Atika Ibrahim

1L
LSM LEC 13 Precedents

The HoL used to consider itself not bound by its own previous decisions until
1898. In 1898 it confirmed it would follow its previous decisions to bring
certainty to cases. In 1966 a practice statement was issued indicating a departure
from earlier decisions would be used cautiously.
The practice statement and press release’ main takeaways were
1. 1) the court would rarely deviate from a prior ruling, the court would
most likely apply the new freedom in circumstances where there had been
a significant social change
2. The precedent was out of date or unsuitable for the societal norms,
attitudes and practices of today
3. The court had to maintain English common law’s conformity with the law
of other legal systems. In criminal law, there was a unique need of clarity
therefore, the court would be extremely hesitant to deviate from an earlier
judgement in a criminal proceeding.
> London Street Tramways LTD v London County Council 1898: The
House confirmed that it would in future be bound by its own previous decisions

Examples of Departure in Criminal Cases

> Knuller v Dpp
The HoL refused to overrule an earlier decision despite controversy
> R v Shivpuri 1986
The HoL overruled its own decision signalling a shift in its approach to criminal
cases
> R v Howe 1987
Duress as a defence to murder was ruled out overturning an earlier decision

Practice Statement in Civil Cases

> British Railways v Herrington 1972
Overturned Addie v Dumbreck 1929 signalling changs in occupied liability
laws (premises liability laws), defining the legal responsibilities of property
owners or occupants for injuries on their property examples include slip and fall
accidents. These laws may vary by location.
> Murphy v Brentwood District Council 1990
Overruled Anns v Merton London Borough Council 1977 to restore certainty
to negligence law
> Austin v Mayor & Burgesses of the London Borough of Southwark 2010
Demonstrated the cautious use of the practice statement in statutory
interpretation
> Knauer v Ministry of Justice 2016
Highlighted the importance of precedents for consistency in the law bu also
showed that the practice statement can be invoked when the earlier decision is
illogical or results in unfair outcomes and when there has been a significant
change in the legal landscape

The CoA vertical precedent in Civil Cases

The CoA is subject to vertical precedent meaning it must adhere to decisions of
the HoL. Lord Denning, a creative and unconventional English judge notably
argued that the CoA should have the same freedom from binding precedent as
the HoL. An example of this challenge is Cassell & Co LTD v Broome 1972
where Lord Denning departed from HoL guidance on awarding damages.
- The HoL clarified Miliangos v George Frank (Textiles) LTD that the
CoA cannot disregard a precedent merely because societal conditions
have evolved.
- Courts bound by the rule of precedents must accept binding decisions
from higher tiers in the legal hierarchy as emphasised by Lord Simmone.
- The CoA reaffirmed this principle in the WB v W DC 2018 which
involved mental health issues and an appeal against a local authority
decision.
- In this instance the CoA determined that changes in the culture were not
sufficient justification for rejecting a HoL ruling unless later legislation
had significantly modified the established legal principle.

Horizontal precedents in civil cases

- CoA and lower courts handle a substantial volume of cases and
necessitating consistency in legal decisions because of the overwhelming
volume of cases, Lord Denning considered modifying the vertical
precedent rules in the CoA
- Failing to adhere to its own previous decisions would lead to legal
confusions and introduce uncertainty
 - In the civil division of CoA, the core precedent principle is to follow its
own previous rulings
- Lord Green MR outlined exceptions to this rule in the Young V Bristol
Aeroplane

The CoA exempted from following their own precedents

1. There are conflicting decisions
In situations where 2 CoA cases have comparable material circumstances but
different rulings, the court may select one of the cases to follow.
The court is not required to follow the later case even though in practice it
frequently does.
Although judges who follow the precedent setting approach should not have to
deal with opposing decisions this way, it has happened in certain situations.
An instance of this use of the principle can be seen in National Westminster
Bank v Powney 1990 in which the court was presented with two incompatible
rulings:
Lamb v Rider, Lough v Donovan, both rendered in 1948. The Powney court
adhered to Lamb v Rider. Additionally note the decision made by the CoA
Tiverton Estates LTD v Wearwell 197. To this regard, Law v Jones 1973

