DOCTRINE OF PRECEDENT
Essential Reading: Learning Legal Rules, Chapter 5 and 6 ; Twining and Miers ,How to Do things
With Rules chapter 8 , Taylor’s Article plus the precedent chapter from ANY of the other suggested texts in
your syllabus document.
A. INTRODUCTION TO PRECEDENT
What is the doctrine of precedent?
 Precedent to a lawyer is much the same as precedent to anyone
 How later cases are affected by earlier cases in the legal system
 General principle like should be treated alike
 Precedents may be binding or persuasive – this depends on court hierarchy and the
circumstances of the case
 Precedents may be avoided in a case which is sufficiently different
Critical issues
 How significant does case law remain given the increasing importance of statutes?
 Note that precedent relaxed in certain areas of law eg child law
 Do the ‘rules’ of precedent constrain judges’ decisions in any real way?
 Remember that there are other theories about why judges make their decisions
 Should judges be free to disregard earlier cases?
 Does precedent produce: justice? fairness? efficiency?
Benefits and drawbacks of precedent include:
 Notions of equity/justice - similar cases should be treated in the same way
 Promotes certainty
 Relies on the idea of decisions being promoted from the top of the system, therefore decisions made
by the ‘best’ judges are perpetuated and guide the lower courts
 Makes life easier for lawyers?
BUT:
 Makes life harder for lawyers!
 Does it work properly? What do we mean by ‘properly’?
 May impede the proper development of the law - places undue stress on the past
 Bad rulings are perpetuated - Judges can only rule on the cases before them - do we trust the
judges?
 Gives false appearance of coherence to the system
P. Goodrich, Reading the Law (1987) p. 127:
“...legal precedent...refers to the priority of previous decisions over the judgment of the contemporary
issue of dispute or accusation. In this general sense precedent is the privileging of the past over the
present, a respect for continuity or tradition as justification for the exercise of...legal power...In its
broadest sense precedent is based not so much upon logic or reason as upon the repetition of a
discourse or way of life or mode of belonging.”
Essential ingredients of precedent
1 A system of law reporting
2 A hierarchy/ranking order of courts
3 A system of extracting a main binding principle of a case (ratio)
Definitions of ratio decidendi:
Michael Zander: "A principle of law which decides a case, in the light of or in the context of the
material facts”.
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Cross: “Any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his
decision, having regard to the line of reasoning adopted by him.”
Definition of obiter: MacCormick, Legal Reasoning and Legal Theory:
“statements of opinion upon the law and its values and principles in their bearing on the instant decision,
statements which in some way go beyond the point or points necessary to be settled in deciding the
case.”
Stare Decisis and precedent
 Stare decisis = system of binding precedent -”Stand by what has been decided”
 Narrower than doctrine of precedent which includes both binding and persuasive precedents
 Only the ratio of a case can ever be binding
 Obiter, no matter what the court, can only be persuasive (the higher the court, the more persuasive
it is)
 A court is never bound by a ratio from a lower court
B. PRECEDENT IN THE HOUSE OF LORDS
1. The old position: Beamish v. Beamish (1861) 9 HLC 274 – R v Millis
London Tramways Co v LCC [1898] AC 375, per Lord Halsbury: “I do not deny that cases of
individual hardship may arise, and there may be a current of opinion in the profession that such and such
a judgment was erroneous; but what is the occasional interference with what is perhaps abstract justice
as compared with the inconvenience – the disastrous inconvenience – of having each question subject to
being re-argued and the dealings of mankind rendered doubtful by reason of different decisions, so that
in truth and in fact there would be no final court of appeal.”
2. The Practice Statement [1966] 1 WLR 1234
“… Too rigid adherence to precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law…
This announcement is not intended to affect the use of precedent elsewhere than in this House.”
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The House of Lords “normally” bound by its own previous rulings, but may depart “when it appears
right to do so”
House of Lords has discretion to disregard precedent
No strict rules as to when they will do this
But can we draw on what we know about the senior judiciary to deduce how they will exercise this
discretion?
