Binding precedent and English judicial law-making
David Vong (*)
u... a doctrine which compels judges to
synthesize present decisions (or at least
articulate the reasons for such decisions)
out of the accumulated wisdom (or folly)
of their judicial forebears.,, (1)
INTRODUCTION
It is conceivable that all legal systems follow judicial precedents "for
it is a natural practice of the human mind, whether legal or non-legal,
to accept the same pattern in similar or analogous cases'' (2) : a rational law demands that like cases be treated alike. So by no means is
reliance on judicial precedents a unique feature of English law or other
common law systems. What is unique is that English precedents are
capable of possessing the quality of a proper source of law arid can
bind future judges suitably positioned in the judicial hierarchy unless
overruled or distinguished. Continental judicial decisions are not normally accorded the status of a source of law as such but they can
nevertheless be followed, and in fact often are. But if a Continental
court follows a precedent or if an English court does so ''because a
revered master has uttered it, because it is the right decision, because
it is logical, because it is just, because it accords with the weight of
authority, because it has been generally accepted and acted on, because
it secures a beneficial result to the community'', (3) that is not an application of the doctrine of binding precedent, or stare decisis et quieta
non movere as such. The doctrine of binding precedent requires that
the rule in a relevant previous decision must be followed ''because it is
a previous decision and for no other reason, and it becomes clear that
we cannot be certain that the rule is being followed, unless it is contre
coeur, just as ... obedience to the categoric imperative is discernible
only when something disagreeable is commanded." (4) Hence the compliance with the doctrine of binding precedent is exhibited only when
("') London School of Economics, University of London
(1) L. Blom-Cooper and G. Drewry, Final Appeal (Oxford 1972) at p. 65
(2) A. Goodhart, "Precedent in English and Continental Law", [1934] 50 Law Quarterly
Review 40, 41
(3) M. Radin, "Case Law and Stare Decisis: Concerning Priijudizienrecht in Amerika",
(1933) 33 Columbia Law Review 199, 200
(4) ibid., 200-201
318
a court holds that it must follow a previous rule and that "the conclusion to which the rule constrains it is one which it would not have
reached except for the rule, a conclusion, in other words, of which the
court does not morally approve, which cannot be rested on conscience,
equity or the public welfare.'' (5)
Only in common law systems is the doctrine openly accepted, under
the name of stare decisis or binding precedent. In Continental jurisprudence, as was true of Roman law, emphasis is placed not on any individual case in particular, but rather "on a series or group of cases creating a practice ... [Therefore a principle] is a rule established by practice as contrasted with the English doctrine of a rule established by the
binding authority of an individual case." (6) A relevant English precedent is not ''one which may be used as a pattern; it is one which must
be followed in the subsequent case. It is more than a model; it has
become a fixed and binding rule.'' (7)
The English lawyer has grown accustomed to thinking that the doctrine of binding precedent in the common law demonstrates he "superior
quality of English law.'' (8) But the real difficulty comes when the
English lawyer tries to explain this doctrine to Continental and other
Civil lawyers. Insofar as they find the doctrine obvious, they profess
themselves ''unable to understand how it could be reconciled with reason or justice.'' (9) For the English lawyer who has spent many -years
mastering his craft, it may come "as something of a shock to find that
the Continental jurist, far from envying the English theory of precedent, feels that it is an element of weakness." (10) Lacking any comprehensive code of the Continental types, it may seem contrary to
democratic principles that a handful of English judges should possess
de facto law-making power : legislation might be seen as better effecting the wishes of the people. (11) It is through the operation of binding precedent that the common law ensures that all judicial decisions
become part of the body of English law and are capable of binding
subsequent judges in certain courts. Through the acquisition of "the
accumulated experience of the past" (12) and by binding later courts,
judge-made law provides, on the one hand, for uniformity to a large
(5) ibid., 201
(6) Goodhart, supra, 42-43
(7) ibid., 41
(8) ibid., 43
(9) Radin, supra, 202
(10) Goodhart, supra, 43
(11) Section 12 of the Austrian Civil Code provides that judicial decisions can never have the
force of law and cannot be applied to future disputes.
(12) Lord Lloyd, Introduction to Jurisprudence (London 1979) at p. 821
319
extent, which is one of the most basic demands of justice. On the other
hand, rigid adherence to the doctrine of binding precedent could stultify legal progress.
This article seeks to demonstrate that the doctrine of binding precedent
can indeed marry stability and continuity with adaptability. The rules
which make up this doctrine permit ''new propositions to be established, old ones [to be] discarded in whole or in part, and permit all this
to proceed seemingly on the basis of logical deduction from pre-existing premises." (13) The two basic prerequisites for the operation of
the doctrine are discussed first: an effecient system of law reporting
and a rigid hierarchy of courts. Secondly, it is sought to deal with the
methods of ascertaining the binding part of any precedent, and their
inherent problems. Thirdly, this article looks at the various judicial
techniques employed in avoiding an otherwise binding precedent ; and
fourthly, the values promoted or oppressed by this doctrine are compared.
§1. THE DOCTRINE OF BINDING PRECEDENT
It is of paramount importance that judicial decisions should not be like
"a restricted railroad ticket, good for this day and train only." (14)
Reasons must be given in the judgments if they are to be of any use to
future lawyers. Having said that, old English decisions were merely
based upon the court's sense of justice. They represented the will of
the King and enunciated no legal rules or reasons. Gradually, towards
the nineteenth century, the legal climate changed. The increasing
amount of commercial activity brought with it the desire for predictability and certainty in the law so that businessmen could arrange their
affairs with confidence. On the Continent at the same period, this was
realised by codification, but the English adhered to the common law.
Secondly, the antiquated concern for formal "forms of action" (15)
faded away, thus paving the path for a more coherent common law.
Thirdly, law reporting, the efficient operation of which was vital for
the adoption of a doctrine of binding precedent, was modernised by
the establishment of an incorporated body charged with just this function. (16) Fourthly, the hierarchy of courts as we know it today began
(13) J. Stone, The Province and Function of Law (Sydney 1950) at p. 168
(14) Smith v Allwright 321 US 644, 669 (1944) per Roberts J.
(15) Medieval courts were concerned with the forms and procedures relating to "pleading"
and the bringing of the case within one of the existing writs which inflexibly circumscribed
the forms of action.
(16) In 1865, a private body, the Incorporated Society for Law Reporting in England and
Wales, began the first permanent modern series of officially sanctioned law reports.
320
to take shape and the judicial functions of the House of Lords were
placed in the hands of eminent lawyers. (17) Amidst all these changes
the doctrine of binding precedent took root, and judges sensed the
need to deliver reasoned judgments which could be cited and followed
by later courts. Nevertheless, to this day this doctrine is still not entrenched in legislation. Like the common law, it was made by judges.
Judges created this doctrine and they continue to determine its scope
and application.
A. Law reporting
The importance of accurate and permanent reports of judicial decisions is obvious. The two are intertwined. English judges may take
judicial notice of any precedent, even an unreported one, which is
vouched for by a member of the Bar who was present when the judgment was delivered. Consequently, the theory is that an unreported
decision possesses the same authority as a reported one, but in practice, the former is inaccessible and therefore of little, if any, use to
lawyers. Even on the rare occassions when an unreported case is cited
to a judge and is referred to in his judgment, it cannot be studied by
other lawyers simply because of its inaccessibility. ''This all serves to
add to the inaccessibility of the law not only to the layman - who has
presumably grown accustomed to such a state of affairs - but, paradoxically, even to the lawyer." (18)
Given the importance in England of good and systematic series of law
reports, it may seem odd that there is no official series. Ever since law
reporting began, it has been the responsibility of private enterprises
who decide themselves which cases to publish. The decision rests solely
on the individual reporter concerned, and the only test is one of utility
to the legal profession.