2. Conflicts with subsequent HoL decision

To conflict between the later decisions by the HoL and a previous decision by
the CoA. The CoA is required to obey the decision of the HoL regardless of
whether or not it agrees with it, this is known as implied overruling concept at
times
3. Decisions made per incuriam
Decisions rendered per incuriam, the later court is not required to follow a prior
decision rendered in ignorance or without sufficient care. If a CoA decision was
made without knowledge of a rule of law that the court was required to follow
and that could have influenced the decision, will no longer be binding. In the
1955 case of Morelle v Wakeling (Raymonf Evershed) MR provided an
explanation of the per incuriam rule.

A further possible exception

Another exception to precedent rule arises when a CoA decision conflicts with
an earlier HoL decision
 - The situation occurred in Miliangos v George Frank involving a conflict
between the CoA decision and HoL, Havanah Ruling.
- Havanah asserted that judgements in UK courts must be in sterling but
Schorsch Meier Gmbtt v Hennin 1975 by Lord Denning challenged this
based on changing commercial conditions and the treaty of Rome.
- Mr Justice Bristow initially felt compelled to follow Havana, stating that
the rule could only be altered by statute or HoL.
- Miliangos appealed to the CoA where Lord Denning argued that the
Schorsch Meier Gmbtt v Hennin was binding on the lower courts and the
CoA itself
- The case was eventually heard by the HoL In 1976 which concluded that
CoA had erred by not following Havanah and that it should be overruled
- Lord Cross maintained that both Mr Justice Bristow and CoA should
have followed HoL rather than a later CoA ruling.

Should the CoA be free to depart from it’s own earlier decisions
- After the 1966 HoL practice statement Lord Denning led a campaign to
free the CoA from being strictly bound by its own past decisions.
- Lord Denning believed this was separate from whether the CoA should
still adhere to HoL decisions
- In Gallie v Lee 1969, Lord Denning argued that CoA should not be
unconditionally constrained by its previous rulings contending that this
was a self imposed limitation by the judiciary
- Lord Denning’s main concern was that the rule in Young v Bristol
Aeroplane would force the CoA to maintain a flawed principle or
precedent until the HoL could rectify it.
- The debate over horizontal precedent in the CoA was resolved in Davis v
Johnson 1978, in this case Lord Denning formed a full court and the
majority held that the Domestic violence and Matrimonial proceedings
Act 1976 protected a female cohabitee even if she was a joint tenant or
owner. Lord Denning acknowledged that this went against horizontal
precedent but argued that CoA should be allowed to depart from a
previous decision if it believes it was wrong. The case was appealed to
the HoL which overruled previous decisions but reaffirmed the rule from
the Bristol Aeroplane as binding on The CoA.
- Lord Denning’s approach faced explicit disapproval from the HoL as
articulated by Lord Diplock.
 - Lord Denning later referred to Davis v Johnson as a humiliating defeat
and a “crushing rebuff” in his memoirs after retiring.

Horizontal Precedents in the CoA (criminal division)

- Precedents in the criminal division is generally similar to that in the civil
division however the criminal division may take a more flexible approach
to precedent when it believes that a precedent has misapplied the law, this
flexibility is due to the serious nature of cases in the criminal division
which can impact the liberty of citizens and have a significant social
consequence.
- Lord Goddard CJ in the case of R v Taylor 1950 provided guidance on
how this flexibility operates.
- Normally, the principles in Young v Bristol apply but the court also has a
wider power to depart from precedent.
- If the court decides to depart from a previous decision a full court is
essential for the decision
- The power to depart from precedent should be exercised in favour of the
citizens emphasising the importance of protecting individual rights.