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[Latin: through the want of care] A decision which a subsequent court finds to be a mistake, and therefore not binding precedent.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