Can we draw any conclusions about the judges from their use of the Practice Statement?
Note: Departing or overruling?
 Practice Statement used expression “depart from”
 But per Lord Simon, Miliangos v George Frank Textiles [1975] 3 All ER 801:
 “I say ‘overrule’ expressly. It is better to avoid euphemisms like ‘depart from’. A wise decision is
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more likely to be achieved if the reality is faced.”
See Yorke Motors v Edwards [1982] 1 All ER 1024 - suggested the ruling in Jacobs v Booth’s Distillery
(1901) 85 LT 262 might be revived if conditions changed
3. Consideration of the Practice Statement – some examples
(a) Liability to a child trespasser
British Railways Board v Herrington [1972] 1 All ER 749 (Addie v Dumbreck [1929] AC 358):
Per Lord Reid: “…it appears to me that no satisfactory solution can be found without a re-examination of
the whole problem and a reconsideration by this House of its decision in Addie’s case…we are confronted
with the choice of following Addie and putting the clock back or drastically modifying the Addie rules. It
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has been suggested that such a modification can be achieved…without actually overruling any part of the
decision. I do not think that is possible…”
(b) Judgment in what currency
Miliangos v George Frank Textiles [1976] - Havana Railways [1960] 2 All ER 332
Per Lord Wilberforce: “…once a clear conclusion is reached as to what the law now ought to be, declaration of it
by this House is appropriate. The law on this topic is judge-made; it has been built up over the years from case
to case. It is entirely within this House’s duty … to give the law a new direction in a particular case where, on
principle and in reason, it appears right to do so. I cannot accept the suggestion that because a rule is longestablished only legislation can change it…
(c) Public interest and disclosure
Conway v Rimmer [1967] 2 All ER 1260 - Duncan v Cammel Laird [1942] 1 All ER 587
(d) Liability for pure economic loss
Murphy v Brentwood – Anns v Merton London Borough
(e) Criminal law cases
Practice Statement: “especial need for certainty”
Shaw v DPP [1961] - ‘conspiracy to corrupt public morals’ - R v Knuller [1972] - 7 member house:
 4 judges stated that departing in a criminal case could only happen with ‘very good reason’; 3 said need for
certainty overrode issue of how mistaken previous decision was; could be used if real uncertainty as to
whether offence exists at all
 Per Lord Reid (who had dissented in Shaw): “…our change of practice in no longer regarding previous
decisions of this House as absolutely binding does not mean that whenever we think a previous decision was
wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is
some very good reason before we so act.”
Why especial need for certainty?
Per Lord Hailsham (obiter) in R v Cunningham [1981] - would not have departed because “a number of persons
would have been executed when they ought only to have been convicted at common law of manslaughter…”
(f) Attempting the impossible
Haughton v Smith – handling goods
The Criminal Attempts Act 1981
 “A person may be guilty of attempting to commit an offence even though the facts are such that the
commission of the offence is impossible.”
 Section 6 abolished the common law offence of attempt and replaced it with the Act
Anderton v Ryan – ‘stolen’ TV
R v Shivpuri – possession of ‘powder’
 Lord Bridge: examined matter as if Anderton v Ryan had not existed - concluded was guilty
 Decided it was indistinguishable
 Practice statement could be used because:
–“if a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the
better”
–no one could have relied on the decision
–otherwise 1981 Act rendered meaningless
4. When is use of the Practice Statement appropriate according to the judges?
Food Corporation of India v Antclizo Shipping [1988] 2 All ER 513
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if reasoning and decision both wrong
would directly affect the case in hand
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Jones v SecState for SS [1972] 1 All ER 145 considered Re Dowling [1967] 1 AC 725, per Lord Reid: “…the
typical case for reconsidering an old decision is where some broad issue is involved, and it should only be in rare
cases that we should reconsider questions of statutes...”
