Binding precedent and English judicial law-making

David Vong (*)

u... a doctrine which compels judges to synthesize present decisions (or at least articulate the reasons for such decisions) out of the accumulated wisdom (or folly) of their judicial forebears.,, (1)

INTRODUCTION

It is conceivable that all legal systems follow judicial precedents "for it is a natural practice of the human mind, whether legal or non-legal, to accept the same pattern in similar or analogous cases'' (2) : a ratio­nal law demands that like cases be treated alike. So by no means is reliance on judicial precedents a unique feature of English law or other common law systems. What is unique is that English precedents are capable of possessing the quality of a proper source of law arid can bind future judges suitably positioned in the judicial hierarchy unless overruled or distinguished. Continental judicial decisions are not nor­mally accorded the status of a source of law as such but they can nevertheless be followed, and in fact often are. But if a Continental court follows a precedent or if an English court does so ''because a revered master has uttered it, because it is the right decision, because it is logical, because it is just, because it accords with the weight of authority, because it has been generally accepted and acted on, because it secures a beneficial result to the community'', (3) that is not an ap­plication of the doctrine of binding precedent, or stare decisis et quieta non movere as such. The doctrine of binding precedent requires that the rule in a relevant previous decision must be followed ''because it is a previous decision and for no other reason, and it becomes clear that we cannot be certain that the rule is being followed, unless it is contre coeur, just as ... obedience to the categoric imperative is discernible only when something disagreeable is commanded." (4) Hence the com­pliance with the doctrine of binding precedent is exhibited only when

("') London School of Economics, University of London (1) L. Blom-Cooper and G. Drewry, Final Appeal (Oxford 1972) at p. 65 (2) A. Goodhart, "Precedent in English and Continental Law", [1934] 50 Law Quarterly Review 40, 41 (3) M. Radin, "Case Law and Stare Decisis: Concerning Priijudizienrecht in Amerika", (1933) 33 Columbia Law Review 199, 200 (4) ibid., 200-201

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a court holds that it must follow a previous rule and that "the conclu­sion to which the rule constrains it is one which it would not have reached except for the rule, a conclusion, in other words, of which the court does not morally approve, which cannot be rested on conscience, equity or the public welfare.'' (5)

Only in common law systems is the doctrine openly accepted, under the name of stare decisis or binding precedent. In Continental jurispru­dence, as was true of Roman law, emphasis is placed not on any indivi­dual case in particular, but rather "on a series or group of cases crea­ting a practice ... [Therefore a principle] is a rule established by practi­ce as contrasted with the English doctrine of a rule established by the binding authority of an individual case." (6) A relevant English prece­dent is not ''one which may be used as a pattern; it is one which must be followed in the subsequent case. It is more than a model; it has become a fixed and binding rule.'' (7)

The English lawyer has grown accustomed to thinking that the doctri­ne of binding precedent in the common law demonstrates he "superior quality of English law.'' (8) But the real difficulty comes when the English lawyer tries to explain this doctrine to Continental and other Civil lawyers. Insofar as they find the doctrine obvious, they profess themselves ''unable to understand how it could be reconciled with rea­son or justice.'' (9) For the English lawyer who has spent many -years mastering his craft, it may come "as something of a shock to find that the Continental jurist, far from envying the English theory of prece­dent, feels that it is an element of weakness." (10) Lacking any com­prehensive code of the Continental types, it may seem contrary to democratic principles that a handful of English judges should possess de facto law-making power : legislation might be seen as better effec­ting the wishes of the people. (11) It is through the operation of bin­ding precedent that the common law ensures that all judicial decisions become part of the body of English law and are capable of binding subsequent judges in certain courts. Through the acquisition of "the accumulated experience of the past" (12) and by binding later courts, judge-made law provides, on the one hand, for uniformity to a large

(5) ibid., 201 (6) Goodhart, supra, 42-43 (7) ibid., 41 (8) ibid., 43 (9) Radin, supra, 202 (10) Goodhart, supra, 43 (11) Section 12 of the Austrian Civil Code provides that judicial decisions can never have the force of law and cannot be applied to future disputes. (12) Lord Lloyd, Introduction to Jurisprudence (London 1979) at p. 821

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extent, which is one of the most basic demands of justice. On the other hand, rigid adherence to the doctrine of binding precedent could stulti­fy legal progress.