The early Year Books (19) were more akin to manuals of pleadings and
procedure than to law reports, and possess almost no practical use
today. It was only in 1757 that the first resemblance of modern law
reports appeared. Burrow's Reports (20) published cases in the same
format as reports today: headnote, facts, arguments, decision, and
then the judgment. In 1865, publication of the "Law Reports" began.
(17) Today, the legislative and judicial functions of the House of Lords are separate and
independent of one another. Although judges of the House (the Law Lords) can freely
participate in debates in the legislative chamber other Members of the House have no right
to sit on the Bench.
(18) see Report of the Law Reporting Committee (Her Majesty's Stationery Office 1940)
(19) from 1282 to 1537
(20) from 1757 to 1771
321
Although not an official series, they are, the series to which any court
should be referred if a case that is cited is reported in them. The Law
Reports enjoy the advantage that their judgments have been revised by
the judges themselves before publication. This is not an insignificant
exercise when it is realised that, unlike those of many Continental jurisdictions, most judgments, other than those of the House of Lords,
are not reserved. They are delivered off-the-cuff immediately after the
end of oral arguments. Yet many decisions are not reported in the Law
Reports, in which case recourse must be had to other less authoritative
series of reports. (21) The present proliferation of private series of law
reports raises many problems including, inter alia, (i) expense and accomodation ; (ii) the needless duplication of reports in several series ;
(iii) the difficulty of tracing authorities from the growing number of
cases ; (iv) the danger of textual variants between different series, and
inaccuracies in the less authoritative series ; and (v) the overlooking of
important cases. (22)
The suggestion that there should be a monopoly of the right of citation
in courts for a single set of official reports has been rejected because
of the "fundamental fact that the law of England is what it is not
because it has been so reported but because it has been so decided.'' (23) This theory looks good on paper but in practice it is a wellknown fiction since unreported cases are inaccessible. Outside the
"Law Reports", the officially sanctioned (though still private) Weekly
Law Reports publish about 70 per cent of the decisions of the House
of Lords and the Privy Council. (24) But the figure is under 25 per cent
for decisions of the Court of Appeal. So many other cases, in particular those concerning more specialised fields of the law, need to be
searched for in the mass of other less authoritative series which are not
officially sanctioned. Perhaps it is some consolation to say that the
English lawyer has grown accustomed to the proliferation of reported
cases and takes the system for granted. Nevertheless the growing
width, complexity, and technicality ·of the common law demonstrate
genuine cause for concern about the state of law reporting in England.
The lawyer has the duty to cite all relevant authorities to the court, but
he has the perhaps unenviable task of having to ascertain these authorities from a mass of reported English decisions scattered amongst rna-
(21) for instance, All England Law Reports, Reports of Tax Cases, Industrial Relations Law
Reports, etc.
(22) see R. Munday, "New Dimensions of Precedent", (1978) Journal of the Society of
Public Teachers of Law 201
(23) see note 18, supra
(24) see M. Zander, The Law-Making Process (London 1980) at p. 146
322
ny series of law reports, not to mention unreported decisions and other
highly persuasive decisions from the British Commonwealth as well.
B. The hierarchy of courts
The House of Lords sits at the apex of the English hierarchy. The
general rule (25) is that the binding portion of a precedent, that is, the
ratio decidendi, only binds judges sitting in courts that are inferior in
the hierarchy to the court which delivered the precedent. An exception
exists for the Court of Appeal, details of which are considered below.
In no other legal system is the distinction between superior and inferior
courts more marked than in common law systems. The higher the
court the greater is its law-making power. Hence decisions of the House of Lords bind all other courts. Decisions of the Court of Appeal
bind all courts except the House of Lords. Decisions of the High Court
do not bind itself, the Court of Appeal or the House of Lords. At the
very bottom, decisions of county courts and magistrates' courts bind
no courts at all, and so they possess no law-making capacity. It is to
details of this structure that we now turn.
1. The House of Lords
The ratio in a decision of the House of Lords binds all English
courts (26) except itself. But before this exception was introduced, the
House had held in 1898 that it was bound by all its own decisions, (27)
even, for that matter, erroneous ones. Consequently, there was the risk
that an erroneous decision, which continued to bind the House of
Lords itself, would lead to future cases of individual hardship. Nevertheless, it was thought that such "occasional interference with what
[was] perhaps abstract justice" (28) was justified as against the 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 real final court of
appeal." (29) This rule was widely criticised because "to use a House
of Lords precedent to establish the rule that the House is bound by its
own precedents is to argue in a circle.'' (30)
(25) for exceptions, see infra; for example, is a court bound by its own decisions?
(26) " ... the only judicial means by which decisions of this House can be reviewed is by this
House itself, under the declaration of 1966", Miliangos v George Frank (Textiles) Ltd [1976]
AC 443, 459 per Lord Wilberforce
(27) London Tramways v London County Council [1898] AC 375
(28) ibid., 380 per Lord Halsbury
(29) ibid.
(30) D. MacCormick, "Can Stare Decisis be Abolished?", (1966) Juridical Review 196,
196
323
Eventually, in 1966, after almost a century of criticism, the House of
Lords decided to free itself from its shackles and permitted itself the
pleasure to depart from its own previous decisions. The House of
Lords removed its fetters by delivering a Practice Statement, outside
the conduct of any appellate proceedings, which marked a turning
point in the legal history, if not the legal progression, of the House.
Due regard was paid to the essential role of binding precedent :
''Their Lordships regard the use of precedent as an indispensable foundation upon which to
decide what is the law and its application to individual cases. It provides at least some degree
of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis
for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to
injustice in a particular case and also unduly restrict the proper development of the law.
They propose therefore to modify their present practice and, while treating former decisions
of this House as normally binding, to depart from a previous decision when it appears right
to do so." (31)
This relaxation was in part designed to enable the House of Lords to
pay greater attention to decisions of the superior courts in the British
Commonwealth (32) if they differed from pronouncements of the House and, where "it appears right to do so", to "modify the previous
pronouncements when they cease to conform with the social philosophy of the day.'' (33) The potential impact of Commonwealth decisions
was substantial because their highest courts had the ability to overrule
their own decisions thereby bringing about change faster than in England. But is practice this newly-acquired freedom has been very sparingly exercised. In fact it took six years before the House of Lords, for
the first time, expressly overruled one of its earlier decisions. (34)
Their Lordships consider that the mere discovery that one of its earlier
decisions had been wrong does not of itself justify a departure from
it. (35) They have expressed their immense reluctance to overrule their
own decisions in no uncertain terms : ''the typical case for reconsidering an old decision is where some broad issue is involved, and that it
should only be in rare cases that we should reconsider questions of
construction of statutes or other documents.'' (36)The greatly prized
and highly valued and ''distinctive advantage of finality should not be
(31) Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
(32) especially, it was thought, the High Court of Australia, and the Supreme Court of
Canada
(33) Lord Evershed, The Court of Appeal in England (London 1950) at p. 18
(34) British Railways Board v Herrington [1972] AC 877
(35) see Jones v Secretary of State for Social Services [1972] 1 AC 944
(36) ibid., 966 per Lord Reid
324
thrown away by too ready use of the recently declared liberty to depart
from previous decisions" (37) because unless "the cases, first and subsequent, wholly coincide, there may be a doubt which decision ... prevails, and litigants may be encouraged ... to take the chance of an
appeal here, in the hope of procuring a departure." (38)
In spite of their Lordships' own reluctance, two bodies do have the
authority to overrule decisions of the House of Lords, viz., Parliament
by legislation, and the European court. Indeed, the European Communities Act 1972 provides that any question concerning the legal operation of the EEC Treaties or instruments shall be determined ''in accordance with the principles laid down by and any relevant decisions of
the European Court.'' (39)
Further, even if not overruled by judicial or legislative means, the authority of a decision of the House of Lords may nevertheless be
diminished if it is distinguished. (40) Any court in England can distinguish a House of Lords decision by confining it to its narrow facts,
thereby limiting the scope of its authority. In practice, this method was
widely used by the House of Lords itself before 1966 to avoid an
otherwise binding precedent, and is still the most common method
used by lower courts who wish to avoid an otherwise binding precedent.
