DIVISIONAL COURT PRECEDENTS
| DOI | http://doi.org/10.1111/j.1468-2230.1946.tb01012.x |
| Author | W. H. D. Winder |
| Published date | 01 October 1946 |
| Date | 01 October 1946 |
257
DIVISIONAL COURT PRECEDENTS
A
SERIES
of proceedings’ which were brought
to
test the
legality of newspaper advertisements of certain competitions
raises
a
number of questions on the status and binding effect of
rulings
of
a
Divisional Court.
A
metropolitan magistrate, who
had decided a case in accordance with the decision’ of
a
Chancery judge of
first
instance, refused to state a case for the
opinion of the High Court on the ground that,
so
far as he was
concerned, the law on the matter was decided and, therefore,
that there was no point of law on which he could properly state
a
case. He relied on the decision in
R.
v.
Shiel
to the effect
that
a
magistrate ought not to be ordered to state a case when
he has decided the point of law
in
accordance with
a
previous
decision upon the same point in the Queen’s Bench Division
from which there was no right of appeal.
R.
v.
Shiel,
however,
was held by a Divisional Court not to excuse the magistrate
from
stating
a
case and accordingly an order
of
mandamus was
issued requiring him to state a case for the opinion of the High
court.
R.
v.
Shiel
was distinguished on the ground that
in
that
case the previous precedents had issued irom
a
Divisional
Court, while in the instant case the decision which the magis-
trate had ‘held to be of the same effect as the decision in
Curritt
v.
Godson
was one by a learned judge of great authority
in the Chancery Division in
a
case in which he was not the final
court of appeal’. Lord Caldecote
C.J.
continued his judg-
ment as follows
:-
If,
in
the present case, the magistrate states
a
case,
there is, in my opinion, an obvious point of law which is
open to the party aggrieved by the magistrate’s decision,
and that is whether
or
not the judgment of Eve
J.
was a
right decision in the matter before him, and also,
no
doubt, whether
or
not that decision is binding
on
this
Court. The party aggrieved by the magistrate’s decision
asks for an opportunity of bringing that decision before
this Court, which
is
the final court of appeal in
a
criminal
1
R.
v.
Sir
Rertrand
Watson;
Ez
p.
Bretherton,
[1945]
K.B.
96,
Div.
Ct.;
Bretherton
v.
U.K.
Totalisato~
Co.,
Ltd.,
ibid.,
655,
Div.
Ct.
;
Elderton
v.
U.K.
Totalisator
Co.,
Ltd.,
61
T.L.R.
529,
Uthwatt
J.;
S.C.,
[1946]
K.B.
57,
C.A.
2
Elderton
v.
U.K.
Totalisator
Co.,
Ltd.,
[1935]
Ch.
373,
Eve,
J.
3
(1900),
89
L.T.
587,
C.A.
4
R.
v.
Sir
Bertrand
Watson;
Ez
p.
ðerton,
[1945]
E.B.
96.
5
Carritt
v.
Godron
&
Son,
[l899]
9
Q.B.
193,
Div.
Ct.
6
[1945]
K.B.,
pp.
99400.
as8
YODEUN
LAW
=VIEW
VOL
9
cause
or
matter, and
I
cannot see how
it
can be said that
a
judgment of
a
judge who
is
not the ha1 court of appeal
is,
nevertheless,
so
final that
it
cannot even be questioned
in
this
Court
which
is
the ha1 court of appeal for these
proceedings.
The above passage from the judgment of Lord Calde-
cote
C.J.,
while
allowing
the Divisional
Court
the last word in
the matter, leaves
it
as
an
open
point of
law
whether
or
not the
Court
would
be
bound by the decision of the judge
of
first
instance. When, however, the point of substantive law duly
came before
a
Divisional Court
on
a
case stated,' that Court
had
no
hesitation in refusing to follow the earlier decision of
the
judge of
&st
instance. Lord Goddard, in delivering the
judgment
of
the Court, said
:
This
appeal is brought to test
the
correctness of that decision
'.
Yet the
test
did not prove conclusive for when, shortly
afterwards, the same point of law came before Uthwatt
J.
in
an
action in the Chancery Division he apparently did not hold
himself
bound by the Divisional Court ruling. Faced by con-
flicting decisions of
a
judge of
first
instance in the Chancery
Division and
a
later decision of
a
King's Bench Divisional
Court.,
he said
:-
In
the light
of
this conflict
I
am
bound,
I
think, to
express my
own
view rather than to treat the matter as
concluded in
this
Court by the later decision; and
I
take
this
course with the less hesitation by reason of the
assurance given to me that, whichever way
I
decide the
point, the case
will
go to
a
higher Court.
Uthwatt
J.
did, in fact, decide the point of law in the same
way
as
the Divisional Court, and his decision was upheld
on
appeal.l0 The Court
of
Appeal did not refer
to
the question
of
the binding effect of the precedents.
The uncertain handling in this group
of
cases
of
the doctrine
of
stare
decisis
in its application to Divisional Court rulings is
not the result
of
scanty judicial authority
on
the subject.
There have been many relevant pronouncements since the
Judicature Act,
1873,
made it necessary for the decisions
of
the
newly established Divisional Courts to be fitted into the system
of judicial precedent. The extensive literature which has
been devoted to this system has hitherto given
no
special
7
ðerton
v.
U.K.
Totalisator
Co.,
Ltd., [1945]
E.B.
655.
8
Ihid..
D.
559.
r-
----
9
Elderton
v.
U.K.
Totalisator
Co.,
Ltd., 61
T.L.R.
M9.
10
[1946]
K.B.
57,
C.A.
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