then took D into a bedroom where there was a 15-year-old boy, also drugged. D performed various acts with the boy and was subsequently convicted of indecent assault. The Court of Appeal (reversing the trial judge) said a person cannot be blamed for acts committed only because of a drug surreptitiously administered. The House of Lords reversed the Court of Appeal and said a drugged intent is still an intent: involuntary intoxication might go to mitigation of sentence, but could not be a defence in these circumstances.
Fitzpatrick v Sterling Housing Association [1999] 4 All ER 705, HL
Reversing the Court of Appeal [1997] 4 All ER 991, the House of Lords held that a gay man was entitled to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing Act 1988. Lord Slynn said P could claim as "a member of the family" living with the deceased at the time of his death. The word "family" is used in many senses, he said, some wider than others, and if P could show (as on the facts he could) the mutual inter-dependence, sharing of lives, caring and love, commitment and support that are rebuttably presumed to exist between married couples, that would be enough to establish a family relationship.
Hedley Byrne v Heller [1963] 2 All ER 575, HL
Bankers DD assured PP of the financial soundness of a client company EE, who went into liquidation shortly afterwards; PP sued DD for negligent misstatement. There was no precedent for such an action, and in Candler v Crane Christmas [1951] 1 All ER 426 the Court of Appeal had said such a tort did not exist. The House of Lords overruled this decision and said there is a tort of negligent misstatement, even though PP's action failed on its facts because of a disclaimer in the bankers' letter.
Lister v Hesley Hall [2001] UKHL 22, 2 All ER 769, HL
A number of former pupils sued in respect of sexual abuse by the warden of a residential school. Overruling the Court of Appeal decision in T v North Yorkshire [1998] IRLR 98, the House of Lords said there had been a close connection between the warden's acts and his employment at the school, and it would not be unfair or unjust to hold the defendants vicariously liable.
When a higher court overrules a lower, it does not (in theory) change the law but says instead that the earlier case was decided wrongly. This is of more than academic importance, because it means that the law as declared by the higher court does not run only from the date of the decision but has retroactive effect. (It does not alter the result of the earlier case, which remains as originally decided unless there is still time for it to be taken to appeal.)
R v R (rape - marital exemption) [1991] 4 All ER 481, HL
A husband living apart from his wife forced his way into her parents' house where she was living and had sex with her without her consent. Upholding his conviction for rape, and overruling the decision of Lynskey J in Miller [1954] 2 All ER 529, the House of Lords said the long-standing rule that a wife was deemed to have given her consent irrevocably was no longer appropriate. This is not the creation of a new offence, said Lord Keith; it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it. [The defendant was then imprisoned for his conduct, which had not been an offence according to the precedents at the time.]
R v Governor Brockhill Prison ex p Evans [2000] 4 All ER 15, HL
A former prisoner E brought a civil action for false imprisonment against the governor of the prison in which she had been detained. In calculating E's release date, the governor had taken account of time already spent in custody using a Home Office formula which the Divisional Court (departing from several previous decisions of its own) had subsequently held to be wrong. As a result, E had spent nearly two months longer in prison than she should have done. According to the declaratory theory of judicial decisions, the Divisional Court had not changed the law for the future but had declared what the law always had been. The governor had relied on the law as he believed it to be, but it was now clear that he (and the Home Office and previous judges) had been mistaken, and should compensate E accordingly.
Distinguishing precedents
A judge who is disinclined to follow a binding precedent 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.
Rylands v Fletcher (1866) LR 1 Ex Ch 265, Ex Ch; (1868) LR 3 HL 330, HL
Water escaped from the defendants' reservoir, through some old mine shafts that had not been adequately sealed, and flooded the plaintiff's 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 plaintiff's land, then that which the defendants were doing they were doing at their own peril.
Green v Chelsea Waterworks (1894) 70 LT 547, CA
A water main burst and flooded the plaintiff's premises. In the Court of Appeal, finding for the defendant, Lindley LJ said the rule in Rylands v Fletcher was not to be extended beyond the legitimate principle on which the House of Lords decided the case. If it were extended as far as strict logic might require, it would be a very oppressive decision. The company having been authorised by Act of Parliament to lay the mains, and having a statutory duty to maintain a water supply, were not liable.
Rickards v Lothian [1913] AC 263, PC (Australia)
A sink in D's upper flat had been blocked and water turned on by an intruder, causing damage in P's 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.
Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53, HL
Chemicals spilled from drums at a tannery on a small industrial estate seeped slowly through the ground and contaminated water supplies some years later. The water board sued inter alia under the rule in Rylands v Fletcher. Kennedy J dismissed the claim, finding as a matter of fact that the pollution had not been reasonably foreseeable at the time of the operations in question; the Court of Appeal reversed this decision, but the House of Lords restored the judgement and found for the defendants. Lord Goff said that having regard to the steps which the House had already taken to contain the scope of liability under the rule in Rylands v Fletcher it appeared to be appropriate now to take the view that foreseeability of damage of the relevant type should be regarded as a pre-requisite of liability in damages under the rule.
DPP v Camplin [1978] 2 All ER 168, HL
A boy D of 15 went with a man V in his fifties, who buggered him against his will and then taunted him; D responded by hitting V over the head with a heavy pan, killing him. D was charged with murder and claimed he had been provoked. In Bedder v DPP [1954] 2 All ER 801 the House of Lords had said a person claiming provocation should be compared with a reasonable man not sharing the defendant's peculiarities, but the Court of Appeal distinguished this on the grounds that impotence (in Bedder) is an abnormal condition while age (in Camplin) is not, and said the jury should have been directed to compare D's response with that of a reasonable 15-year-old. [The House of Lords dismissed a further appeal by the Crown.]
Merritt v Merritt [1970] 2 All ER 760, CA
A husband and wife splitting up after 25 years' marriage agreed in writing that if the wife kept up the mortgage repayments on their joint home, the husband would transfer total ownership to her. W did keep up the payments, but H then refused to transfer. There was a binding precedent in Balfour v Balfour [1919] 2 KB 571, in which the Court of Appeal had said that agreements - even written agreements - between spouses do not create enforceable contracts. In that case, however, the agreement (H to pay W £30 per month) had been made while the couple had being living amicably together and the husband was about to go to Ceylon on government business;they had not split up until two years later. The court in Merritt therefore distinguished Balfour and said the precedent did not apply where the marriage relationship had already broken down; the Merritts' agreement was legally enforceable.
However, it is only decisions that are part of the ratio decidendi and are given after consideration of the arguments that can truly be regarded as binding.
R (Kadhim) v Brent DC [2001] QB 955, CA
A man K challenged DD's decision that he was not eligible for housing benefit because he lived with his brother. The judge, believing himself bound by a decision of the Court of Appeal in Thamesdown BC v Goonery, reluctantly dismissed the appeal. On further appeal, the Court of Appeal said the Court in Goonery had assumed the relevant point of law without hearing full argument; that being so, the judge was not bound to follow the decision even though it was part of the ratio of the earlier case.
Very rarely, a judge may decline to follow a binding precedent if the point of law has been taken on appeal to the House of Lords and their Lordships have not yet ruled. In such a situation he normally adjourns the case or makes a decision that will leave the matter open.
Kingscastle v Owen-Owen (1999) Times 18/3/99, CA
In a case concerning the tenancy rights of a homosexual partner, the Court of Appeal said a court could in an appropriate case adjourn a case pending a decision of the House of Lords on a point of law on which the Court of Appeal had already given a binding ruling. Hirst LJ quoted with approval a dictum of Evershed MR almost fifty years earlier, that if an important case is known to be subject to appeal, a judge may reasonably and properly think that it is in the public interest not to decide another similar case until the result of the appeal is known.
The 1966 Practice Statement
Until 35 years ago, decisions of the House of Lords were binding on the House itself. Once the House had given a ruling on a point of law or statutory interpretation, the matter was closed unless and until Parliament made a change by statute. This changed in 1966, however, following a Practice Statement issued by Lord Gardiner LC.
Practice Statement (Judicial Precedent) [1966] 3 All ER 77, HL
... 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.
Various guidelines have since developed, to the effect that the House should:
* use its power to overrule itself only sparingly;
* try not to upset the legitimate expectations of parties who may have relied on the former decision in making contracts;
* not overrule a previous interpretation of a statute unless there are exceptional reasons for so doing;
* avoid making piecemeal changes in cases calling for comprehensive reform of a whole area of law; and
* avoid overruling an earlier decision merely because it was thought to be incorrect, but only if it was clearly unjust or outmoded; but
* use the power when necessary to remove uncertainty in the law.