2. The Court of Appeal
The Court of Appeal "has a duty to apply (that is, is
bound to follow) any decision of the House of Lords
which ... actually settles or covers the particular dispute before the Court" (41)
For a long time there had been no doubt that a ratio in a decision of
the House of Lords bound the Court of Appeal in future cases. But in
1972, the rigidity of this rule was disputed by the Court of Appeal in
Broome v Cassell Co. Ltd. (42) It was one of the stages of the then
Master of the Rolls, Lord Denning's lengthy campaign to free the
(37)
(38)
(39)
(40)
(41)
ibid., 996 per Lord Pearson
ibid., 995 per Lord Wilberforce
section 3(1)
i.e., by confining the decision to the narrow facts of the earlier case; see infra
C. Rickett, "Precedent in the Court of Appeal", [1980] 43 Modern Law Review 136,
137
(42) [1971] 2 QB 354 (Court of Appeal: Lord Denning MR, Lords Justices Salmon and
Phillimore)
325
Court of Appeal of blind subservience to the House of Lords. The
dispute arose over the question whether the Court of Appeal was
bound by a previous decision of the House of Lords in Rookes v
Barnard (43) in 1964. In that earlier case, the Hous of Lords had laid
down three types of circumstances in which exemplary damages could
be awarded. A unanimous Court of Appeal, presided over by Lord
Denning MR, held that the decision of the House in Rookes v Barnard
was per incuriam, that is, the House had overlooked two other relevant
House of Lords decisions. (44) Since the decision was per incuriam, the
Court of Appeal held that it was not binding.
When Cassell v Broome went on appeal to the House of Lords, the
Court of Appeal was firmly rebuffed. (45) In discussing whether the
Court of Appeal could avoid an otherwise binding precedent of the
House of Lords merely by declaring it per incuriam, the Lord Chancellor, Lord Hailsham, reaffirmed in strong language that the House
would not tolerate any disloyalty in the Court of Appeal. Unwavering
hierarchical loyalty was considered more important than judicial individuality:
"it is not open to the Court of Appeal to give gratuitous advice to judges of first instance
to ignore decisions of the House of Lords in this way ... and I hope it will never be necessary
to say so again, that, in the hierarchical system of courts which exists in this country, it is
necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions
of the higher tiers." (46)
Unshaken, Lord Denning MR, in the Court of Appeal, took up the
issue again in Schorsch Meier G.m.b.H. v Henning. (47) the question
was whether the Court of Appeal must follow a House of Lords precedent (48) which had held that an English court could not award a judgment in a foreign currency. Having failed on the per incuriam ground
in Cassell v Broome, Lord Denning used another reason to justify a
departure from a House of Lords precedent. He decided that the old
rule forbidding judgment in a foreign currency was created in the light
of national economic conditions in 1961, and since conditions had
changed by 1974, the rule should be obsolete. "Those reasons for the
rule have now ceased to exist. .. Seeing that the reasons no longer exist,
(43) [1964] AC 1129
(44) E. Hulton & Co. v Jones [1910] AC 20; Ley v Hamilton (1935) 153 LT 384
(45) [1972] AC 1027 (House of Lords: Lord Hailsham LC, Lords Reid, Wilberforce, Diplock and Kilbrandon)
(46) ibid., 1054
(47) [1975] 1 QB 416 (Court of Appeal: Lord Denning MR, Mr Justice Foster; Lord Justice
Lawton dissenting)
(48) Re United Railways of the Havana and Regia Warehouses [1961] AC 1001
326
we are at liberty to discard the rule itself. Cessante ratione legis cessat
ipsa lex.,, (49)
By applying this cessante ratione principle (i.e., a ''changed conditions" rule), he therefore concluded that the old House of Lords rule
was obsolete and no longer bound any court. Lord Justice Lawton,
dissenting, decided that it was improper to depart from the old House
of Lords rule. He admitted that he stood "in awe of the House of
Lords" (50) and, like a true traditionalist, he declared that it was his
"duty to apply the law, not to reform it." (51) This case did not go on
appeal to the House of Lords, but a similar issue arose for the House
of Lords' consideration a year later in Miliangos v George Frank (Textiles) Ltd. (52) Four of the five Law Lords agreed that their old rule
regarding the currency of a judgment should be changed. In this aspect
they agreed with the majority in the Court of Appeal in Schorsch
Meier. But all five went on to concur that the change should be made
by the House of Lords themselves, and certainly not by the Court of
Appeal. Lord Simon rebuked the approach in Schorsch Meier (53) on
the ground that the Court of Appeal in that case had wrongfully applied the cessante ratione principle :
"Since the Court of Appeal is absolutely bound by a decision of the House of Lords ... it
would be surprising if the meaning and application of the maxim 'cessante ratione' were
really that accepted by the majority of the Court of Appeal in Schorsch Meier ... For as such
it would enable any court in the land to disclaim any authority of any higher court on the
ground that the reason which had led to such higher court's formulation of the rule of law
was no longer relevant. A rule rooted in history could be reversed because history is the bunk
of the past. Indeed, taken literally, there is no ground for limiting 'lex' to judge-made law
. . . It would br easy to compile a bulky anthology of authoritative citations to show that
those courts of law which are bound by the rule of precedent are not free to disregard an
established rule of law because they conceive that another of their own devising might be
more reasonable . . . . '' (5:4)
Lord Cross went even further to state that all decisions of the House
of Lords bound the Court of Appeal, regardless of any meaning of
cessante ratione:
(49)
(50)
(51)
(52)
and
(53)
(54)
[1975] 1 QB 416, 425
ibid., 430
ibid.
[1976] AC 443 (House of Lords: Lords Wilberforce, Simon, Cross, Edmund-Davies,
Fraser)
[1975] 1 QB 416
[1976] AC 443, 472
327
"It is not for any inferior court - be it a county court or a division of the Court of Appeal
presided over by Lord Denning - to review decisions of this House. Such a review can only
be undertaken by this House itself under the declaration of 1966." (55)
In view of these very strong remarks from the House of Lords, it may
be that it is settled, at least for the time being, that the Court of
Appeal is definitely bound by all decisions of the House, subject only
to two exceptions, viz., firstly, the Court of Appeal can refuse to follow any statement of the House of Lords which was not the ratio ; and
secondly, the Court of Appeal can freely choose which of two clearly
inconsistent House of Lords decisions to follow. (56)
On the other hand, is the Court of Appeal bound by its own decisions? For a long time, it had been taken for granted that the Civil
Division of the Court of Appeal was so bound. In 1944 in Young v
Bristol Aeroplane Co. Ltd. (57) the Court of Appeal had confirmed
this to be a general rule, but subject to three exceptions :
"(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 a decision of its own which, though not
expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3)
The court is not bound to follow a decision of its own if it is satisfied that the decision was
given per incuriam." (58)
Following the House of Lords' announcement of its Practice Statement (59) in 1966, Lord Denning MR tried to establish the same principle for the Court of Appeal. The dispute was bound to arise. The High
Court has never been bound by its own decisions (60) and the House of
Lords has freed itself of its own fetters. So why should the Court of
Appeal be the only English court to be bound by its own decisions ?
