No CrossRef data available.
Article contents
Precedent and the Court of Appeal: Lord Denning’s views explored
Published online by Cambridge University Press: 02 January 2018
Extract
Stare decisis provides the framework of certainty in the codeless English legal system. Even since 1966, when the House of Lords announced its power to depart from earlier authority, it has shown great reluctance to do so and has underlined this need for certainty. Given the small number of cases that filter through to the House of Lords, it is, however, the Court of Appeal that plays the vital role in the supervision of the lower courts and in the maintenance of support for the strict theory of binding precedent. Situated at the focal point of our legal system it is responsible, according to Lord Scarman, for its ‘stability, its consistency and its predictability’. Orthodox theory demands that the Court of Appeal, at least in its Civil Division, be bound by its own decisions and look to the House of Lords or Parliament to deal with unsatisfactory law. Yet recently, the Master of the Rolls held that an earlier Court of Appeal decision should, in part, be ignored. It would appear, therefore, that Lord Denning's ‘one man crusade’ (to quote Lord Diplock in Davis v Johnson) against the strict application of stare decisis in the Court of Appeal continues. This article will consider Lord Denning's various pronouncements throughout his career on precedent as it affects the Court of Appeal and will attempt to assess the theoretical justifications of his unorthodox views.
- Type
- Research Article
- Information
- Copyright
- Copyright © Society of Legal Scholars 1981
References
1. The statement was delivered on 26 July 1966. It is reported in [1966] 1WLR 1234.
2. For a recent discussion by the House of Lords of the Practice Statement, see Fitzleet Estates Ltd v Cherry [1977] 3 All ER.
3. In 1978 the number of appeals entered in the House of Lords was 83; in the Court of Appeal Civil Division 1401 and in the Court of Appeal, Criminal Division, 6099.
4. Scarman LJ (as he then was) in Farrell v Alexander [1976] 1 QB 345 at 371.
5. In Ministry of Defence v Jeremiah [1980] 1 QB 87.
6. [1978] 2 WLR 553 at 559.
7. In Jones v Secretary of state [1972] 1 All ER 145 at 149. Cross discusses the various methods the Courts sometimes employ to overcome ‘unfortunate’ precedent in 82 LQR at page 203.
8. A phrase Lord Denning employs with regard to distinguishing in Barrington v Lee [1972] 1 QB 326 at 338.
9. E g in Eastwoods v Herrod [1968] 2 QB 923.
10. See e g his judgment in Davis v Johnson [1978] 1 All ER 841 where at 856 he asserts ‘we should extend the exceptions in Young v Bristol Aeroplane Co when it appears to be a proper case to do so’.
11. 1873-1875.
12. E g Kelly and Co v Kellond (1888) 20 QBD 569; Wynne-Finch v Chaytor [1903] 2 Ch 475.
13. [1944] KB 718.
14. See Cross Precedent in English Law (3rd Edn). D. 35.
15. In view of the working of stare decisis it is difficult to see how this situation could arise. However, it is interesting to note Lord Denning's judgment in Eastwood Ltd v Herrod (see note 9). There he referred to an earlier decision of his own and discovered that what he believed at the time to have been an exercise in distinguishing had, with hindsight in fact produced conflicting decisions. As a result of this reclassification, from distinguished decision to conflicting decision, he was presented with a choice in the instant case.
16. Schorsch Meter GmbH v Hennin [1975] QB 416.
17. Miliangos v George Frank (Textiles) Ltd [1976] AC 443.
18. Though the Latin phrase refers to carelessness rather than ignorance.
19. [1974] 3 WLR 823 at 829.
20. Interestingly, however, Cross believes that an ‘obsolete law’ exception to stare decisis may be used by the higher courts but only in the most extreme cases. See Cross Precedent in English Law (3rd Edn), p. 151.
21. [1976] 1 All ER 129.
22. See note 5 supra.
23. [1959] AC 20 at 53.
24. [1970] 1 QB 580.
25. [1967] P 87.
26. See also Re Holmden's ST [1960] Ch 511, CA, Browning v War Office [1963] 1 QB 750, CA.
27. [1979] ICR 281.
28. At 285.
29. [1907] AC 179.
30. At 184.
31. [1934] 2 KB 206.
32. [1950] AC 361.
33. [1979] 1CR 281 at 288.
34. [1955] 2 QB 379.
35. If this is a good reason for declaring an earlier decision per incuriam then the floodgates are open!
36. See e g Barrington v Lee [1972] 1 QB 326 where Stephenson W felt obliged to follow the previous Court of Appeal decision in Burt v Claude Cousins [1971] 2 QB 416, even though he agreed that the consequences of applying the previous decision was unjust to one of the parties.
37. The Schorsch Meier case was argued by the plaintiff only in the Court of Appeal. Note, however, Lord Simon's comment in Miliangos [1976] AC 443 at 478: ‘the absence of a contrary argument will sometimes make it easier to establish a per incuriam exception’.
38. See Lord Denning in Miliangos [1975] 2 WLR 555 at 565.
39. [1954] Ch 479.
40. [1979] 1CR 281 at 285.
41. [1980] 1 QB 87 at 98.
42. [1978] 2 WLR 182, CA.
43. At 220.
44. At 221 where he states: ‘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 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 late decision of the House of Lords’.
45. [1978] 2 WLR 182 at 193. See also e g Lord Denning's judgments in Gallie v Lee [1969] 2 WLR 901. Dixon v BBC [1979] ICR 281.
46. To paraphrase Brett MR in The Vera Cruz (1880) 9 PD 96.
47. [1968] 1 All ER 283.
48. At 296.
49. [1969] 2 WLR 901.
50. At 925 Salmon LJ asserted ‘the point about the authority of this Court has never been decided by the House of Lords. In the nature of things it is not a point that could ever come before the House for decision’.
51. See Davis v Johnson [1978] 2 WLR 553 at 577.
52. [1975] 1 Ch 146. At 161 he comments ‘I have not been able, however, yet to persuade my brethren - or at any rate, not all of them to agree with this view’.
53. [1977] QB 580.
54. [1969] 2 WLR 901 at 918.
55. [1978] 2 WLR 182 at 207.
56. See Davis v Johnson [1978] 2 WLR 182 at 197.
57. [1971] 1 KB 489.
58. [1971] AC 1005.