Fitzleet Estates v Cherry [1977] 3 All ER 996, per Lord Wilberforce: “Nothing could be more undesirable than to
permit litigants, after a decision has been given by this House with all appearance of finality to return to this
House in the hope that a differently constituted committee might be persuaded to take the view that its
predecessors rejected… it requires much more than doubts as to the correctness of such opinions to justify
departing...”
Alan Paterson The Law Lords (1982): analysed Lord Reid’s consideration of the Practice Statement:
 Should be used sparingly
 not where it would interfere with ‘legitimate expectations’ in entering contracts etc
 not in construction of statutes or documents
 not if unforeseeable consequences
 not if precedent merely wrong
 yes if needed for rectification of uncertainty
 yes if based on unjust or outmoded conditions
Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, Lord Scarman: “… the House must be
satisfied not only that adherence to the precedent would involve the risk of injustice and obstruct the proper
development of the law, but also that a judicial departure by the House from the precedent is the safe and
appropriate way of remedying the injustice and developing the law. The possibility that legislation may be the
better course is one which, though not mentioned in the statement, is one which the House will not overlook…
Provided, however, due attention is paid to the dangers of uncertainty on certain branches of the law (especially
the criminal law) the House, as it has already in a number of cases made clear, will if it thinks it right, depart
from a previous decision whether the decision is ancient or modern and whether the point of law arises on the
construction of a statute or in the judge-made common law or equity.”
5. Conclusion
The House of Lords can depart from (or overrule) its own previous rulings whenever they want to... but they
don’t often want to! They are more likely to do so for reasons of social or economic change but might also do so
exceptionally simply because they have previously got it wrong …but that creates problems of uncertainty.
C. PRECEDENT IN THE COURT OF APPEAL
1. Young v Bristol Aeroplane Co. Ltd: The Court of Appeal binds itself except if:
 there are two conflicting authorities from Court of Appeal (CA may choose which to follow); or
 later conflicting authority from House of Lords (CA must follow House of Lords); or
 earlier judgment was per incuriam (CA may follow the original uncited authority)
Morelle v Wakeling -
Duke v Reliance Systems
Practice Statement does not apply to CA
2. Extensions to Young v Bristol Aeroplanes
 Criminal Division technically bound in the same way as the Court of Appeal Civil Division BUT:
– Tendency to look on precedent less rigidly in criminal cases
– Construe in favour of the individual, especially if liberty at stake
– in cases where there is no right of appeal to the House of Lords
 if intervening decision is from the Privy Council rather than the House of Lords:
 Re Polemis [CA] - The Wagon Mound [PC]
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3. Example: Protection from Domestic Violence
The Domestic Violence and Matrimonial Proceedings Act 1976
 Section 1(1)(c) gives the court power to grant orders “...excluding the other party from the matrimonial
home...”
 Section 1(2) says this “shall apply to a man and a woman who are living with each other in the same
household as husband and wife...and any reference to the matrimonial home construed accordingly.”
Davis v Johnson:
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did section 1 DVA 1976 allow exclusion from the family home of someone with a proprietary interest in it?
were the CA bound by two previous decisions (B v B and Cantliff v Jenkins) interpreting this section?
Could Hansard be used to help determine Parliament’s intention?
– Per Sir George Baker, P: CA not bound if previous decisions had circumvented recent clearly expressed
intention of Parliament
– Per Shaw LJ: Normally bound but stare decisis could be relaxed to protect victims of violence
– Per Lord Denning MR: CA not bound because the Court of Appeal should be free to depart in the same
way as HL
1. No rule about precedent is a rule of law
2. Nothing said in HL about practice in CA can be binding on CA
3. “Except for this action of ours, the law would have been regarded as settled… instead of rebuking us
the House of Lords should be grateful to us for giving them the opportunity of considering these
decisions.”
Per Lord Diplock: “In my opinion this House should take the opportunity to reaffirm expressly, unequivocally and
unanimously that the rule laid down in the Bristol Aeroplanes case as to stare decisis is still binding on the Court
of Appeal.”
