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Saturday, May 8, 2010

Chapter-30 Exception to Rule of Precedent and Stare Decisis-Pat-2

Exception to the Rule of Precedent

To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect the previous decisions of a Court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. But when a previous case has not laid down any new principle but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance[1].

If the citation is of any help, it may be observed that the above decision relates to the year 1975 while the earlier observations were of earlier years. The President, on the other hand, preferred to deal with the problem of stare deems by adding a new exception to the rule in the Bristol Aeroplane case which he
formulated as follows: —

"The court is not bound to follow a previous decision of its own if satisfied that that decision was clearly wrong and cannot stand in the face of the will and intention of Parliament expressed in simple language in a recent statute passed to remedy a serious mischief or abuse, and further adherence to the previous decision must lead to injustice in the particular case and unduly restrict proper development of the law with injustice to others."

LORD JUSTICE SHAW phrased the exception rather differently. He said:” It would be in some such terms as that the principle of stare decisis should be relaxed where its application would have the effect of

" depriving actual and potential victims of violence of a vital protection which an Act of Parliament was plainly designed to afford to them, especially where, as in the context of domestic violence, that deprivation must inevitably give rise to an irremediable detriment to such victims and create in regard to them an injustice irreversible by a later decision of the House of Lords."

Observations of VISCOUNT DILHORNE with Regard to Precedents[2]

Davis v.Johnson

Since then one new factor has arisen and I wish to add a few observations with regard to that. Prior to 1966 this House treated earlier decisions made by it which were not distinguishable as binding. It was left to Parliament to amend the law laid down by the earlier decisions if in the light of modern conditions it was felt that that decision should no longer be followed. Owing to pressure on Parliamentary time this sometimes led to no action being taken or on its being taken only after long delay.

In 1966 consideration was given to whether as a matter of law this House was bound to follow its earlier decision. After considerable discussion it was agreed that it was not, and so the announcement to which my noble and learned friend refers was made. " If the House of Lords is not bound by " its previous decision, why should we be? " so the argument runs, an argu ment that could be advanced in every court of record in the land, but an argument which ignores the unique character of the House of Lords sitting judicially. It is a character not possessed by any other court and herein lies the fallacy in the argument. This House is not bound by any previous decision to which it may have come. It can, if it wishes, reach a contrary conclusion.
This is so whether or not the House is sitting to discharge its judicial functions. That is the ground on which those who were parties to the announcement made in 1966 felt, I think, that it could be made without impropriety. It is not a ground available to any other court and the fact that this House made that announcement is consequently no argument which can properly be advanced to support the view that the Court of Appeal or any other court has similar liberty of action.

[1] G&C Kreglinger v New Patagonia Meat & Cold Storage Co Ltd [1913] UKHL 1 (20 November 1913)
Cite as: [1914] AC 25, [1913] UKHL 1, [1914] 1 AC 25 per VISCOUNT HALDANE LC

[2] As quoted by VISCOUNT DILHORNE in the case of Davis v Johnson [1978] UKHL 1 (09 March 1978)

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