PRECEDENT IN THE COURT OF APPEAL
| Published date | 01 March 1980 |
| Author | C. E. F. Rickett |
| Date | 01 March 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01586.x |
PRECEDENT
IN
THE
COURT
OF
APPEAL
PROFESSOR
SIR
RUPERT
CROSS
distinguishes
three
fundamental
“
rules
of
precedent
”
in English law. These are:
Rule
I:
“
all courts must consider the relevant case law
”;
Rule
2:
“
lower courts must follow the decisions of courts above
them in the hierarchy
”;
and
Rule
3:
“appellate courts are generally bound by their own
decisions.”
Recent litigation over the interpretation of the Domestic Violence
and Matrimonial Proceedings Act
1976.
in
the decisions
in
Davis
v.
has highlighted a conflict of views among some judges in
the Court
of
Appeal and House of Lords about the applicability
of
rule
3
in
the Court
of
Appeal.
It
is
suggested that this conflict
can
only properly be understood if an examination is made of the
nature
of the
rules,
and the scope of their effect. This paper sets out
to
provide
a
basis for discussion, and, further, to suggest some possible
solutions to the problems arising.
I.
RULE
ONE
AND
THE
COURT
OF
APPEAL
The Court
of
Appeal, like any other court in the English legal
system, has an obligation to
consider
any relevant previous decisions,
particularly of the House of Lords, Court of Appeal and High
Court, when reaching a decision in any new case,
especially
a hard
case when there exists no covering statutory provision, or case law
provision of the House of Lords.a The obligation to consider in an
easy case is subsumed by the obligation to apply/follow. We shall
see in section
I1
that rule
2
binds the Court of Appeal to
apply
a
covering House
of
Lords provision. A “rule” similar to rule
2
binds the Court to apply statutory provisions
as
the primary source
of law.
In
a case clearly covered by a statutory provision there are
no
relevant decisions (except possibly on interpretation), and in a
case clearly covered by a previous decision there is only one relevant
decision or line of decisions which must be applied. The nature of
the obligation to consider is discussed herein in section
111.
This is
clearly, however, the most fundamental rule of precedent, from
which rules
2
and
3,
as stated, emanate. As Cross indicates, were
there to be la general repudiation
or
non-recognition of rule
1
by
judges, “the English legal system would have undergone a
revolution
of
the highest magnitude.”
*
1
R.
Cross,
‘‘
The House
of
Lords and
the
Rules
of
PrecMent
”
in
Lmu,
Morality
and
Society
(1977)
(ed.
P.
M.
S.
Hacker
and
J.
Raz),
p.
145.
See
also
R.
Cross,
Precedenf
in
English
Law
(1977).
pp.
5-8.
2
119781
1
AU,H.R.
841
(C.A.):
[1978]
1
All
E.R.
1132
(H.L.).
Sea
R.
Brownsword
and
M.
Hayes,
The
Jurisprudence
of
Davis
v.
Johnron”
(1978) 29
N.I.L.Q.
296.
8
See
text
at
section
I1
for
a
discussion
of
these
terms.
4
Cross,
Precedent,
p.
8.
136
Mar.
19801
PRECEDENT
IN
THE
COURT
OF
APPEAL
137
11.
RULE
Two
AND
THE
COURT
OF
APPEAL
Despite statements in three recent cases6 from some Court of
Appeal judges apparently to the contrary, it is clear that rule
2,
the
nature of which is discussed
in
section
111,
binds the Court of
Appeal. The Court hlas a duty to consider relevant decisions, but it
has a duty
to
apply
(that is,
is
bound to follow) any decision of
the House of Lords which, and this vital point will be discussed
later,
actually settles
or
covers the particular dispute before the
Court-a covering decision.
A similar duty, to apply any statutory
provision which settles clearly the dispute in hand-a
covering
statutory provision-also
exists. It is quite clear that no duty exists
under rule
2
to apply a covering decision of the Court of Appeal or
High Court. Such a covering decision, being relevant, must be con-
sidered very seriously under rule
1,
and thus has considerable
persuasive value, or, as Professor Dworkin puts it,
“
gravitational
force.”e It is probably true to say that
in practice
the Court of
Appeal will generally approve land apply a previous covering decision
of its own or of the High Court, but this is
not
because of the
binding nature of rule
2
on the Court.
A
brief look at the cases illustrates and emphasises the truth of
these assertions. In
Broome
v.
Cassell and
Co.
Ltd.
the Court of
Appeal considered the application of the restrictive rules concerning
the award of exemplary damages laid down by the House of Lords
in
Rookes
v.
Barnard.?
Lord Denning M.R., Salmon and Phillimore
L.JJ.
decided that
Rookes
could not stand and need not be followed
on two main grounds. First, in
1964
the House
of
Lords was bound
by its own previous covering decisions on the issue, and thus could
not overthrow settled common law principles. Secondly, the decision
in
Rookes
was given
per incuriam.
There was no real argument
before their Lordships; and the decision itself was
“
hopelessly
illogical and inconsistent,”8 and “in conflict with the basic rules
governing the law
of
this country and .
.
. unworkable in practice.”
The argument came to this, that rule
2
has no application in the
Court of Appeal. Covering decisions of the House of Lords, at the
very least when they are mistaken (and how often
mn
judges skil-
fully argue this?), have only persuasive force under rule
l,
but no
binding force under rule
2.
Presumably, however, no member of the
Court would have been
so
ready to argue that
a
covering statutory
provision
was mistaken, since there had not been adequate argument
in
Parliament or the measure was contrary to common sense, and
therefore need not be applied? The Law Lords condemned strongly
6
Broome
v.
Cassell
&
Co.
Lid.
119711 2
Q.B.
354
(C.A.);
[1972]
A.C.
1027
(H.L.);
Srhorsch
Meier CmbH
V.
Hennin
[197S]
Q.B.
416;
and
Miliangos
v.
George Frank
(Textiles) Lid.
[1975]
Q.B.
487
(Bristow
J.
and
C.A.);
119761
A.C.
443
(H.L.).
6
R.
M.
Dworkin,
Taking
Rights
Seriously
(1977),
pp.
110-115.
7
[1964]
A.C.
1129.
8
[
19711
2
Q.B.
354
at
p.
38
1
(per
Lord
Dcnning M.R.).
Ibid. at
p.
397
(per
Phillimore
L.J.).
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