4. Is the Court of Appeal bound by the House of Lords?
CA should be bound the ratio of any House of Lords case but Lord Denning tried to maintain that CA should be
free to depart
– Rookes v Barnard - Broome v Cassell (the ‘per incuriam campaign’)
– Havana Railways - Schorsch Meier (the ‘lapsed rule’ campaign)
House of Lords maintain that only they should be able to change the law in the interests of certainty
(a) Per incuriam: Broome v Cassell
CA: HL decision in Rookes v Barnard not applied - CA argued it was per incuriam
Per Lord Hailsham, HL: “I am driven to the conclusion that when the Court of Appeal described the decision as
per incuriam they really only meant that they did not agree with it… It is necessary for each tier, including the
Court of Appeal, to accept loyally the decisions of the higher tiers…”
(b)
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Lapsed rule: Schorsch Meier GmbH v Hennin 1974
CA courts can now make an award of specific performance in a contract to pay money - Beswick v Beswick
the effect of the incorporation of art.106 Treaty of Rome by the European Communities Act 1972
Per Lord Denning: “Why have we in England insisted on a judgment in sterling and nothing else? It is, I
think, because of our faith in sterling. It was a stable currency, which had no equal. Things are different
now. Sterling floats in the wind. It changes like a weathercock with every gust that blows. So do other
currencies. This change compels us to think again about our rules.”
Per Lawton LJ: “I am, however, a timorous member of this court. I stand in awe of the House of Lords…It is
my duty to apply the law, not to reform it.”
Miliangos v George Frank (Textiles) Ltd - Bristow J’s dilemma:
“...the rule of law that my judgment can only be expressed in sterling is still of full force and effect, since
Parliament has not altered it, nor has the House of Lords itself under its 1966 declaration. Whether I think the
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rule to be good, bad or indifferent, I am bound to apply it, and for the purpose of this judgment there is no point
in expressing my view of the merit or otherwise of the rule…”
Lord Denning’s view: “Whether [the decision in Schorsch Meier was] right or wrong, it seems to me that, once
this court has given a decision on it, all lower courts should follow the decision unless and until reversed by the
House of Lords. In that way any embarrassment can be avoided…”
The House of Lords’ view, per Lord Wilberforce: “ It is clear that some distortion of the judicial process has been
brought about…...It has to be reaffirmed that the only judicial means by which decisions of this house can be
reviewed is by this House itself, under the declaration of 1966. Whether it can or should do so is a difficult
question…”
Per Lord Simon of Glaisdale: “It is the duty of a subordinate court to give credence and effect to the decision of
the immediately higher court, notwithstanding that it may conflict with the decision of a still higher court…Any
other course is not only an invitation to legal chaos but in effect involves a subordinate court sitting in judgment
of its superior court.”
D. PRECEDENT AND THE LAW REPORTS
1. Affirmed and reversed
 Both refer to the judgment of the appeal court in respect of the judgment of a lower court in respect of the
same case
 Affirmed - the appeal court agrees and confirms the judgment
 Reversed - the appeal court disagrees and overturns the judgment
 Neither denote an issue of precedent
 Both could be used in conjunction with another term relating to a previous case
2. Approved and overruled
 Where a court considers a precedent which is relevant but not binding (eg from a lower court or obiter)
 Approved: the court agrees with the precedent and does the same
 Overruled: the court considers the precedent is wrong and therefore should be got rid of
 A court cannot (?) overrule a binding precedent (might distinguish instead to avoid applying it)
 If a case is overruled it is extinguished for precedent purposes
 Disapproved a less drastic alternative
3. Applied and distinguished
 Where a later court considers itself bound by a previous judgment
 Applied: the material facts are sufficiently similar and therefore uses the same reasoning in the present case
 Distinguished: the material facts are not sufficiently similar and therefore the court is free to use other
reasoning
Summary: Twining and Miers
1. If the precedent is a ratio of a superior court it must be applied if it cannot be distinguished
2. if the precedent is a ratio from the same court, it must usually be followed, subject to exceptions
3. if the precedent is a ratio from a lower court, or obiter from any court, the court may choose to follow it if it
wishes
E. PRECEDENT IN ACTION
Critical reading of caselaw:
 Things to note when reading a case:
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– What court?
