ON THE LIBERATION OF APPELLATE JUDGES HOW NOT TO DO IT!*
| Published date | 01 September 1972 |
| Date | 01 September 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02359.x |
THE
MODERN
LAW
REVIEW
Volume
35
September
1972
No.
5
ON
THE
LIBE~RATION
OF
APPELLATE
JUDGES
HOW
NOT
To
DO
IT
*
I.
INTRODUCTORY
WE
may think of the House of Lords Practice Statement of
1966,
by which its members purport to take liberty to
"
depart
"
from
their earlier decisions when they think it
''
right
"
to do
so,
as a
certain watershed in
institutional
(as distinct from individual)
judicial acknowledgment
of
the creative elements in appellate
decision-making. Certainly, we are now
in
the presence of self-
searching and overtness of choice in English appellate activity as
never bef0re.l We may think of the sudden implosions in
Boys
v.
Chaplin
concerning foreign torts in British courts. The Court of Appeal
and the House have vied with each other to bring forth a whole
crop of competing rules, few of them matching what has been done
in the preceding century under that rule. We may think of
Gallie
V.
Lee
where the appellate judges achieved consensus on the kind
and degree of error
or
misunderstanding needed to base the
non
of the staid learning on the rule in
Phillips
V.
Eyre
*
The substance of this article waa first delivered as the Fourth Wilfred
Pullagar Lecture at Monash University on May 31, 1972. The treatment
of
Jones
v.
Secretary
of
State
for
Social Seroices
119721
1
All E.R. 145
(H.L.)
has, however, been rather extended for the present purpose.
1
For
illustrative earlier materials, see Lord Wright,
Legal Essays and
Addresses
(1939) xxv; Lord Radcliffe dissenting in
Lister
v.
Royford Ice
Co.
19571 A.C.
555,
591-592; Stone,
Legal System and Lawyers Reasonings
F
1964) cvii
(passim); idem,
''
The
Ratio
of the
Ratio Decidendi
"
(1959)
22
M.L.R. 597
(passim).
2
[1968] 2
Q.B.
1;
[1968] 2 W.L.R. 328; [1968]
1
All E.R. 283 in the Court
of
Appeal, as affirmed in the House of Lords [1971] A.C. 356; [1969]
3
W.L.R. 322; [1969] 2 All E.R. 1085.
See,
for full analysis, Julius Stone,
"
A
Court
of
Appeal in Search of Itself.
.
.
.
(1971) 71 Columbia L.R.
1420-1442.
~ ~
3
(1870)
L.R.
6
Q.B.
1.
4
[lo691 2 Ch. 17; [1969] 2 W.L.R.
901;
[1969]
1
All E.R. 1062,
in
the
Court
of
Appeal, also affirmed in the House [1971] A.C. 1004; [1970]
3
W;,L.R.
1078: r19701
3
All E.R. 961. For a full analvsis. see Julius Stone. The
LimitsLof
Nk
Est
Factum
after
Gallie
v.
Lee
(1972)
88
L.Q.R. 190.'
VOL.
35
(6)
449
1
450
THE
MODERN
LAW
REVIEW
VOL.
35
est factum
plea, reinterpreting or discarding a mass of cases, and
leaving a rich residue of unclarities in the process. We may think,
too, of the wide range of varying judicial positions on the duty of
care, laid bare in the House of Lords consideration of
Dorset
Yacht
Co.
v.
Home
Ofi~e.~
Lord Diplock, indeed, made a rather unique
attempt,
for
an English judge, to set the working out of the limits
of Lord Atkin’s duty notion into a frame of continuing judicial
choice-making, on the basis of what he called
‘(
the judges’ con-
ception of the public interest in the field of negligence
. . .
based
upon the cumulative experience of the judiciary of the actual
consequences of lack of care in particular instances.”
At one remove from these trends runs an unresolved debate in
the Court of Appeal about whether that court, too, can and should
“
liberate
”
itself from
Young
v.
Bristol Aeroplane
CO.~
and become
free to depart from its own decisions when
it
deems it right to do
so.
As
early as
Conway
v.
Rimmer
Lord Denning M.R. had in a
dissent urged that the House of Lords Practice Statement must
also change the
Young
case precedent rule
for
the Court of Appeal;
but his brethren continued to insist on regarding the
Young
case
rule as unaffected. in
1969,
Lord Denning con-
curred in a result on the merits with Salmon and Russell
L.JJ.;
but he did
so
by his own path of overruling
Carlisle Banking
Co.
v.
Bragg,lo
a co-ordinate precedent. Salmon
L.J.,
while regretting
that the
Young
case rule required adherence to earlier decisions,
even when this involves
“
inconsistency, injustice and an affront
to common sense,” thought that the rule could only be removed
by a unanimous court.ll But Russell
L.J.
denied that even a
unanimous court could do
so;
and he thought that
it
should
not,
since this would decrease the reliability of case law for practitioners,
clients and judges.I2
Since members of the House also disapproved of the
Bragg
case,
one might have expected that all this would amount to a continuing
slide away from the
Young
case rule, and an intensification in Lord
Denning’s campaign against it. Certainly, one need not have ex-
pected the next stage to be a confrontation between the Court of
Appeal and the House of Lords. Much less was one to expect
that a unanimous Court of Appeal, including Lord Denning M.R.,
would be found reproving the House
for
departure from its
own
earlier decisions,
or
seeking to hold the House after
1966
to a
In
Gallie
v.
Lee
5
(H.L.(E.)
)
[1970]
A.C.
1004; [1970] 2
W.L.R.
1140; [1970] 2
All
E.R.
294.
0
(H.L.(E.)
)
19701
A.C.
at
p. 1058,
and
see
esp.
pp. 1063-1064.
7
[1944] 1
K.4.
718; [1944] 2
All
E.R.
293; (1944) 171
L.T.
113.
8
1967 1
W.L.R.
1031, 1037; [1967] 2
All
E.R.
1260, 1263.
9
119691 2 Ch. 17, 57; [1969] 2
W.L.R.
901, 913-914; [1969] 1
All
E.R.
1062. 1082.
10
11
El9691 2 Ch. 17, 49; [1969] 2
W.L.R.
901, 924-925; [1969]
1
All
E.R.
12
[1969] 2 Ch.
17,
41-42; [1969] 2
W.L.R.
901,
918; [1969] 1
All
E.R.
1062,
19111 1
K.B.
489
(C.A.).
1062, 1082.
1076.
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