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Precedents in the Court of Appeal

Published online by Cambridge University Press:  16 January 2009

A. L. Goodhart
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Extract

It was not until 1898 that the rule that the House of Lords is absolutely bound by its own judgments was finally established in London, Street Tramways Co., Ltd. v. London County Council. The justification for this rule was stated by Lord Halsbury L.C. in these words: ‘What is that occasional interference with what is perhaps abstract justice as compared with the inconvenience—the disastrous inconvenience—of having each question subject to being reargued and the dealings of man-kind rendered doubtful by reason of different decisions, so that in truth and in fact there would be no real final Court of Appeal?’ It is strange that the Lord Chancellor did not refer to the fact that although the Judicial Committee of the Privy Council is, for constitutional reasons, not absolutely bound by its own judgments, nevertheless no ‘disastrous inconvenience’ has followed from this. In practice the Judicial Committee follows its own prior judgments unless they are clearly wrong, but it does so on the ground of reason rather than on that of absolute authority.

Type
Research Article
Information
The Cambridge Law Journal , Volume 9 , Issue 3 , November 1947 , pp. 349 - 365
Copyright
Copyright © Cambridge Law Journal and Contributors 1947

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References

1 [1898] A. C. 375.

2 At p. 380.

3 For a statement concerning the practice in the Judicial Committee of the Privy Council see Att.-Gen. of Ontario v. Canada Temperance Federation (1946) 62Google Scholar T. L. R. 199.

4 (1861) 9 H. L. C. 274, at pp. 338–339.

5 In his Presidential Address to the Holdsworth Club on ‘The Limits of Precedent’ (1943) Viscount Simon L.C. said ‘To those who find it astonishing that the House of Lords, sitting judicially, should reaffirm a proposition of law that later argument might show to be wrong, there are two answers. First, when the House of Lords has once laid down the proposition, it is no longer wrong: it is the law and everybody should proceed on that footing. And, secondly, the cure for these difficulties, if cure is needed, is by legislation which amends the decision by putting a different statutory provision in its place’. Concerning Lord Simon's first point one may perhaps refer to Holt, C.J.'s statement in City of London v. Wood (1701). ‘An Act of Parliament can do no wrong, though it may do several things that look pretty odd’. With all respect, Lord Simon fails to point out that though a judgment may no longer be wrong if pronounced by an infallible court, nevertheless it may continue to be inconvenient. The strength of the common law has been its development through the method of trial and error: if precedents are made absolutely binding, then the possibility of trial is abolished and all the emphasis is placed on error. Lord Simon's brief reference to amendment by legislation hardly does justice to the difficulties inherent in this process.

6 (1942) 4 University of Toronto Law Journal, 247.

7 Ibid. at p. 276.

8 If we may say so, it is not only the erroneous judicial opinion which is inconvenient. The opinion which has become out of date owing to the changing circumstances of the times is an equal, and sometimes a greater, bindrance to the development of the law.

9 Supra, n.1.

10 [1944] K. B. 718.

11 [1914] 3 K. B. 458.

12 Ibid. 461.

13 [1944] K. B. at p. 723.

14 In Perrin v. Morgan [1943] A. C. 399 the House of Lards reversed the judgment of the Court of Appeal which had held that in a will the word ‘money’ must be construed in a narrow sense. In the Court of Appeal Lord Greene M.R. had reached his conclusion with great regret, holding that the rule was ‘a blot upon our jurisprudence.’ If a large sum had not been involved in this case there might not have been a further appeal, with the result that the blot would have remained indefinitely. The unfortunate beneficiaries, who found the estate depleted by the heavy costs of an appeal to the House of Lords, must have felt some doubt concerning the value of the rule of binding precedents.

15 [1903] 2 Ch. 475, 485.

16 [1900] 1 Q. B. 284.

17 Greer L.J. was convinced that the Court of Appeal had the power to overrule its own prior decisions if it was convinced that they were wrong. He said so in Newsholme. Bros. v. Road Transport and General Insurance Co. [1929] 2 K. B. 356, 375Google Scholar, and in Re Shoesmith [1938] 2 K. B. 637, 644Google Scholar.

18 [1944] K. B. at p. 729.