This article seeks to demonstrate that the doctrine of binding precedent can indeed marry stability and continuity with adaptability. The rules which make up this doctrine permit ''new propositions to be establis­hed, old ones [to be] discarded in whole or in part, and permit all this to proceed seemingly on the basis of logical deduction from pre-exis­ting premises." (13) The two basic prerequisites for the operation of the doctrine are discussed first: an effecient system of law reporting and a rigid hierarchy of courts. Secondly, it is sought to deal with the methods of ascertaining the binding part of any precedent, and their inherent problems. Thirdly, this article looks at the various judicial techniques employed in avoiding an otherwise binding precedent ; and fourthly, the values promoted or oppressed by this doctrine are com­pared.

§1. THE DOCTRINE OF BINDING PRECEDENT

It is of paramount importance that judicial decisions should not be like "a restricted railroad ticket, good for this day and train only." (14) Reasons must be given in the judgments if they are to be of any use to future lawyers. Having said that, old English decisions were merely based upon the court's sense of justice. They represented the will of the King and enunciated no legal rules or reasons. Gradually, towards the nineteenth century, the legal climate changed. The increasing amount of commercial activity brought with it the desire for predicta­bility and certainty in the law so that businessmen could arrange their affairs with confidence. On the Continent at the same period, this was realised by codification, but the English adhered to the common law. Secondly, the antiquated concern for formal "forms of action" (15) faded away, thus paving the path for a more coherent common law. Thirdly, law reporting, the efficient operation of which was vital for the adoption of a doctrine of binding precedent, was modernised by the establishment of an incorporated body charged with just this func­tion. (16) Fourthly, the hierarchy of courts as we know it today began

(13) J. Stone, The Province and Function of Law (Sydney 1950) at p. 168 (14) Smith v Allwright 321 US 644, 669 (1944) per Roberts J. (15) Medieval courts were concerned with the forms and procedures relating to "pleading" and the bringing of the case within one of the existing writs which inflexibly circumscribed the forms of action. (16) In 1865, a private body, the Incorporated Society for Law Reporting in England and Wales, began the first permanent modern series of officially sanctioned law reports.

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to take shape and the judicial functions of the House of Lords were placed in the hands of eminent lawyers. (17) Amidst all these changes the doctrine of binding precedent took root, and judges sensed the need to deliver reasoned judgments which could be cited and followed by later courts. Nevertheless, to this day this doctrine is still not en­trenched in legislation. Like the common law, it was made by judges. Judges created this doctrine and they continue to determine its scope and application.

A. Law reporting

The importance of accurate and permanent reports of judicial deci­sions is obvious. The two are intertwined. English judges may take judicial notice of any precedent, even an unreported one, which is vouched for by a member of the Bar who was present when the judg­ment was delivered. Consequently, the theory is that an unreported decision possesses the same authority as a reported one, but in practi­ce, the former is inaccessible and therefore of little, if any, use to lawyers. Even on the rare occassions when an unreported case is cited to a judge and is referred to in his judgment, it cannot be studied by other lawyers simply because of its inaccessibility. ''This all serves to add to the inaccessibility of the law not only to the layman - who has presumably grown accustomed to such a state of affairs - but, para­doxically, even to the lawyer." (18)

Given the importance in England of good and systematic series of law reports, it may seem odd that there is no official series. Ever since law reporting began, it has been the responsibility of private enterprises who decide themselves which cases to publish. The decision rests solely on the individual reporter concerned, and the only test is one of utility to the legal profession.

The early Year Books (19) were more akin to manuals of pleadings and procedure than to law reports, and possess almost no practical use today. It was only in 1757 that the first resemblance of modern law reports appeared. Burrow's Reports (20) published cases in the same format as reports today: headnote, facts, arguments, decision, and then the judgment. In 1865, publication of the "Law Reports" began.