Lord Denning opined that the Court of Appeal was "of course, bound
by the decisions of the House, but I do not think we are bound by
prior decisions of our own, or at any rate, not absolutely bound. We
are not fettered as it was once thought. It was a self-imposed limitation," and therefore it can be removed. "The House of Lords have
done it. So why should not we do likewise?" (61) He gave further
reasons in 1979 in Davis v Johnson: (62)
(55) ibid., 496
(56) Broome v Cassell Co. Ltd., supra, (House of Lords) 1107 per Viscount Dilhorne
(57) [1944] KB 718
(58) ibid., 725 per Lord Greene MR
(59) note 31, supra
(60) see infra
(61) Gallie v Young [1969] 2 Ch 17, 37
(62) [1979] AC 264 (Court of Appeal: Lord Denning MR, Sir George Baker, P., Lord
Justice Shaw; Lords Justices Goff and Cumming-Bruce dissenting)
328
'' ... whilst this court should regard itself as normally bound by a previous decision of the
court, nevertheless it should be at liberty to depart from it if it is convinced that the previous
decision was wrong ... It is said that, if an error has been made, this court has no option but
to continue the error and leave it to be corrected by the House of Lords. The answer is this:
the House of Lords may never have an opportunity to correct the error ; and thus it may be
perpetuated indefinitely, perhaps for ever." (63)
He explained how, in the old days, poverty effectively eliminated the
losing litigant's opportunity to appeal:
"A poor person had to accept the decision of this court because he had not the means to take
it to the House of Lords ... Even today a person of moderate means may be outside the legal
aid scheme, and not be able to take his case higher, especially with the risk of failure
attaching to it." (64)
There were other factors too, apart from monetary considerations,
which influenced the decision to appeal to the House of Lords or not :
" ... there have been many instances where cases have been settled pending an appeal to the
House of Lords ; or for one reason or another, not taken there, especially with claims against
insurance companies or big employers. When such a body has obtained a decision of this
court in its favour, it will buy off an appeal to the House of Lords by paying ample compensation to the appellant. By so doing, it will have a legal precedent on its side which it can use
with effect in later cases ... By such means an erroneous decision on a point of law can again
be perpetuated forever ... So I suggest that we are entitled to lay down new guidelines to
those adopted by the House of Lords in 1966. Whenever it appears to this court that a
previous decision was wrong, we should be at liberty to depart from it if we think it right to
do so." (65)
It may be that Lord Denning's opinion was supported by the House of
Lords' recognition of the danger of injustice if bad decisions had to be
blindly followed. (66) But perhaps the most compelling support is that
''by his judicial oath a judge binds himself to do 'right to all manner
of people after the laws and usages of this Realm'." (67) Where a precedent of the Court of Appeal is found to be erroneous, should the
Court, as a matter of principle, be allowed to correct it? The issue is
really whether "a rigid adherence to what appears to be plainly wrong
conduces to the purity of justice or respect for its administration." (68) The fear is that a strict application of the doctrine of binding precedent to bind the Court of Appeal to its previous decisions
means that the Court of Appeal will be forced to resort to distil!gui-
(63)
(64)
(65)
(66)
(67)
(68)
ibid., 278
ibid.
ibid., 278-281
see Practice Statement, supra
[1979] AC 264, 290 per Sir George Baker P.
ibid., 307 per Lord Justice Shaw
329
shing the indistinguishable. Confusion would be generated and certainty in the law would be lost.
When Davis v Johnson went on appeal to the House of Lords, the
view of the majority of the Court of Appeal was rejected and their
Lordships affirmed that the rule in Young's case continued to bind the
Court of Appeal. (69) Hence the Court of Appeal was not to be as
free as the House of Lords and it could not freely depart from its own
decisions. But why one rule for the House of Lords and another one
for the Court of Appeal? Lord Diplock, in the House of Lords, said
that the House was an appellate court of last resort, so "a balance
must be struck between the need on the one side for the legal certainty
resulting from the binding effect of previous decisions and on the other
side the avoidance of undue restriction on the proper development of
the law.'' (70) But since the Court of Appeal was merely an intermediate appellate court he opined that the latter consideration could be taken care of by appeal to the House of Lords. Lord Salmon said that
he sympathised with Lord Denning's views but expressed his fears that
the law would lose certainty if the Court of Appeal were permitted to
depart from its decisions :
"until such time, if ever, as all his colleagues in the Court of Appeal agree with those views,
stare decisis must still hold the field. I think that this may be no bad thing. Thert are now
as many as seventeen Lords Justices in the Court of Appeal, and I fear that if stare decisis
disappears from that court there is a real risk that there might be a plethora of conflicting
decisions which would create a state of irremediable confusion and uncertainty in the law.
This would do far more harm than the occasional unjust result which stare decisis sometimes
produces but which can be remedied by an appeal to your Lordships' House." (71)
The emphasis is clearly on certainty. Certainty is prized in English law
as the means of "enabling persons to obtain definite advice on which
they can order their affairs.'' (72) The House of Lords, as the final
appellate court, is available to correct any errors of the Court of Appeal therefore obviating the need for the latter to consider a departure
from its own cases. Certainty overrides individuality or creativity and
"what may be thought [the Court of Appeal's] timorous subservience
to judicial precedent is ... preferable to the uncertainty which will be
introduced into the law in fields not easy to delimit by the bolder work
of demolition and restoration" (73) of that court. Unless care is taken
(69) [1979] AC 317 (House of Lords: Lords Diplock, Dilhorne, Kilbrandon, Salmon and
Scarman) ·
(70) ibid.' 326
(71) ibid., 344
(72) [1979] AC 264, 292-293 per Lord Justice Goff
(73) Barrington v Lee [1972] 1 QB 326, 345 per Lord Justice Stephenson
330
in the straightening out of the law, it will be bent until eventually it is
broken.
Linked with certainty is the central position that is occupied by the
Court of Appeal : superior to the High Court but inferior to the House
of Lords. This position of the Court is ''responsible for its stability, its
consistency, and its predictability." (74) Apart from exceptional cases,
the Court of Appeal "sits always in divisions of three ... If, therefore,
throwing aside the restraints of Young, one division of the court
should refuse to refuse another because it believed the other's decision
to be wrong, there would be a risk of confusion and doubt arising
where there should be consistency and certainty.'' (75)
Lord Denning, however, remains unrepentant. He insists that he is
"consoled to find that there are many Courts of Appeal in the Commonwealth which adopt the course which I have advocated. So this has
made my dissent worthwhile." (76)
On the other hand the Criminal Division of the Court of Appeal is
permitted much greater flexibility because of the nature of its work. It
regularly deals with important questions involving liberty of the person, so if it finds that a man has been imprisoned as a result of the law
being either misapplied or misunderstood in a decision which the
Court has itself previously given, it has the duty to reconsider that
decision to see whether the conviction was proper. (77) Certainty is to
an extent subordinated to flexibility in order to achieve a just result.
3. Other Courts
Decisions of trial courts do not bind those courts themselves. Thus
High Court decisions do not bind any High Court judges, though they
do bind the lowest tier of the hierarchy, that is, magistrates' courts and
county courts. Naturally, a High Court will probably think twice before he decides to depart from a past High Court decision, if only
because of comity to his brethren. Decisions of the two courts in the
lowest tier bind no English courts. Likewise decisions of the Judicial
Committee of the Privy Council, which hears appeals from certain
Commonwealth jurisdictions, do not bind any English courts. The Privy Council is somewhat anomalous in the hierarchy in that it conducts
proceedings in London but its decisions do not bind any English
(74)
(75)
(76)
(77)
Farrell v Alexander [1976] 1 All ER 129, 147 per Lord Justice Scarman
Tiverton Estates Ltd. v Wearwe/1 Ltd. [1975] Ch 146, 172 per Lord Justice Scarman
Lord Denning, The Discipline of Law (London 1979) at p. 300
seeR v Taylor [1950] 2 KB 368
331
judges. In fact, the unique constitutional position of the Privy Council
is borne out by its practice of giving advice to Her Majesty rather than
a judgment. But since the composition of the Judicial Committee is
largely the same as that of the House of Lords, its decisions are usually
highly regarded by English judges.