19 This may prove very difficult as no complete index of the judgments delivered in the English courts has been made.

20 [1943] 2 A11 E. R. 253.

21 In 1939 the Lord Chancellor appointed a committee presided over by Simonds J. (now Lord Simonds) to consider the method of reporting cases. In its Report (17 March, 1940) the Committee, with a single dissent, reached the conclusion that the present method of relying on unofficial reporters, who might or might not report a judgment, was a satisfactory one. On this point see the comments of SirHoldsworth, William in his Essays in Law and History, 1946, pp. 290seqGoogle Scholar.

22 (1923) 128 L. T. 642.

23 The only reference to this case was in the Times newspaper. Strange to say the Vidal case had been heard by the Full Court of Appeal presided over by Lord Birkenhead L.C. See an interesting note on this case by DrAllen, C. K. (1943) 59 L. Q. R. 308–311Google Scholar.

24 In Bottersby v. Anglo-American Oil Co., Ltd. [1945] K. B. 23Google Scholar, the Court of Appeal refused to follow its own previous decision in Holman v. George Elliot & Co., Ltd. [1944] K. B. 591Google Scholar, on the ground that the Holman case was in conflict with earlier cases. If the court in the Battersby case was at liberty to overrule the Holman case because the latter was in conflict with previous authority, then in a future case the Court of Appeal will be at liberty to disregard the Battersby case because it was in conflict with the Holman case. If it had not been for the earlier cases the Battersby case would have had to be decided in accord with the clearly inconvenient Halman case.

25 [1944] 2 All E. K. 350.

26 (1911) 5 B. W. C. C. 142.

27 (1914) 7 B. W. C. C. 101.

28 [1945] K. B. 584.

29 [1916] 2 A. C. 511.

30 Ibid. at p. 519.

31 Ibid. at p. 523.

32 Ibid. at p. 525.

33 17 Q. B. D. 462.

34 [1917] 2 K. B. s66.

35 [1940] 2 K. B. 447.

36 [1940] 2 K. B. 581.

37 [1941] 1 K. B. 134.

38 Ibid. at p. 132.

39 [1945] K.B . 584.

40 [1944] K. B. 718.

41 Ibid. at p. 722.

42 Ibid. at p. 729.

43 [1944] K. B. 718.

44 [1945] K. B. 584.

45 [1903] 2 Ch. 475.

46 [1914] 3 K. B. 458.

47 [1901] 1 K. B. 245.

48 In reaching this conclusion it was following Smelling Company of Australia v. Inland Revenue Commissioners [1897] 1 Q. B. 175Google Scholar in which the Court of Appeal had held that a licence to work a patent in Australia was not locally situated outside the United Kingdom.

49 [1901] A. C. 217.

50 Supra, n. 44.

51 Supra, n.45.

52 [1914] 3 K B. at p. 462.

53 [1032] A. C.238.

54 Ibid. at p. 258.

55 Ibid. at p. 245.

56 [1946] K. B. 360.

57 (1933) 102 L. J. K. B. 768.

58 [1940] A. C. 479.

59 [1946] 1 All E. R. 429.

60 [1905] 2 K. B. 232.

61 [1926] 1 K. B. 497.

62 (1928) 21 B. W. C. C. 87.

63 Ibid. at p. 94.

64 [1946] 1 All E. R. 429.

65 (1921) 14 B. W. C. C. 158.

66 In Noble v. Southern Railway Co. [1940] A. C. 583Google Scholar the House of Lords allowed the appeal from the Court of Appeal which had held itself bound by its previous decision in Clarke v. Southern Rly. Co. (1927) 20 B. W. C. C. 309Google Scholar. The court had apparently been of the opinion that Clarke's case was inconsistent with Wilson and Clyde Coal Co. v. Mc Ferrin [1926] A. C. 377Google Scholar, but had nevertheless felt that it ought to follow its own later decisions. In the House of Lords Lord Wright said (at p. 598): ‘ What a court should do when faced with a decision of the Court of Appeal manifestly inconsistent with the decisions of this House is a problem of some difficulty in the doctrine of precedent. I incline to think it should apply the law laid down by this House and refuse to follow the erroneous decision. But I cannot blame the Court of Appeal for leaving it to this House to point out that the decision in Clarke's case was at the time inconsistent with M' Ferrin's case, and is also inconsistent with what this House said later: Thomas v. Ocean Coal Co. and Harris v. Associated Portland Cement Manufacturers, Ltd. It is enough here to say that Clarke's case was wrongly decided. Indeed the contrary is unarguable.'