(17) Today, the legislative and judicial functions of the House of Lords are separate and independent of one another. Although judges of the House (the Law Lords) can freely participate in debates in the legislative chamber other Members of the House have no right to sit on the Bench. (18) see Report of the Law Reporting Committee (Her Majesty's Stationery Office 1940) (19) from 1282 to 1537 (20) from 1757 to 1771

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Although not an official series, they are, the series to which any court should be referred if a case that is cited is reported in them. The Law Reports enjoy the advantage that their judgments have been revised by the judges themselves before publication. This is not an insignificant exercise when it is realised that, unlike those of many Continental ju­risdictions, most judgments, other than those of the House of Lords, are not reserved. They are delivered off-the-cuff immediately after the end of oral arguments. Yet many decisions are not reported in the Law Reports, in which case recourse must be had to other less authoritative series of reports. (21) The present proliferation of private series of law reports raises many problems including, inter alia, (i) expense and ac­comodation ; (ii) the needless duplication of reports in several series ; (iii) the difficulty of tracing authorities from the growing number of cases ; (iv) the danger of textual variants between different series, and inaccuracies in the less authoritative series ; and (v) the overlooking of important cases. (22)

The suggestion that there should be a monopoly of the right of citation in courts for a single set of official reports has been rejected because of the "fundamental fact that the law of England is what it is not because it has been so reported but because it has been so deci­ded.'' (23) This theory looks good on paper but in practice it is a well­known fiction since unreported cases are inaccessible. Outside the "Law Reports", the officially sanctioned (though still private) Weekly Law Reports publish about 70 per cent of the decisions of the House of Lords and the Privy Council. (24) But the figure is under 25 per cent for decisions of the Court of Appeal. So many other cases, in particu­lar those concerning more specialised fields of the law, need to be searched for in the mass of other less authoritative series which are not officially sanctioned. Perhaps it is some consolation to say that the English lawyer has grown accustomed to the proliferation of reported cases and takes the system for granted. Nevertheless the growing width, complexity, and technicality ·of the common law demonstrate genuine cause for concern about the state of law reporting in England. The lawyer has the duty to cite all relevant authorities to the court, but he has the perhaps unenviable task of having to ascertain these autho­rities from a mass of reported English decisions scattered amongst rna-

(21) for instance, All England Law Reports, Reports of Tax Cases, Industrial Relations Law Reports, etc. (22) see R. Munday, "New Dimensions of Precedent", (1978) Journal of the Society of Public Teachers of Law 201 (23) see note 18, supra (24) see M. Zander, The Law-Making Process (London 1980) at p. 146

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ny series of law reports, not to mention unreported decisions and other highly persuasive decisions from the British Commonwealth as well.

B. The hierarchy of courts

The House of Lords sits at the apex of the English hierarchy. The general rule (25) is that the binding portion of a precedent, that is, the ratio decidendi, only binds judges sitting in courts that are inferior in the hierarchy to the court which delivered the precedent. An exception exists for the Court of Appeal, details of which are considered below. In no other legal system is the distinction between superior and inferior courts more marked than in common law systems. The higher the court the greater is its law-making power. Hence decisions of the Hou­se of Lords bind all other courts. Decisions of the Court of Appeal bind all courts except the House of Lords. Decisions of the High Court do not bind itself, the Court of Appeal or the House of Lords. At the very bottom, decisions of county courts and magistrates' courts bind no courts at all, and so they possess no law-making capacity. It is to details of this structure that we now turn.

1. The House of Lords

The ratio in a decision of the House of Lords binds all English courts (26) except itself. But before this exception was introduced, the House had held in 1898 that it was bound by all its own decisions, (27) even, for that matter, erroneous ones. Consequently, there was the risk that an erroneous decision, which continued to bind the House of Lords itself, would lead to future cases of individual hardship. Never­theless, it was thought that such "occasional interference with what [was] perhaps abstract justice" (28) was justified as against the incon­venience "of having each question subject to being re-argued and the dealings of mankind rendered doubtful by reason of different deci­sions, so that in truth and in fact there would be no real final court of appeal." (29) This rule was widely criticised because "to use a House of Lords precedent to establish the rule that the House is bound by its own precedents is to argue in a circle.'' (30)

(25) for exceptions, see infra; for example, is a court bound by its own decisions? (26) " ... the only judicial means by which decisions of this House can be reviewed is by this House itself, under the declaration of 1966", Miliangos v George Frank (Textiles) Ltd [1976] AC 443, 459 per Lord Wilberforce (27) London Tramways v London County Council [1898] AC 375 (28) ibid., 380 per Lord Halsbury (29) ibid. (30) D. MacCormick, "Can Stare Decisis be Abolished?", (1966) Juridical Review 196, 196