– What is(are) the main legal issue(s)?
– What is the decision? (in the narrow sense: outcome)
– Is the ruling unanimous or is there a dissent?
– What reasons does the judge use to justify the conclusions reached?
– What facts seem to be material? (ie inform the reasoning which leads to the decision)
Also look for:
– Signs of judicial bias
– Any obiter statements which might be of relevance
– Logic (or lack of it) in the reasoning
– If there is a dissent, whether this has validity
– Whether previous precedents are overtly used/distinguished
Finding the ratio:
 Note: Twining and Miers and the ‘hunt for buried treasure’
 Ratio = “the proposition of law which decides the case, in the light of or in the context of the material facts.”
(Zander)
 WHY did the outcome happen?
 This will involved some sort of explanation of the case
 You are looking for the legal reasoning, tied to your view of which facts are material
 The ratio should be expressed as a principle possessing generality (ie capable of being applied later)
 Remember legal reasoning which does not decide the case cannot be ratio – it will be obiter
Distinguishing ratio from obiter:
 Ask yourself: did this line of reasoning affect the outcome?
 Look for the classic signs of obiter:
– “If the situation had been this, then…”
– “In other cases it might be necessary to look at things differently…”
– “I do not have to make a finding on this…”
– “If I had not been bound by the ruling in…”
 Link to the material facts: obiter statements will not relate to the material facts
Fisher v. Bell. [1961] 1 Q.B. 394) Divisional Court. Lord Parker C.J., Ashworth and Elwes JJ.
CASE STATED by Bristol justices: On December 14, 1959, an information was preferred by Chief Inspector
George Fisher, of the Bristol Constabulary, against James Charles Bell, the defendant, alleging that the defendant,
on October 26, 1959, at his premises in The Arcade, Broadmead, Bristol, unlawfully did offer for sale a knife which
had a blade which opened automatically by hand pressure applied to a device attached to the handle of the knife
(commonly referred to as a "flick knife") contrary to section 1 of the Restriction of Offensive Weapons Act, 1959.
The justices heard the information on February 3, 1960, and found the following facts: The defendant was the
occupier of a shop and premises situate at 15-16, The Arcade, Broadmead, at which premises he carried on
business as a retail shopkeeper trading under the name of Bell's Music Shop. At 3.15 p.m. on October 26, 1959,
Police Constable John Kingston saw displayed in the window of the shop amongst other articles a knife, behind
which was a ticket upon which the words "Ejector knife - 4s." were printed. The words referred to the knife in
question. The police constable entered the shop, saw the defendant, and said he had reason to believe it was a
flick knife displayed in the shop window. He asked if he might examine the knife. The defendant removed the knife
from the window and said he had had other policemen in there about the knives. The constable examined the knife
and pursuant to the invitation of the defendant took it away from the premises for examination by a
superintendent of police. Later the same day he returned to the defendant's premises and informed him that in his
opinion the knife was a flick knife. The defendant said "Why do manufacturers still bring them round for us to sell?"
The constable informed the defendant that he would be reported for offering for sale a flick knife and the
defendant replied "Fair enough."
LORD PARKER C.J. read section 1 (1) of the Restriction of Offensive Weapons Act, 1959, stated the facts and
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continued: The sole question is whether the exhibition of that knife in the window with the ticket constituted an
offer for sale within the statute. I confess that I think most lay people and, indeed, I myself when I first read the
papers, would be inclined to the view that to say that if a knife was displayed in a window like that with a price
attached to it was not offering it for sale was just nonsense. In ordinary language it is there inviting people to buy
it, and it is for sale; but any statute must of course be looked at in the light of the general law of the country.