In fact the House has departed from a previous decision of its own no more than fifteen or twenty times since the Practice Statement was issued, though the "special need for certainty in the criminal law" seems at times to have been forgotten.
Conway v Rimmer [1968] 1 All ER 874, HL
A former police officer suing for wrongful prosecution sought disclosure of certain police files, and the Home Secretary claimed public interest immunity for all such files. The House of Lords said the Home Secretary's certificate was not conclusive of the matter: the court should examine the documents itself and order disclosure if the public interest in the administration of justice outweighed the public interest in confidentiality. The decision in Duncan v Cammell Laird [1942] 1 All ER 587 should not be followed.
British Railways v Herrington [1972] 1 All ER 749, HL
The plaintiff, aged 6, was badly burned on the electric rail after going through a gap in the fence. The stationmaster knew the fence was in poor condition, and knew children often trespassed, but took no steps to correct this. The House of Lords declined to follow its own decision in Addie v Dumbreck [1929] AC 358, in which it had held that an occupier of premises had no duty of care to a trespasser and applied Lord Atkin's "neighbour" principle instead: the occupier might not owe to the trespasser a duty to take reasonable care to see that he would be reasonably safe, but did have a duty to treat him with ordinary humanity.
R v Shivpuri [1986] 2 All ER 334, HL
D was arrested entering the country, carrying with him a package which he believed contained either heroin or cannabis, but was in fact ground dried cabbage and quite harmless. D was charged with attempting to import a prohibited drug, and his appeal was dismissed by the Court of Appeal. The House of Lords took note of the widespread criticism of its decision in Anderton v Ryan [1985] 2 All ER 355 (given after the Court of Appeal had decided the instant case) and applied the Practice Statement to depart from that decision.
R v Howe [1987] 1 All ER 771, HL
D took part with others in two separate murders, and on a third occasion the intended victim escaped. D's claim to have acted under duress was left to the jury on two of the three counts, but D was convicted on all three, and appealed. The House of Lords reviewed the authorities, and then exercised its power under the Practice Statement to depart from its decision in Lynch v DPP for Northern Ireland [1975] 1 All ER 913 and say that no participant (whether principal or accessory) can claim duress in defence to a murder charge.
Murphy v Brentwood DC [1990] 2 All ER 908, HL
The purchaser of a house which subsequently developed serious cracks sued the local authority for its alleged negligence in approving building plans with inadequate foundations. A seven-man House of Lords formally departed from the decision in Anns v Merton LBC [1977] 2 All ER 492 and said the Council owed no duty of care to the purchaser. There could be no doubt, said Lord Keith, that to depart from that decision would re-establish a degree of certainty in this field of law.
Hall v Simons [2000] 3 All ER 673, HL
In three conjoined appeals relating to alleged negligence by solicitors, a seven-man House of Lords decided that the advocate's immunity from suit, confirmed in Rondel v Worsley [1967] 3 All ER 993, should be abolished. Lord Hoffmann said the earlier decision was not wrong in its time, but the world had been different then and a blanket immunity could not be justified today.
But as indicated in the first part of the Practice Statement, the House will not necessary depart from a previous decision that it considers wrong.
Jones v Secretary of State for Social Services [1972] 1 All ER 145, HL
An application for industrial injury benefit turned on the proper interpretation of s.7(1) of the National Insurance (Industrial Injuries) Act 1946; AA argued inter alia that an interpretation given by the House of Lords in Re Dowling [1967] 1 All ER 210 was wrong and should be overruled. A seven-man House granted certiorari on other grounds to quash the Commissioners' refusal of benefit, but declined to overrule the decision in Dowling even though four members of the House thought it had been mistaken. The House's power to depart from one of its previous decisions should only be sparingly exercised, said Lord Simon (one of the four), for the advantage of finality should not be thrown away too readily. A difference of view on a matter of statutory construction, would rarely by itself provide a suitable occasion for departing from a previous decision, and it had not been shown that the construction adopted in Dowling's case was causing administrative difficulties or individual injustice.
Knuller v DPP [1972] 2 All ER 898, HL
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 House's decision in Shaw v DPP [1961] 2 All ER 446 (that such a crime existed) had been wrong, but it did not follow that it should now be reconsidered. The 1966 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.