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Eventually, in 1966, after almost a century of criticism, the House of Lords decided to free itself from its shackles and permitted itself the pleasure to depart from its own previous decisions. The House of Lords removed its fetters by delivering a Practice Statement, outside the conduct of any appellate proceedings, which marked a turning point in the legal history, if not the legal progression, of the House. Due regard was paid to the essential role of binding precedent :

''Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so." (31)

This relaxation was in part designed to enable the House of Lords to pay greater attention to decisions of the superior courts in the British Commonwealth (32) if they differed from pronouncements of the Hou­se and, where "it appears right to do so", to "modify the previous pronouncements when they cease to conform with the social philoso­phy of the day.'' (33) The potential impact of Commonwealth decisions was substantial because their highest courts had the ability to overrule their own decisions thereby bringing about change faster than in Eng­land. But is practice this newly-acquired freedom has been very sparin­gly exercised. In fact it took six years before the House of Lords, for the first time, expressly overruled one of its earlier decisions. (34)

Their Lordships consider that the mere discovery that one of its earlier decisions had been wrong does not of itself justify a departure from it. (35) They have expressed their immense reluctance to overrule their own decisions in no uncertain terms : ''the typical case for reconside­ring an old decision is where some broad issue is involved, and that it should only be in rare cases that we should reconsider questions of construction of statutes or other documents.'' (36)The greatly prized and highly valued and ''distinctive advantage of finality should not be

(31) Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 (32) especially, it was thought, the High Court of Australia, and the Supreme Court of Canada (33) Lord Evershed, The Court of Appeal in England (London 1950) at p. 18 (34) British Railways Board v Herrington [1972] AC 877 (35) see Jones v Secretary of State for Social Services [1972] 1 AC 944 (36) ibid., 966 per Lord Reid

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thrown away by too ready use of the recently declared liberty to depart from previous decisions" (37) because unless "the cases, first and sub­sequent, wholly coincide, there may be a doubt which decision ... pre­vails, and litigants may be encouraged ... to take the chance of an appeal here, in the hope of procuring a departure." (38)

In spite of their Lordships' own reluctance, two bodies do have the authority to overrule decisions of the House of Lords, viz., Parliament by legislation, and the European court. Indeed, the European Commu­nities Act 1972 provides that any question concerning the legal opera­tion of the EEC Treaties or instruments shall be determined ''in accor­dance with the principles laid down by and any relevant decisions of the European Court.'' (39)

Further, even if not overruled by judicial or legislative means, the au­thority of a decision of the House of Lords may nevertheless be diminished if it is distinguished. (40) Any court in England can distin­guish a House of Lords decision by confining it to its narrow facts, thereby limiting the scope of its authority. In practice, this method was widely used by the House of Lords itself before 1966 to avoid an otherwise binding precedent, and is still the most common method used by lower courts who wish to avoid an otherwise binding prece­dent.

2. The Court of Appeal

The Court of Appeal "has a duty to apply (that is, is bound to follow) any decision of the House of Lords which ... actually settles or covers the particular dispu­te before the Court" (41)

For a long time there had been no doubt that a ratio in a decision of the House of Lords bound the Court of Appeal in future cases. But in 1972, the rigidity of this rule was disputed by the Court of Appeal in Broome v Cassell Co. Ltd. ( 42) It was one of the stages of the then Master of the Rolls, Lord Denning's lengthy campaign to free the

(37) ibid., 996 per Lord Pearson (38) ibid., 995 per Lord Wilberforce (39) section 3(1) (40) i.e., by confining the decision to the narrow facts of the earlier case; see infra (41) C. Rickett, "Precedent in the Court of Appeal", [1980] 43 Modern Law Review 136, 137 (42) [1971] 2 QB 354 (Court of Appeal: Lord Denning MR, Lords Justices Salmon and Phillimore)

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Court of Appeal of blind subservience to the House of Lords. The dispute arose over the question whether the Court of Appeal was bound by a previous decision of the House of Lords in Rookes v Barnard ( 43) in 1964. In that earlier case, the Hous of Lords had laid down three types of circumstances in which exemplary damages could be awarded. A unanimous Court of Appeal, presided over by Lord Denning MR, held that the decision of the House in Rookes v Barnard was per incuriam, that is, the House had overlooked two other relevant House of Lords decisions. (44) Since the decision was per incuriam, the Court of Appeal held that it was not binding.

