MELS-week 5 notes: continuation on Stare Decisis and Doctrine of Judicial Precedent

6.4 The mechanics of Stare Decisis

o Precedent is created by superior courts to bind lower courts and generally, courts of equal status
o Not all precedents are binding: persuasive precedents –
 Decisions of lower courts such as the County court and tribunal cannot bind
 Decisions of the High Court at first instance (trial stage) are persuasive authority for later
cases in the High Court (but are binding on lower courts_
 Decisions of the Judicial Committee of the Privy Council
 Decisions of the Scottish and Northern Irish courts
 Decisions of other courts within the common law world
6.4.1 The Supreme Court (formally House of Lords)
o Decisions bind all lower courts
o Lords decided they could depart from their own previous decisions; but would only in rare
circumstances- technical distinction between departing from a decision and overruling it
British Railways Board v Herrington 1972
 Lords faced a number of 19thC and early 20thC decisions that held there was only a limited duty of
care in negligence owed to children who trespassed onto property
 This duty was the occupier shouldn’t act recklessly with regard to children whom he knew to be
there
 Public policy dictated there was not duty to keep children out or make the premises safe for them
 Lordships felt able to depart from their earlier decision and impose on British Railways a duty of
care in keeping railway line fences repaired
Millangos v George Frank Textiles Ltd 1976
 House of Lords previously decided to award all damages in an English court in sterling
 Because of change to international trade and status of the sterling- didn’t adhere
R v Shivpuri 1986
 Concerned the law as to criminal attempts: House of Lords changed it’s mind on whether it was
possible to attempt to do the impossible
 Rare example of the House of Lords overturning its own decision simply because it felt the earlier
decision was wrong
Food Corp of India v Antclizo Shipping Co 1988
 Lord Goff states that the Lordships wouldn’t depart from a previous house of lords decision unless:
(1) it felt free to depart both reasoning and decision of the earlier case; and (2) such a review would
affect the resolution of an actual case before them and not be merely of academic interest

o House of Lords/ Supreme Court has to balance the questions of certainty, flexibility, legal,
commercial and social development and the influence of European and international law
6.4.2 Retrospective and Prospective Overruling
When a court is faced with a decision on what the law means it might depart from or overrule a previous
decision- can adopt 3 different approaches
Approach 1

 The law is , if that differs from what everyone thought hard luck- it was always  we just didn’t
know until now
 Any decisions which changes the law from what it was previously thought to be operates
retrospectively – parties to the case are caught by the ruling, and so were those who hard
leases/contracts on the basis of what they thought the law was
 Also prospective- ‘new law’ ensures all future cases will be decided in this way also
Approach 2

 The law is , but because everyone has organised their affairs until now on the basis that the law
was ∂, the new view only affects events occurring after the decision
 Only contracts/leases made after the date of judgement would be affected by the ‘new’ law- 
 Contracts/Leases made before the judgement would continue to fall under the ‘old’ law- ∂
 Purest form of prospective overruling: most statutes work on this basis – judicial tool used to
mitigate the adverse consequences of making major changes to the law
Approach 3 (mixing)
 Decisions may be held to be prospective as regards to everyone not involved in the case, but
retrospective in its effect for parties involved in the case in which the ruling is given
 Ruling may be prospective as regards to everyone involved in the case which the ruling was given
and also as between the parties in other cases already pending in the courts on the same issue

Idea of prospective ruling looks attractive but the danger is that different laws may apply to the same type
of contracts with the only difference being their date- retrospective rulings are still the norm
6.4.3 The Court of Appeal
To what extent is the Court of Appeal bound to follow decisions of the House of Lords/Supreme Court?
Strictly speaking always- campaigns in the Court of Appeal though to overcome this principle: principle
crusader being Lord Denning: his retirement signalled a halt to the conflict
The per incuriam campaign-
 Lord Denning advocated that if a House of Lords’ decision had been made per incuriam it need not
to be followed
 Per incuriam – decision where a court has failed to take into account all the relevant and vital
statutes or case authorities and that this had a major effect on the decision. Well established
technical rule : a decision per incuriam doesn’t simply mean the earlier court got it wrong: only
means there was a ‘significant oversight’- not only must there have been a failure to take into
account of relevant authorities, the fault must also have been such a major defect that it seriously
affected the reasoning of the case and would’ve affected the outcome
 Lord Denning- tried this form of reasoning in Broome v Cassell 1971: convincing other members of
the COA that an earlier House of Lords decision made per incuriam because it failed to consider
even earlier House of Lords authorities :
 In the hierarchal system of courts which exists in this country , it is necessary for each lower tier,
including the Court of Appeal, to accept loyalty to the decisions of the higher tiers’- Lord Hailsham