Parliament in its wisdom in passing an Act must be taken to know the general law. It is perfectly clear that
according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an
invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract. That is clearly
the general law of the country. Not only is that so, but it is to be observed that in many statutes and orders which
prohibit selling and offering for sale of goods it is very common when it is so desired to insert the words "offering
or exposing for sale," "exposing for sale" being clearly words which would cover the display of goods in a shop
window. Not only that, but it appears that under several statutes - we have been referred in particular to the Prices
of Goods Act, 1939, and the Goods and Services (Price Control) Act, 1941 - Parliament, when it desires to enlarge
the ordinary meaning of those words, includes a definition section enlarging the ordinary meaning of "offer for
sale" to cover other matters including, be it observed, exposure of goods for sale with the price attached.
In those circumstances I am driven to the conclusion, though I confess reluctantly, that no offence was here
committed. At first sight it sounds absurd that knives of this sort cannot be manufactured, sold, hired, lent, or
given, but apparently they can be displayed in shop windows; but even if this - and I am by no means saying it is is a casus omissus it is not for this court to supply the omission. I am mindful of the strong words of Lord Simonds
in Magor and St. Mellons Rural District Council v. Newport Corporation. In that case one of the Lords Justices in the
Court of Appeal had, in effect, said that the court having discovered the supposed intention of Parliament must
proceed to fill in the gaps - what the Legislature has not written the court must write - and in answer to that
contention Lord Simonds in his speech said: "It appears to me to be a naked usurpation of the legislative function
under the thin disguise of interpretation."
Approaching this matter apart from authority, I find it quite impossible to say that an exhibition of goods in a shop
window is itself an offer for sale. We were, however, referred to several cases, one of which is Keating v. Horwood,
a decision of this court. There, a baker's van was being driven on its rounds. There was bread in it that had been
ordered and bread in it that was for sale, and it was found that that bread was under weight contrary to the Sale of
Food Order, 1921. That order was an order of the sort to which I have referred already which prohibited the
offering or exposing for sale. In giving his judgment, Lord Hewart C.J. said this [FN24]: "The question is whether
on the facts there were, (1) an offering, and (2) an exposure, for sale. In my opinion, there were both." Avory J.
said [FN25]: "I agree and have nothing to add." Shearman J., however, said [FN26]: "I am of the same opinion. I
am quite clear that this bread was exposed for sale, but have had some doubt whether it can be said to have been
offered for sale until a particular loaf was tendered to a particular customer." There are three matters to observe
on that case. The first is that the order plainly contained the words "expose for sale," and on any view there was
an exposing for sale. Therefore the question whether there was an offer for sale was unnecessary for decision.
Secondly, the principles of general contract law were never referred to, and thirdly, albeit all part of the second
ground. the respondent was not represented and there was in fact no argument. I cannot take that as an authority
for the proposition that the display here in a shop window was an offer for sale.
The other case to which I should refer is Wiles v. Maddison. [FN27] I find it unnecessary to go through the facts of
that case, which was a very different case and where all that was proved was an intention to commit an offence
the next day, but in the course of his judgment Viscount Caldecote C.J. said [FN28]: "A person might, for instance,
be convicted of making an offer of an article of food at too high a price by putting it in his shop window to be sold
at an excessive price, although there would be no evidence of anybody having passed the shop window or having
seen the offer or the exposure of the article for sale at that price." Again, be it observed, that was a case where
under the Meat (Maximum Retail Prices) Order, 1940, the words were "No person shall sell or offer or expose for
sale or buy or offer to buy." Although the Lord Chief Justice does refer to the making of an offer by putting it in the
shop window, before the sentence is closed he has in fact turned the phrase to one of exposing the article. I
cannot get any assistance in favour of the prosecutor from that passage. Accordingly, I have come to the
conclusion in this case that the justices were right, and this appeal must be d
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Precedent in Action: additional notes on the case of Fisher v Bell
Fisher v. Bell. [1961] 1 Q.B. 394) Divisional Court. Lord Parker C.J., Ashworth and Elwes JJ.