When Cassell v Broome went on appeal to the House of Lords, the Court of Appeal was firmly rebuffed. (45) In discussing whether the Court of Appeal could avoid an otherwise binding precedent of the House of Lords merely by declaring it per incuriam, the Lord Chancel­lor, Lord Hailsham, reaffirmed in strong language that the House would not tolerate any disloyalty in the Court of Appeal. Unwavering hierarchical loyalty was considered more important than judicial indi­viduality:

"it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way ... and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers." (46)

Unshaken, Lord Denning MR, in the Court of Appeal, took up the issue again in Schorsch Meier G.m.b.H. v Henning. (47) the question was whether the Court of Appeal must follow a House of Lords prece­dent (48) which had held that an English court could not award a judg­ment in a foreign currency. Having failed on the per incuriam ground in Cassell v Broome, Lord Denning used another reason to justify a departure from a House of Lords precedent. He decided that the old rule forbidding judgment in a foreign currency was created in the light of national economic conditions in 1961, and since conditions had changed by 1974, the rule should be obsolete. "Those reasons for the rule have now ceased to exist. .. Seeing that the reasons no longer exist,

(43) [1964] AC 1129 (44) E. Hulton & Co. v Jones [1910] AC 20; Ley v Hamilton (1935) 153 LT 384 (45) [1972] AC 1027 (House of Lords: Lord Hailsham LC, Lords Reid, Wilberforce, Di­plock and Kilbrandon) (46) ibid., 1054 (47) [1975] 1 QB 416 (Court of Appeal: Lord Denning MR, Mr Justice Foster; Lord Justice Lawton dissenting) (48) Re United Railways of the Havana and Regia Warehouses [1961] AC 1001

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we are at liberty to discard the rule itself. Cessante ratione legis cessat ipsa lex.,, (49)

By applying this cessante ratione principle (i.e., a ''changed condi­tions" rule), he therefore concluded that the old House of Lords rule was obsolete and no longer bound any court. Lord Justice Lawton, dissenting, decided that it was improper to depart from the old House of Lords rule. He admitted that he stood "in awe of the House of Lords" (50) and, like a true traditionalist, he declared that it was his "duty to apply the law, not to reform it." (51) This case did not go on appeal to the House of Lords, but a similar issue arose for the House of Lords' consideration a year later in Miliangos v George Frank (Tex­tiles) Ltd. (52) Four of the five Law Lords agreed that their old rule regarding the currency of a judgment should be changed. In this aspect they agreed with the majority in the Court of Appeal in Schorsch Meier. But all five went on to concur that the change should be made by the House of Lords themselves, and certainly not by the Court of Appeal. Lord Simon rebuked the approach in Schorsch Meier (53) on the ground that the Court of Appeal in that case had wrongfully ap­plied the cessante ratione principle :

"Since the Court of Appeal is absolutely bound by a decision of the House of Lords ... it would be surprising if the meaning and application of the maxim 'cessante ratione' were really that accepted by the majority of the Court of Appeal in Schorsch Meier ... For as such it would enable any court in the land to disclaim any authority of any higher court on the ground that the reason which had led to such higher court's formulation of the rule of law was no longer relevant. A rule rooted in history could be reversed because history is the bunk of the past. Indeed, taken literally, there is no ground for limiting 'lex' to judge-made law . . . It would br easy to compile a bulky anthology of authoritative citations to show that those courts of law which are bound by the rule of precedent are not free to disregard an established rule of law because they conceive that another of their own devising might be more reasonable . . . . '' (5:4)

Lord Cross went even further to state that all decisions of the House of Lords bound the Court of Appeal, regardless of any meaning of cessante ratione:

(49) [1975] 1 QB 416, 425 (50) ibid., 430 (51) ibid. (52) [1976] AC 443 (House of Lords: Lords Wilberforce, Simon, Cross, Edmund-Davies, and Fraser) (53) [1975] 1 QB 416 (54) [1976] AC 443, 472

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"It is not for any inferior court - be it a county court or a division of the Court of Appeal presided over by Lord Denning - to review decisions of this House. Such a review can only be undertaken by this House itself under the declaration of 1966." (55)

In view of these very strong remarks from the House of Lords, it may be that it is settled, at least for the time being, that the Court of Appeal is definitely bound by all decisions of the House, subject only to two exceptions, viz., firstly, the Court of Appeal can refuse to fol­low any statement of the House of Lords which was not the ratio ; and secondly, the Court of Appeal can freely choose which of two clearly inconsistent House of Lords decisions to follow. (56)