The lapsed rule campaign-

 House of Lords reached a decision some years ago based upon a particular set of rules or facts- the
rule eventually disappeared: Should the precedent created by the House of Lords be followed even
though the whole basis of this precedent has disappeared?
 Considered by the Court of Appeal, led by Lord Denning : Schorsch Meier GmbH v Hennin 1975:
used the idea of cessante ratione legis, cessat ipsa lex – with the reason for the rule ceasing, the
law itself no longer exists: Court of Appeal was split

-One is forced to say that Lord Dennings campaigns failed: it is for the Supreme Court to change its mind,
not for the Court of Appeal to decide the issue for it
To what extent is the Court of Appeal Bound by its own previous decisions?
Basic rule is that it is bound- decided in Young v Bristol Aeroplane Co. Ltd 1944 : Lord Greene specified
there were 3 exceptions
Exception 1: The Court of Appeal can choose between its own conflicting decisions
 A later court faced with this problem would be free to decide which authority it should follow :
result is the one not chosen is overruled.
 If a general rule emerged, it is probable that the later case would be followed in preference to the
earlier one
 Situation can occur because: (1) cases may involve similar legal principles and the various courts
may reach different conclusions which later appear contradictory. (2) possible some earlier cases
haven’t been reported. (3) one court may look at a previous decision and consider them
distinguishable for one reason, whilst another may think they aren’t distinguishable and shouldn’t
be followed
 Patel v Secretary of State for the Home Office 2012: court decided to go with the decision it
preferred when faced with what it termed ‘irreconcilable difference’ between two of its previous
judgements
Exception 2: if its own previous decision has been overruled expressly or implied by the Supreme Court it
need not be followed
If the order of cases ran:
1. Court of Appeals decision
2. House of Lords decision (disapproving of the Court of Appeals reasoning)
3. Your case in the Court of Appeal – COA must follow the House of Lords decision
Question is what path it should take if the order was:
1. House of Lords decision
2. Court of Appeals decision- contrary to House of Lords
3. Your case in the Court of Appeal
Exception 3: the Court is not bound by its own decisions found to have been made per incuriam
 Per incuriam is not simply where the court has made a mistake: the fact that a case being examined
has weaknesses in the argument or in the judgement, doesn’t mean the decision was made per
incuriam
 Morelle v Wakeling 1955: Lord Evershed limited the use of per incuriam to cases where
a) There was ignorance of authority which would have been binding on the court; and
b) That ignorance led to faulty reasoning
6.5 Are there any other exceptions to the application of Stare Decisis to the Court of Appeal that have
emerged since 1944? - yes but not many
6.5.1 Criminal matters
o Criminal Division of the Court is traditionally more relaxed on stare decisis, especially where
someone’s liberty is at stake
o R v Parole Board, ex parte Wilson 1992- court applied the principle that where liberty was at stake
and injustice may occur, stare decisis wasn’t applicable- however the court of appeal found the
earlier precedents distinguishable in any case so that the comments on stare decisis weren’t
necessary . R v Simpson 2003 -Court of Appeal affirmed this approach
o Dealing with criminal law matters, the court of Appeal generally adheres to stare decisis but also
recognises some exceptions:
a) Where the applicant is in prison and in the full court’s opinion wrongly so
b) Where the court thinks that the law was misunderstood or misapplied
c) Where the full court is carrying out its duty to lay down the principles and guidelines in
relation to sentencing
6.5.2 Blocked Appeals
In exceptional cases the Supreme Court cannot review a decision of the Court of Appeal then the Court of
Appeal becomes the final point of appeal and can choose not to follow its own precedent
6.5.3 Decisions of a Two-judge Court of Appeal
o Normal panel in the Court of Appeal is 3-5 judges
o Boys v Chaplin 1968 : held that if the court consists of only two judges, this will not bind a later full
court of appeal – no longer the position
o Two judge Court of Appeal now has the same power to create binding precedent as a full court:
Langley v North West Water Authority 1991
6.5.4 Decisions made by other courts
Decisions of the House of Lords/Supreme Court and the Judicial Committee of the Privy Council