R v Kansal (No.2) [2002] 1 All ER 257, HL
K was convicted in 1992 of various theft and deception charges, the evidence against him having included his own incriminating statements made under the compulsion on the Insolvency Act 1986. In Saunders v UK (1997) 23 EHRR 313 the European Court of Human Rights had declared the use of such evidence to be a violation of the right to a fair trial, but in R v Lambert [2001] 3 All ER 577 the House of Lords had held that convictions secured in accordance with domestic law prior to 2 October 2000 (when the Human Rights Act 1998 came into force) could not be set aside on the grounds of such unfairness. The majority in Kansal took the view that Lambert had been wrongly decided, but declined to depart from its earlier decision.
Court of Appeal
In general, the Court of Appeal is bound to follow its own previous decisions even when it thinks they are wrong. Following the House of Lords' Practice Statement in 1966, Lord Denning MR claimed the same general freedom for the Court of Appeal to depart from a previous decision it believed to be wrong, but his efforts were unsuccessful.
Davis v Johnson [1978] 1 All ER 841, CA; 1 All ER 1132, HL
A County Court judge made an order excluding a joint tenant P from his home after several serious assaults on his cohabitant; he appealed against the validity of such an order. A full Court of five judges led by the Master of the Rolls and the President dismissed his appeal, overruling a previous Court of Appeal decision that would have forced a decision in his favour. Lord Denning MR said the doctrine that the Court of Appeal is bound by its own previous decisions is a rule of practice, not of law, and should be modified to allow the Court to depart from an earlier decision if convinced that it is wrong. The House of Lords dismissed P's further appeal, but affirmed the rule in Young v Bristol Aeroplane (below). Because of the position of the Court of Appeal as an intermediate appellate court, they said, with increasing membership and a number of divisions and the consequent need for legal certainty, the rule that (subject to clearly defined exceptions) the Court of Appeal is bound should be reaffirmed unequivocally.
Fitzpatrick v Sterling Housing Association [1997] 4 All ER 991, CA
A man P claimed the right under the Housing Act 1980 to take over the tenancy of the house in which he had lived for twenty years with his gay partner, now dead. The Court of Appeal expressed great sympathy for P, but said it was bound by its own decision in Harrogate BC v Simpson (1986) 2 FLR 91, where it had held that lesbian partners were not living "as husband and wife". [The decision was subsequently reversed and Simpson effectively overruled by the House of Lords.]
In Young v Bristol Aeroplane [1944] 2 All ER 293 the Court of Appeal said it considered itself to be bound by its own previous decisions, unless one of three conditions applies.
* There are two or more previous decisions which are incompatible with one another.
* The previous decision has been impliedly overruled by the House of Lords. (A decision that has been reversed or expressly overruled is not regarded as a precedent at all.)
* The previous decision was made per incuriam, without considering binding authority that would have led to a different decision. (This exception is very rarely applied.)
Incompatible decisions do arise from time to time, particularly where they are made more or less simultaneously by different divisions of the Court.
R v Parmenter [1991] 2 All ER 225, CA
A man D handled his baby son excessively roughly and caused injuries to the bones of his arms and legs; he was convicted of inflicting grievous bodily harm and appealed. The Court of Appeal quashed the conviction because there was no proof that D had foreseen the risk of injury, but then had to decide whether a conviction for assault causing actual bodily harm could be substituted. One division of the Court had decided in Spratt [1991] 2 All ER 210 that foresight of harm was essential to a conviction; on the same day, another division had decided in Savage [1991] 2 All ER 220 that D need not himself have foreseen any risk of harm. Faced with two incompatible authorities, the Court in the instant case had to choose between them, and chose to follow Spratt. (The House of Lords subsequently reversed the decision and said Savage was the case that had been correctly decided.)
Starmark v CPL [2002] 4 All ER 264, CA
While considering the legal consequences of a tenant's missing a rent review deadline, the Court of Appeal found its previous decision in Henry Smith's Charity v AWADA (1984) 47 P&CR 607 conflicted with its previous decision in Mecca Leisure v Renown Investments (1984) 49 P&CR 12, decided a few months later. The usual practice in such cases is to follow the later decision, but the Court after careful consideration concluded that the majority in Mecca Leisure had been wrong to distinguish Henry Smith, and that the earlier case should therefore be treated as binding.
