Decisions per Incuriam
![handle is hein.journals/rsjud4 and id is 15 raw text is: DECISIONS PER INCURIAM.
By G. W. PATON, B.C.L. (Oxon), M.A. (Melb.).
Profe8or of Jurisprudence in the University of Melbourne.
The doctrine of precedent can never be applied with mechanical
rigidity. It is difficult to frame specific rules for the ascertainment of the
ratio decidendi of a case, or to draw an exact line between the ratio and
mere obiter dicta. This has been elsewhere discussed.1 The purpose of
this article is to describe some of the difficulties which have arisen in the
Court of Appeal, with special reference to the meaning of the phrases
decisions per incuriam and precedents sub silentio.
Sometimes cases are over-ruled in reality, although theoretically
left standing. Thus in Tidy v. Battman2 Lord Wright treated Baker v.
Longhurst3 with scant ceremony. Similarly when in Maitland v. Rais-
beck4 the decision in Ware v. Garston Haulage5 was cited, Lord Greene
M.R. remarked I do not suppose I shall be saying anything which would
be wrong if I say that I am perfectly certain that the members of the
court on that occasion would have been extremely surprised to find that
that case was going to be considered a case that ought to be reported as
laying down some new principle of law. The report does not suggest
that there was any argument on any authorities referred to. It was a case
of very special facts and, in my opinion, it would be quite wrong, merely
because this has got into the reports, to pick out of it sentences and treat
them as of general application. The case was thus distinguished on the
facts, but the broad doctrine laid down in the previous judgments was
effectively repudiated.
Until 1944, while the orthodox view was that the Court of Appeal was
bound by its own decisions, there was authority emphasising freedom.6
However, in that year the decision in Young v. Bristol Aeroplane Co.'
tightened the operation of the theory, but the flexibility of the common
law is shown by the fact that three exceptions were laid down, which not
only in theory but also in practice, provide wide avenues of escape.
Firstly, the Court may choose between conflicting decisions of its own :
secondly, it must refuse to follow a decision which, although not expressly
overruled, is inconsistent with a decision of the House of Lords: and
thirdly it is not bound to follow a decision of its own given per incuriam.
The footnote8 illustrates how often since 1944 the doctrine of Young's
Case has been discussed by the Court of Appeal. This alone illustrates
1. Goodhart, Essays in Jurisprudene and the Common Law, 1 : Paton and Sawyer, 63 L.Q.R.
(1947) 461.
2. [1934] 1 K.B. 319.
3. [193312 K.B. 461.
4. [1944] 1 K.B. 689.
5. [1944] 1 K.B. 30.
6. e.g. Greer L.J., lie Shoesmith, [1938j 2 K.B. 637.
7. [1944] 1 K.B. 718.
8. In Biothwell v. Caverswall Stone Co. Ltd., [1944] 2 All E.R. 350, the majority held that there
was no irreconcilable conflict between two lines of cases : Battersby v. Anglo-American Oil Co.
Ltd.. [1944] 2 All E.R. 387 (previous decision not followed on ground of conflict) : Fiher v.
Ruislip-Northwood Urban District Council, [1945] 2 All E.R. 458, which deals with an amazingly
confused chain of authorities: Fitzsimons v. Ford Motor Co. Ltd., (Aero Engines), [1946] 1 All
E.R. 429 (inconsistency with House of Lords decision): Wilson v. Chatterton, [1946] 1 All E.R.
431, (conflict between decisions and inconsistency with House of Lords decision): Leathley v.
John Fowler & Co. Ltd., [1946] 2 All E.R. 326 (inconsistency with House of Lords): Williams
v. Glasbrook, [1947] 2 All E.R. 884.](ViewImageLocal?handle=hein.journals/rsjud4&div=6&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Decisions per Incuriam
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most