§2. FINDING THE RATIO DECIDENDI
The usefulness of binding precedents can only be realised if the binding
portion of the judgment can be readily isolated from the law report.
The modern English law report begins with key words which seek to
indicate the main points involved, followed by a headnote summarising the facts and the final decision of the court, and then, in some
series, a summary of arguments of counsel, and finally the judgment
in full or a relevant portion thereof. If a decision can absolutely bind
later courts, it is imperative that there should be some rational way to
determine which part it is that binds, i.e., to determine the ratio decidendi.
The traditional theory of ratio decidendi had been to regard the ratio
as simply the legal principle formulated by the earlier court in relation
to the matter decided. (78)However this theory was unworkable in those, albeit rare, cases where no reasons were expressly given and no
legal principle was formulated by the court, nor could any be implied.
One modern theory that overcomes this handicap suggests elucidation
of the ratio from the facts of the case, rather than from the principle
propounded by the earlier court. (79) First, the facts which the earlier
court had specifically or impliedly treated as immaterial must be considered immaterial. Secondly, facts which had been specifically stated to
be material must be treated as material. Thirdly, if the judge had not
distinguished between material and immaterial facts, then all the facts
mentioned in the judgment which were not prima facie immaterial
must be treated as material.
The difficulty with the first and second points above is that only a
strong judge who had no doubts whatsoever over his line of reasoning
would have had stated the precise grounds of his decisions. "Too often
the cautious judge [would have included] in his opinion facts which
[were] not essential to his judgment, leaving it for future generations to
determine whether or not these facts constitute a part of the ratio
(78) see J. Montrose, "Ratio Decidendi and the House of Lords" in J. Montrose, Precedent
in English Law and Other Essays (Shannon, Ireland 1968) at p. 151
(79) see A. Goodhart, "Determining the Ratio Decidendi of a Case", (1930) 40 Yale Law
Journal 161
332
decidendi. (80) Consequently, it may be difficult to discern the precise
ratio from the rest of the judgment, i.e., the mass of obiter dicta. It
becomes more complex when each of the judges agreed as to the result
but reached it via different lines of reasoning. Moreover, the earlier
judge is deemed to be the sole referee in determining which facts were
material and which were not. No later court, having ascertained what
facts had been found to be material, can dispute such a finding even if
it should appear that the earlier judge had based his decision on a
mistaken fact. If we are bound by the facts as treated by the earlier
judge, ''may not this enable him deliberately or by inadvertence to
decide a case which was not before him by basing his decision upon
facts stated by him to be real and material but actually non-existent?" (81) The most common fall-back for later judges is simply to
distinguish the earlier decision, thus restricting its authority.
The third point above, however, stresses the advantage in this theory
in that there is a presumption against wide principles of law. At root
is the desire that a judge should expound relevant principles only, i.e.,
he "should not in formulating and enunciating legal rules go beyond
the immediate requirements of the case'' (82) before him because, in
the English adversarial system of litigation, he would not have had the
benefit of listening to legal arguments of counsel on those irrelevant
issues. So any legal principle enunciated that was based upon a fact not
treated by the earlier judge as material must be a mere obiter dictum.
''Without some criterion of relevance the judicial power of rulemaking seems to have no limit." (83) So if the earlier judge came to
conclusion which he said he would have reached had a certain hypothetical fact been in existence, then that conclusion is necessarily a
dictum, and is incapable of being a binding precedent. It is most important that the law adheres to this distinction between the ratio and
dicta, which is "in essence a distinction between relevance and irrelevance." (84)
So the more material facts there are, the narrower the principle, e.g.,
in a recent case a wife was informed of her husband's accident on the
road. Upon arriving at the hospital she saw the state of her seriously
wounded husband and suffered nervous shock. (85) It was held that
(80) ibid.
(81) ibid.
(82) A. Simpson, "The Ratio Decidendi of a Case and the Doctrine of Binding Precedent" in
Guest (ed.), Oxford Essays in Jurisprudence (Oxford 1961) p. 148 at p. 164
(83) ibid., 161
(84) ibid.
(85) McLoughlin v O'Brien [1983] 1 AC 410
333
she could recover damages for nervous shock. If the fact that she saw
the aftermath was material, then the principle of law, i.e. the ratio
decidendi, would be narrower than it would be if it were not material.
For if it were immaterial, the ratio would be wide enough to allow
recovery to any wife who suffered nervous shock after hearing of her
husband's injury.
But how is a particular fact to be ascertained as material or not in the
first place? Unless the judge said so unequivocably one way or another, which is unlikely, there is no logically valid method whereby a
later judge, looking at one particular earlier decision, can decide "with
certainty that the facts A, B and C are 'material', while facts D-J are
not. For in mere logic ... it is possible to draw as many general propositions from a given decision as there are possible combinations for
distinguishable facts in it. But merely looking at the facts it is impossible logically to say which are to be taken as the basis ·for the ratio
decidendi.'' (86) Some writers have mistakenly tried to identify this
with American Realism, which stresses that what is important is what
judges do rather than what they say. They fear that (87) "a doctrine
which finds the principle of a case in its material facts leaves us with
hardly any general legal principles, for facts are infinitely various."
(88) They believe that the ratio of an earlier decision is anything
that later courts construe it to be rather than the actual findings of the
earlier judge himself. However, this belief is inconsistent with the theory of binding precedent which compels later judges to follow the findings of earlier judges as to which facts were material or not. The later
judge certainly has some discretion because he has to interprete the
earlier judgment to ascertain which facts had been originally treated as
material but this is not quite the same as having the alleged discretion
to construct a new principle out of past decisions. Undisputedly, facts
can be infinitely various but actually the material facts that can arise in
any given set of similar cases are quite limited. Material facts are generalisations from 'brute facts' or raw facts as such. They are on a higher
plane of abstraction than raw facts and as such are liable to recur in
later cases. This criticism would have had more force if it had stressed
that the door is in fact open for varying opinions as to what facts the
earlier judge had treated as material, and this is true regardless whether
we label it interpretation of the earlier decision or construction of a
new rule out of it.
(86) J. Stone, "The Ratio of the Ratio Decidendi", [1959] 22 Modern Law Review 597
(87) 6ee Goodhart (note 79, supra)
(88) ibid.
334
Having so determined the material facts, admittedly not without difficulty, the ratio is identified ''in the conclusion reached by the judges
on the basis of the material facts and on the exclusion of the immaterial ones.'' (89) This ratio represents the legal rule that can bind a subsequent judge. In effect, certain basic generalisations can be made: (90)
(a) the ratio is not found in the stated reasons or in the stated rule of
law (because it may have been stated too widely) ; (b) the ratio is not
necessarily found by a consideration of all the ascertainable facts and
the decision (because many of the facts may have been immaterial); (c)
the ratio is found by considering the facts that the judge treated as
material and his decision based on those facts and also by bearing in
mind those facts he treated as immaterial (because they help to narrow
the scope of the ratio).