It is not uncommon either for the House of Lords to make a decision that effectively nullifies a previous decision of the Court of Appeal, but without referring to that previous case directly.
Fitzsimons v Ford Motor Co [1946] 1 All ER 429, CA
A workman P contracted Raynaud's disease as a result of vibration in the drill he had to use, and claimed for an industrial accident under the Workmen's Compensation Act 1925. Allowing P's appeal, the Court of Appeal departed from its own previous decision in Steel v Cammell Laird [1905] 2 KB 232 that an accident required a sudden and decisive attack, and followed instead a decision of the House of Lords in Burrell v Selvage (1921) 90 LJKB 1340 that a disease arising from employment could under certain circumstances be regarded as an accident.
Departures on the grounds that the earlier decision was made per incuriam are very rare, but a few instances have been reported.
Rakhit v Carty [1990] 2 All ER 202, CA
In an action for possession of a flat, the tenant D counterclaimed for the return of overpaid rent. The judge dismissed the counterclaim, saying he was bound by the decision of the Court of Appeal in Kent v Millmead Properties (1982) 44 P&CR 353 that the "fair rent" set for the unfurnished flat no longer applied once the flat was furnished. On appeal, the Court of Appeal said the earlier decisions had been made per incuriam, without reference to statutory provisions in ss.44(1) and 67(3) of the Rent Act 1977 keeping the registered rent in force until a new "fair rent" was registered.
Branchett v Beaney [1992] 3 All ER 910, CA
A woman P in a complex property dispute was awarded damages (including exemplary damages) for trespass, but the Assistant Recorder refused to award additional damages for her hurt feelings and mental distress. The Court of Appeal dismissed P's appeal on this point, and said no such damages could be awarded for a breach of a term in a lease. Balcombe LJ said a contrary decision by another division of the Court in Sampson v Floyd [1989] 2 EGLR 49 appeared to have been made per incuriam, without considering the House of Lords' decision in Addis v Gramophone Co [1909] AC 488.
Hughes v Kingston-upon-Hull CC (1998) Times 9/12/98, DC
A man A made a contingency fee arrangement with a solicitor in relation to proceedings taken against him for a statutory nuisance; when the proceedings were withdrawn, the magistrate refused to make an order for costs against RR, and the Divisional Court rejected A's appeal by way of case stated. The Court of Appeal had decided in Thai Trading v Taylor [1998] 3 All ER 65 that conditional fees were not unlawful, but that decision was per incuriam because the Court of Appeal had not considered the House of Lords' decision in Swain v Law Society [1982] 2 All ER 827 giving Law Society rules the force of statute. Since those rules clearly made contingency fee arrangements unlawful (especially in criminal proceedings), the magistrate was correct. [In Wells v Barnsley MBC (1999) Times 12/11/99, on essentially the same issue, the Divisional Court followed Hughes and again described the decision in Thai Trading as having been made per incuriam. But quaere: Is it open to the Divisional Court, which ranks lower than the Court of Appeal, albeit here in a different branch of the hierarchy, to say that decisions of the Court of Appeal are per incuriam?]
A number of other exceptions seem to have developed piece by piece. The Court of Appeal is not bound to follow its own previous decision, though it may still choose to do so, where a person has been unjustly imprisoned as a result of that decision, where the decision was given by a two-man court in interlocutory proceedings, or where it has been disapproved by the Privy Council.
R v Taylor [1950] 2 All ER 170, CCA
A man D who had "married" at least five women was charged with bigamy; he had not seen his first (lawful) wife for more than twenty years, but pled guilty on legal advice and appealed against his sentence. The Court of Criminal Appeal had ruled in R v Treanor [1939] 1 All ER 330 that the defence of seven years' lack of knowledge provided in the 1861 Act applied only to a second and not to a subsequent "marriage". A full Court of seven led by Lord Goddard CJ declared that it would normally follow the Bristol Aeroplane rule, but that if in the opinion of a full Court it seems that a previous decision has misapplied or misunderstood the law, in consequence of which a person has been imprisoned, the Court has a duty to reconsider its own previous decision. In the instant case, D was entitled to the benefit of the statutory defence.