On the other hand, is the Court of Appeal bound by its own deci­sions? For a long time, it had been taken for granted that the Civil Division of the Court of Appeal was so bound. In 1944 in Young v Bristol Aeroplane Co. Ltd. (57) the Court of Appeal had confirmed this to be a general rule, but subject to three exceptions :

"(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam." (58)

Following the House of Lords' announcement of its Practice State­ment (59) in 1966, Lord Denning MR tried to establish the same princi­ple for the Court of Appeal. The dispute was bound to arise. The High Court has never been bound by its own decisions ( 60) and the House of Lords has freed itself of its own fetters. So why should the Court of Appeal be the only English court to be bound by its own decisions ? Lord Denning opined that the Court of Appeal was "of course, bound by the decisions of the House, but I do not think we are bound by prior decisions of our own, or at any rate, not absolutely bound. We are not fettered as it was once thought. It was a self-imposed limita­tion," and therefore it can be removed. "The House of Lords have done it. So why should not we do likewise?" (61) He gave further reasons in 1979 in Davis v Johnson: (62)

(55) ibid., 496 (56) Broome v Cassell Co. Ltd., supra, (House of Lords) 1107 per Viscount Dilhorne (57) [1944] KB 718 (58) ibid., 725 per Lord Greene MR (59) note 31, supra (60) see infra (61) Gallie v Young [1969] 2 Ch 17, 37 (62) [1979] AC 264 (Court of Appeal: Lord Denning MR, Sir George Baker, P., Lord Justice Shaw; Lords Justices Goff and Cumming-Bruce dissenting)

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'' ... whilst this court should regard itself as normally bound by a previous decision of the court, nevertheless it should be at liberty to depart from it if it is convinced that the previous decision was wrong ... It is said that, if an error has been made, this court has no option but to continue the error and leave it to be corrected by the House of Lords. The answer is this: the House of Lords may never have an opportunity to correct the error ; and thus it may be perpetuated indefinitely, perhaps for ever." (63)

He explained how, in the old days, poverty effectively eliminated the losing litigant's opportunity to appeal:

"A poor person had to accept the decision of this court because he had not the means to take it to the House of Lords ... Even today a person of moderate means may be outside the legal aid scheme, and not be able to take his case higher, especially with the risk of failure attaching to it." (64)

There were other factors too, apart from monetary considerations, which influenced the decision to appeal to the House of Lords or not :

" ... there have been many instances where cases have been settled pending an appeal to the House of Lords ; or for one reason or another, not taken there, especially with claims against insurance companies or big employers. When such a body has obtained a decision of this court in its favour, it will buy off an appeal to the House of Lords by paying ample compen­sation to the appellant. By so doing, it will have a legal precedent on its side which it can use with effect in later cases ... By such means an erroneous decision on a point of law can again be perpetuated forever ... So I suggest that we are entitled to lay down new guidelines to those adopted by the House of Lords in 1966. Whenever it appears to this court that a previous decision was wrong, we should be at liberty to depart from it if we think it right to do so." (65)

It may be that Lord Denning's opinion was supported by the House of Lords' recognition of the danger of injustice if bad decisions had to be blindly followed. (66) But perhaps the most compelling support is that ''by his judicial oath a judge binds himself to do 'right to all manner of people after the laws and usages of this Realm'." (67) Where a prece­dent of the Court of Appeal is found to be erroneous, should the Court, as a matter of principle, be allowed to correct it? The issue is really whether "a rigid adherence to what appears to be plainly wrong conduces to the purity of justice or respect for its administra­tion." (68) The fear is that a strict application of the doctrine of bin­ding precedent to bind the Court of Appeal to its previous decisions means that the Court of Appeal will be forced to resort to distil!gui-

(63) ibid., 278 (64) ibid. (65) ibid., 278-281 (66) see Practice Statement, supra (67) [1979] AC 264, 290 per Sir George Baker P. (68) ibid., 307 per Lord Justice Shaw

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shing the indistinguishable. Confusion would be generated and certain­ty in the law would be lost.