LORD PARKER C.J. read section 1 (1) of the Restriction of Offensive Weapons Act, 1959,
stated the facts and continued: The sole question is whether the exhibition of that knife in the
window with the ticket constituted an offer for sale within the statute.
Here Lord Parker appears to identify what he considers to be the main legal issue. This could be
posed as a question: “Does the exhibition of a knife in a window with a price ticket on it constitute
an offer for sale contrary to the Restriction of Offensive Weapons Act 1959?” (Remember that in
more complex cases you will not necessarily be able to reduce the legal issue to one question:
there may be several linked questions).
By reading later in the judgment, we are able to answer this question “No”. In terms of seeking
the ratio, we are looking for the reasons why this question was answered this way. In other
words, we are completing a statement “the exhibition of a knife in a window with a price ticket on it
does not constitute an offer for sale contrary to the Restriction of Offensive Weapons Act 1959,
because…” (Again, remember this is a simple case).
I confess that I think most lay people and, indeed, I myself when I first read the papers, would be
inclined to the view that to say that if a knife was displayed in a window like that with a price
attached to it was not offering it for sale was just nonsense. In ordinary language it is there inviting
people to buy it, and it is for sale; but any statute must of course be looked at in the light of the
general law of the country. Parliament in its wisdom in passing an Act must be taken to know the
general law. It is perfectly clear that according to the ordinary law of contract the display of an
article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer
for sale the acceptance of which constitutes a contract. That is clearly the general law of the
country.
Here, the highlighted statements seem contributory to the reasoning in the following way:
1. an ordinary meaning cannot override the legal meaning of a word (we will look at this in more
detail under the topic of statutory interpretation);
2. Parliament knows the general law;
3. the law on this is that the action here is an invitation to treat rather than an offer for sale.
Not only is that so, but it is to be observed that in many statutes and orders which prohibit selling
and offering for sale of goods it is very common when it is so desired to insert the words "offering
or exposing for sale," "exposing for sale" being clearly words which would cover the display of
goods in a shop window. Not only that, but it appears that under several statutes - we have been
referred in particular to the Prices of Goods Act, 1939, and the Goods and Services (Price
Control) Act, 1941 - Parliament, when it desires to enlarge the ordinary meaning of those words,
includes a definition section enlarging the ordinary meaning of "offer for sale" to cover other
matters including, be it observed, exposure of goods for sale with the price attached.
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This seems to be an example of obiter: that if the wording of the statute had contained the words
“expose for sale” the outcome would have been different. This is significant in two ways:
1. it may provide a precedent (of persuasive value only) in a later case on interpretation of a
statute including the words ‘expose for sale’;
2. it helps define the scope of the material facts: if the decision would have been different if the
phrase ‘expose for sale’ had been included, then the judge must consider its omission to be
material.
In those circumstances I am driven to the conclusion, though I confess reluctantly, that no offence
was here committed.
This is the decision in the sense of the outcome – in other words the ‘answer’ to our legal issue
question posed above.
At first sight it sounds absurd that knives of this sort cannot be manufactured, sold, hired, lent, or
given, but apparently they can be displayed in shop windows; but even if this - and I am by no
means saying it is - is a casus omissus it is not for this court to supply the omission. I am mindful
of the strong words of Lord Simonds in Magor and St. Mellons Rural District Council v. Newport
Corporation. In that case one of the Lords Justices in the Court of Appeal had, in effect, said that
the court having discovered the supposed intention of Parliament must proceed to fill in the gaps what the Legislature has not written the court must write - and in answer to that contention Lord
Simonds in his speech said: "It appears to me to be a naked usurpation of the legislative function
under the thin disguise of interpretation."
This statement about the role of judges in relation to interpreting parliament’s words is a
fundamental issue in the topic of statutory interpretation (see later in the syllabus).
