Doctrine of Precedent in UK Law

I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation.

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.

For Clunis to be frankly inconsistent with the Supreme Court, Mr Bowen has to point to reasoning in Patel which is based expressly on like or materially similar facts to Clunis; and I consider that there is no such reasoning. In this regard I am giving full weight to the whole of the Earl of Halsbury's dictum in Quinn v Leathem.

It would, however, be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the Executive arm of Government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings ( c.f. Ridge v. Baldwin [1964] A.C. 40).

When a judge decides a case which comes before him, he does so on the basis of what he understands the law to be. LXIX (1983) 170, 186) have called the "mosaic", of the common law, is kept in a constant state of adaptation and repair, the doctrine of precedent, the "cement of legal principle", providing the necessary stability.

In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability.

So far as questions of fact are concerned, each court has to try and decide questions of fact upon the evidence adduced before it. Judicial comity and common sense take care of most of these situations in practice but the law does tolerate the possibility of apparently inconsistent decisions. The element of vexation is an aspect of abuse, the use of litigation for an improper purpose, trying to have repeated bites at the same cherry. The objectionable element is not the risk of inconsistency.