67 [1944] K. B. at p. 729.

68 Supra, n. 6, at p. 276.

69 [1940] A. C. 190.

70 (1911) 4 B. W. C. C. 295.

71 The House of Lords was, however, forced to distinguish Warner v. Couchman [1912] A. (.'. 35. saying (at p. 204)Google Scholar: ‘This House decided tbat case purely as on a finding of fact.’ Another interesting case is Winter v. Winter (1946) 62 T. L. R. 336Google Scholar in which Bailey v. Bailey [1926] Ch. 758Google Scholar was distinguished on its special facts, the court saying, ‘the decision is one which we should be reluctant to extend.’ Cf. a note on this case in (1946) L. Q. R. 213Google Scholar.

72 [1933] 2 K.;B. 461.

73 Ibid. at p. 405.

74 [1933] 2 K. B. at p. 407.

75 Serutton L.J. also said at p. 468‘If a person rides in the dark he must ride at such a pace that he can pull up within the limits of his vision, and if, in those circumstances, he strikes something, either he is going too fast or he has not been keeping a proper look-out.’

76 Ante, p. 355.

77 Cf. (1934) 50 L. Q. K. 5–7, and 157, 160.

78 [1934] 1 K. B. 319.

79 Ibid. at p. 322.

80 Ibid. at p. 321.

81 [1946] 1 K. B. 114.

82 Ibid. at p. 115.

83 [1933] 2 K. B. 465, n. 1.

84 A note on Morris v. Luton Corporation. [1946] 1 K. B. 114Google Scholar was published in (1946)62 L. Q. R. 110. Thereafter Messrs. L. Bingham & Co. sent me the following letter:— 'Driving in the Dark.

'With reference to the note under the above heading at pp. 110 and 111 of the April number, as we were the solicitors for the defendants in the case of Tart v. Chitty & Co., and also Baker v. Longhurst & Sons, Ltd., we can confirm that the observation of Scrutton L.J. was not a mere obiter dictum but was the principle of the decision. He not only said that it was unfortunate that the earlier cases had not been reported, but expressly asked our counsel, Mr. Tom Eastham, K.C., to make sure not only that Baker's case was reported, but Tart v. Chitty & Co. also. In consequence we supplied to the reporters the papers and shorthand note of the judgments in both cases. This explains why Tart v. Chitty, although decided in June, 1931, was not reported until after the decision in Baker's case a year later.

‘Incidentally the Scotch Courts still seem to recognize the principle (see Cowan v. Robertson (1941) S. C. 502)’Google Scholar.

85 In Holdman v. Hamlyn [1943] K. B. 664Google Scholar the Court of Appeal for all practical purposes overruled Bass v. Hendon U. D. C. (1912) 28 T. L. R. 317Google Scholar, and Heasmer v. Pickfords, Ltd. (1920) 36 T. L. R. 818Google Scholar, but it was impossible for it to say so. The text-book writers have never regarded these cases with approval (cf. Winfield, Law of Torts, 3rd ed. pp. 129–130, and Salmond, Law of Torts, 10th ed. pp. 102–104), and have found difficulty in explaining the principle on which they were based. It may, perhaps, be suggested, with all respect, that it would have been advantageous if these cases had been overruled in specific terms in the present judgments, for text-book writers may well hesitate to omit thesereferences in future editions if the Court is not prepared to express a definite view on the subject.

86 [1944] K. B. 718. 723.

87 [1914] 2 K. B. 458, 461.

88 [1940] A. C. 412.

89 [1913] 2 K. B. 111.

90 At p. 432.

91 In the Lissenden case Lord Atkin said at p. 423: ‘My Lords, I am shocked to say that the Court of Appeal felt constrained to accede to this contention being bound by a decision of Johnson v. Newton Fire Extinguisher Co. and a series of cases which followed that case which undoubtedly laid down the law as contended for by the respondents’.

92 [1914] 3 K. B. 458.

93 [1932] A. C. 238.