Boys v Chaplin [1968] 1 All ER 283, CA
A young British airman P was injured by another airman in a road accident in Malta; liability was admitted and the issue was quantum. English law would allow damages of over £2000, whereas Maltese law would award about £50, and P claimed to proceed under English law. The Court of Appeal departed from the decision in Machado v Fontes [1897] 2 QB 231 - it had been made by a two-man court in interlocutory proceeedings, where legal points are rarely fully argued - and allowed P's claim. The rule in Bristol Aeroplane, they said, does not apply to decisions such as these.
Rickards v Rickards [1989] 3 All ER 193, CA
In an appeal which turned on the Court's discretion to extend time limits, the Court of Appeal departed from Podbery v Peak [1981] 1 All ER 699 refusing jurisdiction in such cases, on the grounds of that it was manifestly wrong. Lord Donaldson MR said the importance of stare decisis in relation to the Court of Appeal's own decisions could hardly be overstated: the Court sat in as many as eight divisions and, in the absence of such a rule, the law would quickly become wholly uncertain. However, the rule is not without exceptions, albeit very limited. In the instant case, the preferred course would have been to abide by the previous decision and give leave to appeal to the House of Lords, but where such an appeal was unlikely because of cost (both parties being legally aided), and particularly on a matter of procedural rather than substantive law, the Court of Appeal might depart from its usual rule.
Doughty v Turner Manufacturing [1964] 1 All ER 98, CA
A man P was badly burned when a workmate carelessly knocked a cement block into a bath of molten metal; there was no splash, but a minute or so later there was a violent and wholly unexpected chemical reaction. In Re Polemis [1921] 3 KB 560 the Court of Appeal had held that a person who performed a negligent act was liable for all its direct consequences, but in The Wagon Mound [1961] 1 All ER 404 the Privy Council had disapproved this rule and had said liability existed only where the kind of damage was reasonably foreseeable. Following the latter decision, the Court found DD were not liable for P's injuries: whether or not The Wagon Mound is binding on this court, said Harman LJ, we ought to treat it as the law.
R v Smith (Morgan) [1998] 4 All ER 387, CA
D was charged with murder and pled provocation; there was evidence that he suffered from mental infirmity. The judge directed the jury that D's mental state and its impact on his response to provocation was relevant only to the subjective limb and not to the objective limb of the test, and the jury convicted. Allowing D's appeal and substituting a conviction for manslaughter, the Court of Appeal declined to follow the (persuasive) opinion of the Privy Council in Luc Thiet Thuan v R [1996] 2 All ER 1033, and preferred its own (binding) decisions in cases such as R v Ahluwalia [1992] 4 All ER 889 and R v Dryden [1995] 4 All ER 987.
European law would also seem to require a departure from precedent if the previous Court of Appeal decision is incompatible with a later decision of the European Court of Justice, but there are no reported cases on this point.
Twenty-five years after Davis v Johnson the rule in Bristol Aeroplane is once again under attack.
R v Simpson [2003] 3 All ER 531, CA
Dismissing D's appeal against a confiscation order made following his conviction on several charges involving serious fraud and tax evasion, a five-judge Court of Appeal led by Lord Woolf CJ said the rules of precedent are intended to assist in the administration of justice, but are not so rigid that they cannot be developed to meet changing needs. The Court's decision in R v Palmer [that certain procedural irregularities would prevent the making of a confiscation order] was wrong even if not technically per incuriam, and the Court in R v Sekhon had been right to depart from it. The rules of precedent set out in Halsbury's Laws of England [and above] in relation to the Court's limited powers to depart from its own previous decisions are of considerable importance because of their role in achieving an appropriate degree of certainty in the law, but should not be read as if they were contained in statute. The Court retains some discretion to depart from a previous decision that it considers to be wrong, particularly where (as in the instant case) it is a full Court of five judges.
High Court
A Divisional Court of the High Court, sitting as an appellate court (e.g. hearing criminal appeals by way of case stated), is generally thought to be bound by its own previous decisions in the same way as the Court of Appeal.
Huddersfield Police Authority v Watson [1947] 2 All ER 193, DC
A police officer suffered a duodenal ulcer allegedly brought on by the stress of his job, and applied for a pension for an industrial injury. Dismissing the police authority's appeal from the decision of the Recorder, Lord Goddard CJ said in that when exercising its appellate jurisdiction the Court was bound by its own judgements in the same way and to the same extent as the Court of Appeal. In a system of law such as ours, where the common law is based on decided cases, it would be very unfortunate if a decision of a court of final appeal, laying down a definite principle and made without being misled in any way, was not treated as binding.
