Stare Decisis In The Court of Appeal
| Date | 01 March 1956 |
| Published date | 01 March 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00349.x |
STARE DECISIS
IN
THE
COURT
OF
APPEAL
ELEVEN
years have passed since the Court of Appeal decided
in
Young
v.
Bristol Aeroplane Company
that
it
was absolutely bound
by its own prior decisions. The rule of
stare decisis,
by which
the court declared that
in
future
it
would be bound, was qualified
by various exceptions.
In
the first place the court held that
if
it
were confronted with two conflicting decisions of its own,
it
would
be wrong to say that
it
was absolutely bound by either;
it
would
be
in
the position of having to choose which of the decisions
it
would follow.
In
the second place the court held that
if
it
were
confronted with
a
decision
of
its
own
which (although not expressly
overruled) could not stand with
a
later decision of the House
of
Lords,
it
would be wrong for
it
to follow such previous decision
of its
own
when a higher court had impliedly declared such decision
to be wrong. These exceptions to the rule are, as Lord Greene
M.R.
said when expounding thema, apparent rather than real.
It
is the third exception, that the court will not consider itself
to be bound by a previous decision where such decision was given
per incuriam,
which is
a
true exception to the rule, and to which
attention must now be given.
In analysing the judgment of Lord Greene
M.X.
in
Young’s
case one must remember that
it
was necessary for the Master
of the Rolls to decide only the facts of the case before him, and
that he was not seeking to venture upon exhaustive definitions;
one must also avoid approaching such judgment
in
the way that
one would approach an Act of Parliament. One must remember
also that the court arrived at its decision in
Young’s
case bearing in
mind the decision
in
Lancaster Motor Co. (London) Ltd.
v.
B~emith.~
In
that case judgment creditors of a company
in
liquidation sought
a
garnishee order in relation to the liquidator’s
account at the bank; the court held that notwithstanding an earlier
decision of the court’
on
substantially the same facts,
in
which
such an order was made,
it
would be wrong and contrary to
authority to make
it.
The earlier decision in the view of the court
was a “judgment delivered without argument and delivered with-
out reference to the crucial words of the rule and without any
citation of authority
. .
.
the court was induced to say what
it
did
. . .
because counsel had not really desired to argue.the point
on
either side.”
‘
1
[l944]
2
All
E.R.
293.
2
[1944]
2
All
E.R.
300.
5
[l944]
2
All
E.R.
11.
4
Gerard
v.
Worth
01
Paria
[193G]
2
A11
E.R.
905.
5
[1941]
2
All
E.R.
13,
per
Sir
Wilfrid
Greene
M.R.
186
To continue reading
Request your trial