Approaching this matter apart from authority, I find it quite impossible to say that an exhibition of
goods in a shop window is itself an offer for sale. We were, however, referred to several cases,
one of which is Keating v. Horwood, a decision of this court. There, a baker's van was being
driven on its rounds. There was bread in it that had been ordered and bread in it that was for sale,
and it was found that that bread was under weight contrary to the Sale of Food Order, 1921. That
order was an order of the sort to which I have referred already which prohibited the offering or
exposing for sale. In giving his judgment, Lord Hewart C.J. said this [FN24]: "The question is
whether on the facts there were, (1) an offering, and (2) an exposure, for sale. In my opinion,
there were both." Avory J. said [FN25]: "I agree and have nothing to add." Shearman J., however,
said [FN26]: "I am of the same opinion. I am quite clear that this bread was exposed for sale, but
have had some doubt whether it can be said to have been offered for sale until a particular loaf
was tendered to a particular customer." There are three matters to observe on that case. The first
is that the order plainly contained the words "expose for sale," and on any view there was an
exposing for sale. Therefore the question whether there was an offer for sale was unnecessary for
decision. Secondly, the principles of general contract law were never referred to, and thirdly, albeit
all part of the second ground. the respondent was not represented and there was in fact no
argument. I cannot take that as an authority for the proposition that the display here in a shop
window was an offer for sale.
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Here we see the way in which Lord Parker deals with the precedent of Keating v Horwood:
1. although he doesn’t articulate it specifically, he highlights the lack of clarity in the judgement of
the three different judges in Keating on the question of whether ‘offering for sale’ and
‘exposing for sale’ are the same – judge 1 says ‘they are the same’; judge 2 says ‘I agree’ and
judge 3 says ‘I agree, they are different’.
2. he points out that since the goods were exposed for sale, any ruling on the question of
whether they were also offered for sale can only be obiter because it was not an issue which
needed to be determined.
The other case to which I should refer is Wiles v. Maddison. [FN27] I find it unnecessary to go
through the facts of that case, which was a very different case and where all that was proved was
an intention to commit an offence the next day, but in the course of his judgment Viscount
Caldecote C.J. said [FN28]: "A person might, for instance, be convicted of making an offer of an
article of food at too high a price by putting it in his shop window to be sold at an excessive price,
although there would be no evidence of anybody having passed the shop window or having seen
the offer or the exposure of the article for sale at that price." Again, be it observed, that was a
case where under the Meat (Maximum Retail Prices) Order, 1940, the words were "No person
shall sell or offer or expose for sale or buy or offer to buy." Although the Lord Chief Justice does
refer to the making of an offer by putting it in the shop window, before the sentence is closed he
has in fact turned the phrase to one of exposing the article. I cannot get any assistance in favour
of the prosecutor from that passage.
Again, Lord Parker, in a very polite way, is pointing out the sloppy phrasing of Caldicott J in Wiles
v Madison. The effect of this, he seems to be saying, is that it cannot be relied on as a precedent.
Accordingly, I have come to the conclusion in this case that the justices were right, and this
appeal must be dismissed.
________________________________________________________________
From the above, and remembering that the ratio must be expressed as a rule ‘possessing
generality’, a possible formulation of the ratio is as follows (bearing in mind all the reservations
mentioned in the lecture about ratios not being set in stone):
Under the ordinary law of contract, displaying [an article/a weapon/a flick-knife] with a price tag on
it [in a shop window] is not an offer for sale but merely an invitation to treat.
This ratio can be narrowed by including more material facts, and referring specifically to the
statute in question, or broadened by widening it to any articles, potentially under other statutes.
Finally, in terms of critical reading of case law bear in mind the following points:
1. Although we have identified in terms of ratio the above the ‘overt’ reasoning behind the
decision, remember the work done on the ‘hidden’ reasons behind judicial decision-making
according to the various theories of adjudication covered earlier in the semester.
2. do you agree that the judge should make a ruling which he himself admitted on first reading
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seems ‘just nonsense’ (near the beginning of the judgment)? This is something we will
consider further in the classes on statutory interpretation.
LOOK OUT FOR GHANAIAN CASES SOON IN PART 2
OF THE NOTES
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