Rogers v Essex CC [1985] 2 All ER 39, DC
A parent appealed against his conviction for failing to send his 12-year-old daughter to school, claiming the justices had misdirected themselves as to whether an isolated an unlit lane could be regarded as the "shortest available route" for the child to walk. Allowing the appeal and quashing the conviction, Parker LJ said the court was prima facie bound by its own decisions when sitting in its appellate capacity.
C (a minor) v DPP [1994] 3 All ER 190, DC; [1995] 2 All ER 43, HL
A 12-year-old boy appealed against his conviction for interfering with motor-cycles, 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.
When sitting as a court of first instance (e.g. hearing applications for judicial review), the Divisional Court treats its own previous decisions as highly persuasive but is not strictly bound by them.
R v Greater Manchester Coroner ex p Tal [1984] 3 All ER 240, DC
A sought judicial review to quash the findings of a coroner's inquest in which there had been certain alleged irregularities. Accepting jurisdiction but refusing the application, Goff LJ said the Divisional Court hearing such an application would normally follow a previous decision of another Divisional Court, but could depart from it in rare cases if convinced that the earlier decision was wrong in law.
R v Metropolitan Magistrate ex p London Waste Authority [1993] 3 All ER 113, DC
Granting an application for judicial review of the magistrate's decision to dismiss a charge of dumping waste unlawfully, where it was to remain only temporarily, the Divisional Court applied the principle in ex p Tal above to depart from its own previous decision in Leigh Land Reclamation v Walsall BC (1990) Times 2/11/90, that case having been wrongly decided.
Similarly, a High Court Judge sitting alone is not strictly bound to follow the previous decisions of another High Court Judge sitting alone - he may depart from it if he is sure it was wrong - but normally does so.
Re Kay's Settlement [1939] 1 All ER 245, Simonds J
Three children were potential beneficiaries of a wife's covenant to settle certain property that might be acquired after her marriage in a trust with remainder to them. The trustees sought directions as to whether they should take action to enforce the covenant. In Re Pryce [1917] 1 Ch 234, Eves J in a reserved judgement had ruled that the trustees should not enforce a covenant for the benefit of volunteers who had given no consideration. Whatever sympathy I feel for the children's argument, said the judge, I am not justified in departing in any way from this decision.
Colchester Estates v Carlton Industries [1984] 2 All ER 601, Nourse J
PP brought proceedings alleging DD's breach of a covenant to repair, and DD sought to have them struck out on the basis of a long-standing High Court authority. Dismissing the application and following a later contradictory decision, the judge said that where there were two opposing decisions by judges of equal standing, and where the second decision had been a deliberate rejection of the first, then the second should normally be regarded as authoritative and followed.
Re Smith [1988] 3 All ER 203, Warner J
A local authority PP brought proceedings against D for non-payment of rates, but D declared himself bankrupt and all civil proceedings against him were automatically stayed. PP claimed the proceedings (which sought to impose a penalty) were criminal rather than civil, and the judge reluctantly allowed their appeal. Where a High Court judge is faced with two contrary Court of Appeal decisions, he said, he is bound to follow the later of them. [The House of Lords subsequently reversed the judge's decision and overruled the later decision of the Court of Appeal, but did not disapprove the principle.]
Dunnachie v Hull CC [2003] IRLR 384, EAT
In conjoined appeals, the Employment Appeal Tribunal held that in cases of unfair dismissal an Employment Tribunal has no jurisdiction to award damages for non-pecuniary losses such as hurt feelings. In Norton Tool Co v Tewson [1973] 1 All ER 183 the National Industrial Relations Court had applied the common-law rule in Addis to the new statutory framework, and this decision had been followed for the past thirty years. In Johnson v Unisys [2001] 2 All ER 801 (in which the House of Lords said an employee unfairly dismissal could not bring a claim for additional damages through the ordinary courts) Lord Hoffmann had suggested that an Employment Tribunal might in appropriate cases include in its award "compensation for distress, humiliation, or damage to reputation in the community or to family life", but that was obiter dictum. The NIRC, like the Employment Appeal Tribunal, had status equivalent to the High Court: the Tribunal did not regard Norton as binding, but it was all the more persuasive because of its continued unchallenged effect for so long.