 JCPC not part of the legal system- cannot create binding precedent: but any decisions created by
the JCPC are treated as highly persuasive : sometimes to the point of overcoming the strict rules of
stare decisis
 R v James; R v Karimi: Held that the court of appeal shouldn’t follow a Privy Council decision in
preference to its own, unless ‘there is domestic authority that shows that its own decision was per
incuriam or at least of doubtful reliability….the course taken in R v James; R v Karimi was justified as
it was the foregone conclusion that if the case had gone to the House of Lords, they would’ve
followed the Privy Council
Decisions of the Court of Justice of the European Union

 Court of Justice (CJEU) is the only court that can make authoritative rulings on the meaning and
interpretation of European legislation- CJEU only decides what the law means and not the cases
 Authoritative ruling on the meaning of the law and the application of that interpretation
 Court of Appeal should strictly follow the Supreme Court on the factual analysis and the CJEU on
the pure legal analysis
 If there is conflict between the later CJEU decisions and the earlier UK decisions, the CJEU decision
should be followed: to this extent the principle of stare decisis is disapplied
Decisions of the European Court of Human Rights

 Decisions of the European Court of Human rights may simply be ‘taken into account’ by judges but
do not create precedents and their decisions are not enforceable in our courts
6.5.5 International Obligations

 Parliament is presumed to legislate in conformity with the United Kingdom’s international

obligations
 AN off shoot of per incuriam rule: a failure to take into account such obligations may mean a
previous case is not binding
6.6 Does every case have to be heard by the Court of Appeal before it can proceed to the Supreme Court?
No

 Civil case may go from appeal at the High Court to the Supreme Court, bypassing the COA:
‘leapfrogging procedure’
 If the case started in the county courts though, an appeal lies to the Court of Appeal not the High
Court: thus the leapfrogging procedure becomes irrelevant
6.8 Other Courts
6.8.1 Trial Courts
o All courts which are lower than the Court of Appeal are bound by the rules of stare decisis in the
normal way
o The important tribunals also have their own appellant tribunals which often incorporate their own
variations on the rules of right to appeal and the binding nature of precedent within that system
o Courts like the Crown Court are trial courts, dealing mostly with facts and evidence rather than
questions of high legal analysis- don’t create precedent
6.8.2 Divisional Courts
 High Court has a supervisory and limited appellate jurisdiction over the trial courts- each division of
the High Court- Queen’s Bench, Family and Chancery had divisional courts
 These are bound by stare decisis
 When it comes to the question of binding themselves: similar to court of appeal- bound but not
necessarily on criminal matters
6.8.3 The Court of Justice of the European Union
Jurisdiction
Supreme authority on the interpretation and validity of EU law- but unless the question was generated by
the EU or is an area affected by EU law, the CJEU has no jurisdiction
How does a case come before the CJEU?
 Any country’s domestic courts or tribunals can ask the Court of Justice for a ruling on the meaning
of EU law: it is that domestic court or tribunal which implements the decision by applying that
interpretation to the facts
 For the domestic courts to decide whether it wishes to refer a matter to the CJEU court- domestic
court is only asking for an authoritative interpretation
System of judicial precedent?
 European lawyers are merely persuaded by precedent: same of the CJEU
 Cases become examples of the application of the code: hardly the principle of stare decisis
 Court is the final court on the questions and the only thing that can alter their decisions is a change
to the treaties
6.9 Impact of Human Rights Legislation
 Under the Human Rights Act 1998- all common law rules and precedents that are incompatible with
the ECHR are potentially open to challenge
 Act requires British courts to take into account the judgements, decisions and advisory options of
the European Court of Human Rights