3.06.2010
Saturday, May 8, 2010
Chapter-30 In Curiam Explained
Per incuriam (the "per incuriam rule")
"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.
Chapter-30 Stare Decisis -Rules Laid down by House of Lords-Part-3
Other Relevant decisions and Rules laid down by House of Lords
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."
"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.
[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.
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)
URL: http://www.bailii.org/uk/cases/UKHL/1913/1.html
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)
Chapter-30 Absence of Authority and Interpretive process-part-1
The Absence of Previous Authority
LORD WOOLF observed in the case[1] that: “There may be no clear previous authority to support this conclusion but this is not surprising where the relatively new jurisdiction of ordering restitution is involved. What is more important than the absence of clear support in the authorities for the grant of compound interest is the absence from the existing authorities of any statement of principle preventing the natural development of a salutary equitable jurisdiction enabling compound interest to be awarded. The jurisdiction is clearly desirable if full restitutionin some cases is to be achieved. It is relevant here to repeat what is stated at the outset in the bank's case under the heading "The Position in Principle":
"1. 'Any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit
derived from another which it is against conscience that he should keep[2]'
The operation of stare decisis in constitutional cases was considered in the Second Territory Senators Case [3]. AICKIN J undertook a review of the authorities and set out some general considerations to assist in deciding whether a previous constitutional decision regarded as erroneous should be overruled. In summary, these considerations were[4]:
- Whether the error of the prior decision had been made manifest by later cases which had not directly overruled it.
- Whether the prior decision went with "a definite stream of authority" and did not conflict with established principle.
- Whether the prior decision could be confined as an authority to the precise question which it decided or whether its consequences would extend beyond that question.
- Whether the prior decision was isolated as receiving no support from other decisions and forming no part of a stream of authority.
- Whether the prior decision concerned a fundamental provision of the Constitution or involved a question of such vital constitutional importance that its consequences were likely to be far reaching, although not immediately foreseeable in detail.
Aickin J also pointed out that as a result of the progressive abolition of appeals to the Privy Council in 1968 and 1975 the Court had become "in all respects a court of ultimate appeal". He said[5]:
"The fact that error can no longer be corrected elsewhere must change our approach to the overruling of our own decisions, at least to some extent. It remains however a serious step, not lightly to be undertaken."
Another important factor distinguishing constitutional cases from others is that the effect of constitutional decisions cannot generally be remedied by legislative amendment.[6].
The observation by Dixon J that there was "no very definite rule as to the circumstances in which [the Court] will reconsider an earlier decision" was cited by the joint judgment in John v Federal Commissioner of Taxation[7]. Four relevant considerations were set out in that case:
- Whether the earlier decision rested upon a principle carefully worked out in a significant succession of cases.
- Whether there was a difference between the reasons of the Justices constituting the majority in the earlier decision.
- Whether the earlier decision had achieved a useful result or caused considerable inconvenience
- Whether the earlier decision had been independently acted upon in a way which militated against reconsideration, as in the Second Territory Senators Case.
[1] Westdeutsche Landesbank Girozentrale v Islington LBC [1996] UKHL 12 (22 May 1996)
URL: http://www.bailii.org/uk/cases/UKHL/1996/12.html
Cite as: [1996] 2 All ER 961, [1996] 2 WLR 802, [1996] UKHL 12, [1996] 5 Bank LR 341, [1996] AC 669 per LORD WOOLF
[2] Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] A.C. 32, 61 (Lord Wright), approved in Woolwich Equitable Building Society v. Inland Revenue Commissioners [1993] A.C. 70, 197, 202 (H.L.).[Observing further that:” Restitution is an area of the law which is still in the process of being
evolved by the courts. In relation to restitution there are still questions remaining to be authoritatively decided. One question, which was still undecided until the decision on this appeal, is whether its legitimacy is derived from the common law or equity or both. In order to decide whether compound interest is payable in this case I do not consider it is necessary to decide which is the correct answer to that question, but I am content to assume that the cause of action is one at common law. If the principal sum is repayable as money had and received rather than under some trust or because of the existence of a fiduciary duty it is still unconscionable for the local authority to retain the benefit it made from having received payment under a contract it purported to make which was outside its powers. The fact that, until the law was clarified by the decision in this case, the local authority may reasonably not have appreciated that it should make restitution is not critical. What is critical is that the payment of compound interest is required to achieve restitution. A defendant may perfectly reasonably not regard himself as having been a trustee until the court so decides but this does not effect the remedies which the court has jurisdiction to grant. The jurisdiction of the court to grant remedies has to be judged in the light of what the court decides.”
[3] Queensland v The Commonwealth (1977) 139 CLR 585; [1977] HCA 60.
[4] [1977] HCA 60; (1977) 139 CLR 585 at 630
[5] [1977] HCA 60; (1977) 139 CLR 585 at 630
[6] There may be legislative means to offset the effects of a particular constitutional decision: see the use of referral of powers by the States in support of the Corporations Act 2001 (Cth) and associated legislation following the decision of the Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27.
[7] [1989] HCA 5; (1989) 166 CLR 417 at 438-439; [1989] HCA 5.