The root reason for all these complexities is that, unlike many of his
Continental brothers, an English judge is under no obligation to produce reasons in his judgment. Reasons are not legally required and a
decision with no reasons is nevertheless binding. But since the common
law consists essentially of decided cases, the need for reasoned judgments could not be sidestepped. A binding decision with no reasons is
of little, if any, use to subsequent judges. However, since there is no
compulsion to give reasons, judges do not give precise judgments
which respond to the litigants' submissions point by point, as is the
case in France and Belgium, (91) where highly technical judgments are
given. There is, in fact, no set pattern of judgments : "some judgments
are rambling and obscure; others are short and precise.'' (92)Nevertheless, judgments are commonly delivered in such a way as to analyse
and explain past decisions as a means of reasoning. Continental judgments frequently give reasons which deal only with the individual decision, whereas English judgments seek to explain the development of
the common law hitherto and look to the future. Herein lies the real
law-making power of English judges. A judge decides a case on the
basis of some past event and ''the ratio of it serves as a norm for the
future. No one can foresee the precise situations that will arise, so the
ratio has to be capable of covering an indefinite range of broadly similar situations, i.e., it is a generalisation drawn from a specific past
happening and projected into the future.'' (93) Fear that the ratio may
therefore become far too general and broad is unfounded because ''the
generality of the expressions which may be found there are not inten(89)
(90)
(91)
(92)
(93)
ibid.
ibid.
also: Spain, Portugal, The Netherlands
Simpson (note 82, supra) 168
R. Dias, Jurisprudence (London 1976) at p. 181
335
ded to be expositions of the whole law, but governed and qualified by
the particular facts of the case.'' (94)
Hitherto, judges have not been able to settle on one approach to the
doctrine of binding precedent and the concept of ratio decidendi. It
has been reported that there are no less than sixty-four techniques for
handling precedents. (95) Courts commonly resort to competing versions of the determination of the ratio, and several judges sitting in the
same court may give different conclusions as to the ratio of any particular precedent. The fact is that judges do not and are never going to
bind themselves rigidly to any one precise method. By approaching
different cases in different ways, they retain the freedom to manoeuvre. When interpreting and scrutinising the facts and language of a
precedent, a judge will be influenced by many general factors including, inter alia, the age of the precedent, the composition of the court,
the arguments that had been submitted to the court, his own sense of
justice, and the extent to which it is desirable to extend or limit the
express formulations of the precedent. (96) Thus far, "few attempts
have been made to state any rules by which these general principles can
be determined" (97) and it reveals the desire of the judiciary not to
shackle the doctrine of binding precedent and so tie their hands needlessly.
§3. THE AUTHORITY OF NON-BINDING PRINCIPLES
Not every "passing expression of a judge,
however eminent, can be treated as an ex
cathedra statement.'' (98)
A. Obiter dicta
All statements of law enunciated by judges which are not ratione_s are
obiter dicta. Dicta possess merely persuasive authority although they
may carry great weight if delivered by an appellate court. Lower courts
regard the House of Lords' dicta with particular reverrence. Dicta include propositions stated by way of illustration and those stated on
hypothetical facts. Legal principles in judgments delivered by a court
(94) Quinn v Leatham [1901] AC 495, 506 per Lord Halsbury
(95) K. Llewellyn, The Common Law Tradition (Boston 1960) at pp 77 ff.
(96) Although all judges sitting in the same court are of equal status, it is commonly believed
that some are more equal than others. So, such great judges of the past would include, inter
alia, Lord Atkin and Lords Justices Bowen and Scrutton.
(97) see Goodhart (note 79, supra)
(98) London Graving Dock Co. Ltd. v Horton [1951] AC 737, 748 per Lord Porter
336
not in a hierarchical position to bind the present court also fall to be
considered in the same category.
Three principles seem to emerge in relation to the treatment of such
non-binding precedents. (99) First, there is a negative obligation on the
judge not to disregard, ab initio, as irrelevant anything said in English
law reports. This appears to extend to law reports from other major
Commonwealth appellate courts, for instance, those of Australia and
Canada usually command fairly persuasive force in England.
Secondly, the weight accorded to dicta depends on the hierarchical
position of the earlier court in relation to the present court, the number of judges who had concurred in the dicta, the relevancy of those
dicta to the earlier case, and whether they are in line ·with other principles expounded elsewhere. (100) Thirdly, some dicta may become firmly entrenched through the passage of time. But this has been doubted
by the House of Lords, which has suggested that mere passage of time
is insufficient. More is required, viz., ''when a rule is so deeply entrenched that it has infected the whole legal system, or the choice of a new
rule involves more far-reaching research than courts can carry
out." (101)
B. Overruled decisions
In general, judges are reluctant to overrule old decisions. (102) They
usually favour gradual legal development rather than instant chang~s.
It has been suggested that due to the very background of judges, the
judiciary has ''its strong adherence to the maintenance of law and
order, ... and its concern for the preservation of the moral and social
behaviour to which it is accustomed." (103) At any rate, they value
certainty in the law and do not wish to disturb existing arrangements
entered into between individuals. So, when a precedent is eventually
overruled, it goes to show that the precedent itself is not merely anomalous simpliciter. Usually it is something that is blatantly wrong.
Only higher courts can overrule an erroneous decision.
(99) J. Harris, Legal Philosophies (London 1980) at p. 161
(100) "If we thought that the diet, though obiter, expressed the true construction of the Act,
we ought to follow them." Zeidman v Owen [1950] 1 KB 593, 596 per Lord Goddard CJ.
(101) Miliangos' case, supra, 469 per Lord Wilberforce
(102) Indeed the authority of a decision may increase with its age since the fact that it has
not been tampered with by subsequent judges shows that they tend to regard themselves as
bound by it.
(103) J. Griffith, The Politics of the Judiciary (London 1977) at p. 204
337
C. Reversed decisions
When a case goes on appeal, the higher court may affirm or reverse the
decision of the lower court on new grounds which were not discussed
by the latter. In effect, the ratio of the lower court's decision may be
left intact and not commented upon at all. What is the status of the
ratio of the lower court then ? Two contrary solutions have been offered by the courts. The first is to treat the ratio of the lower court as
effectively overruled if the decision was affirmed on different
grounds:
''When the House of Lords affirm a decision on different grounds from those of the Court
below, it is ... proof ... that they do not agree with those grounds. Therefore a judgment so
affirmed, so far from leaving the judgment of the Court of Appeal intact, shews the contrary, and that you are no longer bound by it." (104)
On the other hand, perhaps the fact that the appellate court left the
reasoning of the lower intact shows that there was no disagreement
with those reasons :
"Lord Cairns, [in the House of Lords], expressed a strong doubt whether the opinion of the
Court of Appeal in that respect could be maintained, but the appeal was dismissed on a
different ground ... In my view I am clearly bound by the decision of the Court of Appeal
until it is overruled." (105)
Before the matter is fully resolved, it appears that a subsequent judge
has great freedom to deal as he pleases.
D. Per incuriam
As seen above, the Court of Appeal had established in Young v Bristol
Aeroplane Co. Ltd. (106) that it was not bound by its own decision if
that decision had overlooked a relevant authority, i.e., it was reached
per incuriam. This technique is not applicable in relation to otherwise
binding decisions of a higher court. Hence, in Broome v Cassell (107)
it has been seen that the House of Lords condemned the Court of
Appeal for having a House of Lords decision per incuriam. This, it
was said, "would have put judges of first instance in an embarrassing
position, as driving them to take sides in an unedifying dispute
between the Court of Appeal ... and the House of Lords." (108)Thus
the scope of application of per incuriam is severely restricted. In fact,
(104) Hack v London Provident Building Society (1883) 73 Ch 103, 112 per Jessel MR
(105) Curtis Moffat, Ltd. v Wheeler [1929] 2 Ch 224, 234 per Mr Justice Maugham
(106) supra
(107) supra
(108) ibid., 1054 per Lord Hailsham LC
338
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
of forgetfulness of some inconsistent statutory provision or of some
authority binding on the court concerned," (109) provided that the
decision being declared per incuriam was not delivered by a court hierarchically higher than the present court.
