Chapter-30 In Curiam Explained

Meaning of In Curiam Explained

Literally translated as "through lack of care", per incuriam refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant. The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent by a lower court. Ordinarily, in the common law, the rationes of a judgment must be followed thereafter by lower courts hearing similar cases. A lower court is free, however, to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam.

The Court of Appeal in Morelle Ltd v. Wakeling [1955] 1 All ER 708, [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.

In R v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [1951], 1 All ER 268, a divisional court of the King's Bench Division declined to follow a Court of Appeal decision on the ground that the decision had been reached per incuriam as a relevant House of Lords decision had not been cited to the Court of Appeal. Some academic critics have suggested that Polemis [1921] 3 KB 560 was decided per incuriam as it did not rely upon the earlier decision in Hadley v. Baxendale

"What is meant by giving a decision per incuriam is giving a decision when a case or a statute has not been brought to the attention of the court and it has given its decision in ignorance or forgetfulness of the existence of that case or that statute."

 Per incuriam (the "per incuriam rule")

[Latin: through the want of care] A decision which a subsequent court finds to be a mistake, and therefore not binding precedent. 

It may have occurred through ignorance of a relevant authority e.g. a case on the point of law or legislation.

                 

                 Firstly, in the Court of Appeal a decision is given per incuriam it acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it.

If this happens it must decide which case to follow.

                 

                 Second, when it has acted in ignorance of a House of Lords decision.

If this happens it must follow that decision.

                 

                Third, when the decision is given in ignorance of the terms of a statute or rule having statutory force.

                 

                Forth, when, in rare and exceptional cases, when it is satisfied that the earlier decision involved a manifest slip or error and there is no real prospect of a further appeal to the House of Lords.

                 

                 General rule:

A decision is not per incuriam, for example because the court had not the benefit of the best argument. 

                 

                 Generally, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority.

                 

                Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.

                 

                Sir Raymond Evershed MR, in Williams v Fawcett (1985) CA:

"As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.

"This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene MR, of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was overlooked... As we have already said, it is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it: 'Here was a manifest slip or error.'"

 Lord Denning, citing the per incuriam rule, in Broome v Cassell [1971] famously persuaded the other members of the Court of Appeal to reach a decision that was contrary to a House of Lords decision in Rookes v Barnard [1964].  This was part of a concerted campaign by Denning to give more flexibility to the Court of Appeal.  Denning's decision was reversed when Broome reached the House of Lords.

                 

                 In Young v Bristol Aeroplane co. Ltd [1944] the Court of Appeal found three reasons for not being bound by its previous decisions, the third is " ... the court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court". 

 

Chapter-30 Stare Decisis -Rules Laid down by House of Lords-Part-3

Other Relevant decisions and Rules laid down by House of Lords

Young v. Bristoland

Rule of Stare Decisis: Distinguishing cases into four Categories

In delivering the Judgment of this Court in Young v. Bristol Aeroplane Company Limited [1]King's Bench, at page 725) LORD GREENE, Master of the Rolls, thus stated the effect of the rule stare decisis in its application to the Court of Appeal:

"In considering the question whether or not this court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it and there is no conflicting decision of this court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous decision was given per incuriam[2]. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment."

LORD GREENE returned to the fourth class — which is that now relevant — at page 728 of the report when he said:

"It remains to consider the quite recent case of Lancaster Motor Company (London) v. Bremith Limited, in which a court consisting of the present Master of the Rolls, Lord Justice Clauson and Lord Justice Goddard, declined to follow an earlier decision of a court consisting of Lord Justice Slesser and Lord Justice Romer. This was clearly a case where the earlier decision was given per incuriam. It depended on the true meaning (which in the later decision was regarded as clear beyond argument) of a rule of the Supreme Court to which the court was apparently not referred and which it obviously had not in mind. The Rules of the Supreme Court have statutory force and the court is bound to give effect to them as to a statute. Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two classes of decisions per incuriam fall outside the scope of our inquiry, namely, those where the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covers the case before it - in such a case a subsequent court must decide which of the two decisions it ought to follow; and those where it has acted in ignorance of a decision of the House of Lords which covers the point - in such a case a subsequent court is bound by the decision of the House of Lords.[3]”

On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of coordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise:

(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.

(2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.

(3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam."

What is in curiam is explored in the next part. Blogger

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[1] Young v. Bristol Aeroplane Company Limited (1944, 1 King's Bench, at page 725)

[2] Per Incuriam: Literally translated as "through lack of care", per incuriam refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant. The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent by a lower court. Ordinarily, in the common law, the rationes of a judgment must be followed thereafter by lower courts hearing similar cases. A lower court is free, however, to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam.The Court of Appeal in Morelle Ltd v. Wakeling [1955] 1 All ER 708, [1955] 2 QB 379 stated that as a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong.In R v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [1951], 1 All ER 268, a divisional court of the King's Bench Division declined to follow a Court of Appeal decision on the ground that the decision had been reached per incuriam as a relevant House of Lords decision had not been cited to the Court of Appeal.Some academic critics have suggested that Polemis [1921] 3 KB 560 was decided per incuriam as it did not rely upon the earlier decision in Hadley v. Baxendale.[source: http://en.wikipedia.org/wiki/Per_incuriam]

[3] Ctations and punctuations omitted.