E. Cessante ratione
''When the nature of things change, the rules of law must change
too.'' (110) Lord Denning MR adopted this in the Miliangos case:
"When the nature of sterling changes, the rule of law may change
too." (111) As already seen, he was firmly rebuked by the House of
Lords for doing this. (112)It is felt that the House of Lords' reluctance
to permit a wider application of cessante ratione is because of the
perpetuation of the declaratory theory of the common law, that is, that
caselaw only reflects what has always been the law: "If, of course, the
law-making function of courts is admitted, then it would be easy to
reject out-of-date precedents openly on the ground of changed conditions." (113) As it is now, cessante ratione applies only to precedents
which are not otherwise binding, therefore, for instance, the Court of
Appeal is not permitted to declare a House of Lords precedent cessante ratione.
F. Distinguishing
''The finding of similarity or difference is the key step in the legal
process." (114) Indeed the development of the law is induced by just
two processes: following cases and distinguishing cases. The common
law technique is probably the major factor which ensures the flexibility
of the doctrine of binding precedent.
A judge distinguishes an otherwise binding precedent by re-stating the
factual part of the precedent. He does this by lowering the level of
generality (therefore confining the decision to narrower facts), or by
treating additional facts as material in the precedent (therefore widening the difference between the two cases), or by re-interpreting the
(109)
(110)
(111)
(112)
(113)
(114)
Morelle Ltd. v Wakeling [1955] 2 QB 379, 406 per Sir Raymond Evershed MR
Davies. v Powell (1737) Willes 46, 51 per Chief Justice Willes.
supra, 504
supra
Dias (note 93, supra) at p. 197
E. Levi, An Introduction to Legal Reasoning (Chicago 1950) at p. 2
339
precedent to say that what the earlier judge appeared to say was the
ratio was actually a dictum.
Since words in a judgment are not equated to those in legislation, this
method of distinguishing is not obstructed by any definition of ratio
decidendi. No judge is expected to deliver his judgment with the precision of a statutory draftsman, so ''it is always open to later courts to
introduce exceptions which he did not mention - either because such
exceptions did not occur to him, or because he deliberately abstained
from stating an exception which, as a matter of fact, he would have
stated and acted upon if the facts of the case before him had been
different from what they were." (115) The authority of a precedent, if
repeatedly distinguished, can be severely impaired without being expressly overruled. "Repeated distinghuishing of a case is evidence that
the decision is not approved, and the effect may also be to confine it
more and more closely to its own special facts." (116)
English law reports are full of strained distinctions where courts have
endeavoured not to follow an undesirable but otherwise binding precedent. It has been suggested that when judges distinguish a precedent,
it indicates that judges are actually not bound by precedents. But this
is misconceived. This belief fails to appreciate that "being bound" by
precedents does not mean the elimination of the choice and the need to
make a rational decision. On the contrary, to distinguish is actually to
admit that judges are bound by precedents, for why else do they need
to distinguish ?
Distinguishing is particularly appropriate when a precedent of the
House of Lords consists of five judgments which concur as to the
result but differ as to reasons and as to materiality of facts. Since "no
sanctity attaches to one set of concurring reason as against another,
one may be preferred to another, or even used merely to neutralise it,
leaving the field clear.'' ( 117)
Even though a judge can always technically distinguish a precedent by
pointing out a factual difference, it does not necessarily mean that it is
always wise for him to do so. To do so arbitrarily tantamounts to
holding oneself up for criticism for having abused the tools of the
profession and for having eroded the rational character of the law. In
effect, to distinguish is not simply to point out a factual difference : it
(115) Simpson (note 82, supra) 166-167
(116) Dias (note 93, supra) at p. 195
(117) see Stone (note 86, supra)
340
necessitates the use of this factual difference to justify a refusal to
follow a precedent.
G. Minority opinions
Continental decisions are normally given in the form of a judgment of
the court. (118) However, all English judges have the right to deliver a
judgment, whether assenting or dissenting. In fact, dissenters often
give long and detailed judgments explaining their opinion along with
criticism of the reasons of the majority of the court. From time to
time, dissenting judgments have been vindicated in subsequent cases
where a later court overrules the decision of the majority of the court
in the earlier case. But care must be exercised in the treatment of
dissenting opinions because an apparently trivial dissent may turn out
to be ''an uncontrollable expostulation against a whole line of cases in
which the dissenter has hitherto concealed his agreement.'' ( 119)
On the one hand, it is said that dissenting judgments should be delivered infrequently because they may lower public confidence in the judiciary. Yet, on the other hand, a dissent demonstrates a division in the
court and so it ought to be freely aired in systems based on the doctrine
of binding precedent. It is submitted that the balance should tip in.
favour of judicial individuality as a means to avoid a uniform and rigid
Bench. In any case, dissenting judgments often help to clarify the majority decision. However, the truth is that dissenting judgments, after
an initial impact, are quickly forgotten in practice. Citation of a dissenting judgment in court usually tantamounts to an admission that
there is no other authority to support one's submissions.
§4. AN APPRAISAL
A. Criticism of the doctrine of binding precedent
It is this doctrine that laymen find most difficult to understand. Perhaps it is too complex and too technical. Perhaps the price paid for
uniformity is too high. "Uniformity ceases to be a good when it becomes uniformity of oppression. The social interest served by symmetry
or certainty must then be balanced against the social interest served by
equity and fairness or other elements of social welfares." (120) The law
becomes very impersonal and it is said that ''by requiring the judges to
(118) Although this is not, by any means, the rule, e.g., judges of certain Swiss and French
courts do deliver minority opinions.
(119) Blom-Cooper and Drewry (note 1, supra) at p. 84
(120) B. Cardozo, The Nature of the Judicial Process (New Haven, USA 1920) at p. 113
341
follow precedent we live under a government of laws and not of
men.'' ( 121) Where impartiality is desired, it may paradoxically enable
a judge ''to conceal conscious or unconscious partiality under the
screen of precedent." (122)
The Continental lawyer may be rightly excused if he fails to understand how it is that the Court of Appeal can hold itself bound by one
of its own decisions which is now agreed to be erroneous, followed by
advice to the losing litigant to appeal the case to the House of Lords.
Too often, words to this effect are heard in the caselaw of the Court
of Appeal:
''With reluctance - I might almost say with sorrow - I concur in the view that this appeal
must be dismissed. I trust that the case will proceed to the House of Lords." (123)
The most common complaint is that ''the dead hand of the past lies
heavily on English law." (124) Another is that the doctrine does no
justice, not to the individuals, but to the law: "It is revolting to have
no better reason for a rule of law than that so it was laid down in the
time of Henry IV. It is still more revolting if the grounds upon which
it was laid down have vanished long since, and the rule simply persists
from blind imitation of the past." (125)
Associated with this is that the doctrine fetters the acquisition of experience. Experience cannot be acquired if one precedent can settle the
law. There is no room for judicial experimentation. The English judge
is absolutely bound and has been described as "a slave to the past and
a despot for the future, bound by the decisions of his dead predecessors and binding for generations to come the judgments of those who
will succeed him." (126)
English common law's search for a relevant precedent from among the
mass of caselaw is hardly conducive to simplicity or certainty in the
law. Consequently lawyers are burdened with having to study extremely complex judgments. "It is not unusual to find the report of an
English case occupying fifty pages of print, with the most detailed
discussion of prior cases, and these cases, which must be laboroiusly
(121)
(122)
(123)
Lord
(124)
(125)
(126)
342
Goodhart (note 2, supra) 56
ibid.
Olympia Oil and Gas Co. Ltd. v Produce Brokers' Co. Ltd. (1915) 112 LT 744 per
Justice Phillimore
Goodhart (note 2, supra) 49
0. Holmes, Collected Legal Papers (New York 1920) at p. 187
Goodhart (note 2, supra) 61
traced by counsel, may be four or five hundred years old." (127) Continental lawyers are relieved of this task because unless a precedent is
well-known, it usually has little authority. On top of this, the sheer
volume of relevant English caselaw greatly increases the chances of
overlooking a relevant precedent. This leaves a subsequent court with
the possibility of avoiding it by using the per incuriam technique, the
excessive use of which, however, leads to uncertainty and unpredictability.
Since the English common law develops through the accidents of litigation, a bad decision of an appellate court may continue to bind lower
courts for many years if litigation to appellate courts is infrequent in
that field of the law. Hence, overall criticism of the doctrine of binding
precedent is that through its unsystematic development of a line of
cases, it may, in its attempts to seek logical perfection, have los sight
of the reality that ''the purpose of law is to justice between man and
man." (128)
B. Values promoted by the doctrine of binding precedent
''One of the most fundamental social interests is that law shall be
uniform and impartial. There must be nothing in its action that savors
of prejudice or favor or even arbitrary whim or fitfulness. Therefore in
the main there shall be adherence to precedent." (129) It strives to
attain impartiality by minimising judicial discretion. It prevents floodgates of litigation whenever there is a major change on the Bench.
Changes on the English Bench can have greater effects than on the
Continent because of a much smaller judiciary. (130) Impartiality also
serves to avoid the disappointing of reasonable expectations that were
formulated earlier by individuals.
Far from being impractical, the doctrine actually entrenches experience. The English have been said to prefer experience rather than logic,
and therefore favour the authority of decided cases rather indulge in
the exercise of abstract every time a decision needs to be made. But the
doctrine is not as rigid or binding as first meets the eye. Strict bindingness is ''largely mythical since judges have considerable latitude in evading unwelcome authorities." (131)Mechanical following of past deci(127)
(128)
(129)
(130)
High
(131)
ibid., 51
ibid., 53
Cardozo (note 120, supra) 112
There are 10 judges in the House of Lords, 23 in the Court of Appeal, and 79 in the
Court.
Dias (note 93, supra) at p. 195
343
sions is not expected : ''All that the doctrine means is that in practice
a judge must follow a precedent except where he may reasonably distinguish it." (132)
The doctrine promotes convenience. Having once decided a certain
issue of law one way ,it is only proper that the same conclusion is
reached when a similar and indistinguishable issue arises. Otherwise,
''the work of the Bench and the Bar would be far more difficult if each
question had to be considered de novo.'' (133) Indeed, in terms of
efficient functioning of the courts, it is impossible to reexamine every
proposition in every case. The scientific development of the law would
hardly be promoted if it is permitted to "degenerate into a wilderness
of individual and unconnected instances.'' ( 134) The logical development of the law is most important in the interests of predictability. (135)
The doctrine minimises the number of errors that individual judges
might make, therefore promoting public confidence in the legal system
as a whole. Impersonal and reasoned judgments tend to be more readily accepted by the public and serve as a fetter upon the somewhat
incongrous position of the judges as unelected de facto law-makers in
a democracy.
But whatever other superior qualities may be found in other legal systems, none can compare favourably with the English system in terms
of achievement of certainty. The doctrine ''provides some moorings so
that men may trade and arrange their affairs with confidence." (136)
The public is enabled to plan their affairs in the knowledge that if they
continue to comply with the law at that time, they are unlikely to be
drawn into litigation. The lawyers are enabled to give advice based
upon reasonable deduction, thereby minimising the resort to courts as
the final means of dispute settlement. Costs are enabled to be lowered
and courts become less heavily burdened with trivial cases. Judges are
enabled to apply to the law with a high degree of certainty. The doctrine therefore avoids ''the possible embarrassment which might affect
(132) ibid.
(133) Goodhart (note 2 supra) 51
(134) ibid., 53
(135) "It appears to me to be of great importance to keep this principle of decision steadily
in view, not merely for the determination of the particular case, but for the interests of law
as a science.": Mirehouse v Renne// (1833) 1 Cl. & F. 527, Baron Parke
(136) W. Douglas, "Stare Decisis", (1949) 49 Columbia Law Review 735, 736
344
High Court and Court of Appeal judges facing what are prima facie
conflicting covering decisions from Courts of differing status." (137)
§5. CONCLUSIONS
The continued application of the doctrine of binding precedent hinges
upon its adaptability to changing trends and its ability to deliver justice. Certain factors can be identified which go to suggest that the doctrine will continue to play the most essential role in English law for
quite some time to come.
The absence of a comprehensive code naturally fosters the doctrine.
But even if English law were to adopt a code, there is no reason to
believe that the two are incompatible with one another. Common lawyers' method of thinking will not be dispelled. Caselaw would be
required in order to interpret the code, therefore we fall back on judgemade caselaw. Coupled with the emphasis on caselaw is the continued
operation of a fairly efficient system of law reporting. Difficulties
abound at present in the existing system but on the whole, the use of
indexes and digests go a long way in helping the lawyer in his search
for authorities.
If the English hierarchy of courts remains, then the doctrine of binding
precedent must remain; the two are inseparable. "When a single decision can settle the law on a particular point, the court in the highest
tier must have the last word and, when spoken, that last word must be
followed by all lowtier courts, however much. they may believe it to
have been mistaken.'' (138) At any one time there ought, in principle,
to be a reasonably final way of settling the different views of law
between different tiers of courts. Certainly it ''would be bizarre if a
judge whose opinion had been rejected by a ... higher tribunal could
nevertheless continue to hold to it in his judgments thereafter." (139)
The availability of appeal in most cases obviates this need for excessive
judicial individuality, which merely increases the cost of litigation.
Binding precedents are the traditional source of the law for English
lawyers. "The training of English lawyers is essentially a training in
cautiousness and conservatism." (140) Their training places "far more
(137) C. Pickett, "Precedent in the Court of Appeal", [1980] 43 Modern Law Review 136,
140
(138) R. Cross, "The House of Lords and the Rules of Precedent" in P. Hacker and J. Raz
(eds.), Law, Morality, and Society (Oxford 1977) at p. 145, 147
(139) MacCormick (note 30, supra) 199
(140) D. Hughes Parry, "Economic Theories in English Case Law", [1931] 42 Law Quarter-
345
emphasis upon the development of what may be called a legal approach to the cases than is true in a Continental law school." (141) The
object is to apply past judicial experience to present judicial questions,
and to ensure the powerful restraining forces of "continuity in traditional modes of professional thought and in traditional rules." (142)
The lawyer who has spent many of his years nurturing this quality will
find it extremely, if not impossible, to think in any other way.
The reverrence attributed to precedents is partly due to the unique
status of the English judge. Unlike many other systems which appoint
judges with no experienc at the Bar, the English judiciary appoints its
members from the most esteemed and eminent leaders at the Bar. Consequently, judges acquire a high level of respect from the legal profession.
Finally, the doctrine of binding precedent must continue to provide
justice. It will find itself walking through treacherous territory if, in its
benevolent attempts to provide certainty, it actually renders certainty
of injustice, because injustice or inconvenience will eventually kill the
doctrine. But total certainty and predictability can never be attained,
so some level of uncertainty must be accepted as part of the price lest
the doctrine is dissolved by its own doing. Justice will be served by
ensuring consistency of decisions, equality between litigants, and impartiality of judges. Far from being too rigid, the doctrine of binding
precedent has made the common law "one of the two great systems of
jurisprudence existing today in the western world." (143) It has provided for "a consistency of legal thought and action, and a remarkable
capacity for adjustment to changing social conditions." (144)
ly Review 183, 186
(141) Goodhart (note 2, supra) 47
(142) R. Pound, The Spirit of the Common Law (Boston 1921) at p. 43
(143) Sir Leslie Scarman, "A Code of English Law?" (Hull University, England 1966);
extract reproduced in Zander (note 24, supra) at p. 282
(144) ibid.
346