When Davis v Johnson went on appeal to the House of Lords, the view of the majority of the Court of Appeal was rejected and their Lordships affirmed that the rule in Young's case continued to bind the Court of Appeal. ( 69) Hence the Court of Appeal was not to be as free as the House of Lords and it could not freely depart from its own decisions. But why one rule for the House of Lords and another one for the Court of Appeal? Lord Diplock, in the House of Lords, said that the House was an appellate court of last resort, so "a balance must be struck between the need on the one side for the legal certainty resulting from the binding effect of previous decisions and on the other side the avoidance of undue restriction on the proper development of the law.'' (70) But since the Court of Appeal was merely an intermedia­te appellate court he opined that the latter consideration could be ta­ken care of by appeal to the House of Lords. Lord Salmon said that he sympathised with Lord Denning's views but expressed his fears that the law would lose certainty if the Court of Appeal were permitted to depart from its decisions :

"until such time, if ever, as all his colleagues in the Court of Appeal agree with those views, stare decisis must still hold the field. I think that this may be no bad thing. Thert are now as many as seventeen Lords Justices in the Court of Appeal, and I fear that if stare decisis disappears from that court there is a real risk that there might be a plethora of conflicting decisions which would create a state of irremediable confusion and uncertainty in the law. This would do far more harm than the occasional unjust result which stare decisis sometimes produces but which can be remedied by an appeal to your Lordships' House." (71)

The emphasis is clearly on certainty. Certainty is prized in English law as the means of "enabling persons to obtain definite advice on which they can order their affairs.'' (72) The House of Lords, as the final appellate court, is available to correct any errors of the Court of Ap­peal therefore obviating the need for the latter to consider a departure from its own cases. Certainty overrides individuality or creativity and "what may be thought [the Court of Appeal's] timorous subservience to judicial precedent is ... preferable to the uncertainty which will be introduced into the law in fields not easy to delimit by the bolder work of demolition and restoration" (73) of that court. Unless care is taken

(69) [1979] AC 317 (House of Lords: Lords Diplock, Dilhorne, Kilbrandon, Salmon and Scarman) · (70) ibid.' 326 (71) ibid., 344 (72) [1979] AC 264, 292-293 per Lord Justice Goff (73) Barrington v Lee [1972] 1 QB 326, 345 per Lord Justice Stephenson

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in the straightening out of the law, it will be bent until eventually it is broken.

Linked with certainty is the central position that is occupied by the Court of Appeal : superior to the High Court but inferior to the House of Lords. This position of the Court is ''responsible for its stability, its consistency, and its predictability." (74) Apart from exceptional cases, the Court of Appeal "sits always in divisions of three ... If, therefore, throwing aside the restraints of Young, one division of the court should refuse to refuse another because it believed the other's decision to be wrong, there would be a risk of confusion and doubt arising where there should be consistency and certainty.'' (75)

Lord Denning, however, remains unrepentant. He insists that he is "consoled to find that there are many Courts of Appeal in the Com­monwealth which adopt the course which I have advocated. So this has made my dissent worthwhile." (76)

On the other hand the Criminal Division of the Court of Appeal is permitted much greater flexibility because of the nature of its work. It regularly deals with important questions involving liberty of the per­son, so if it finds that a man has been imprisoned as a result of the law being either misapplied or misunderstood in a decision which the Court has itself previously given, it has the duty to reconsider that decision to see whether the conviction was proper. (77) Certainty is to an extent subordinated to flexibility in order to achieve a just result.

3. Other Courts

Decisions of trial courts do not bind those courts themselves. Thus High Court decisions do not bind any High Court judges, though they do bind the lowest tier of the hierarchy, that is, magistrates' courts and county courts. Naturally, a High Court will probably think twice be­fore he decides to depart from a past High Court decision, if only because of comity to his brethren. Decisions of the two courts in the lowest tier bind no English courts. Likewise decisions of the Judicial Committee of the Privy Council, which hears appeals from certain Commonwealth jurisdictions, do not bind any English courts. The Pri­vy Council is somewhat anomalous in the hierarchy in that it conducts proceedings in London but its decisions do not bind any English

(74) Farrell v Alexander [1976] 1 All ER 129, 147 per Lord Justice Scarman (75) Tiverton Estates Ltd. v Wearwe/1 Ltd. [1975] Ch 146, 172 per Lord Justice Scarman (76) Lord Denning, The Discipline of Law (London 1979) at p. 300 (77) seeR v Taylor [1950] 2 KB 368

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judges. In fact, the unique constitutional position of the Privy Council is borne out by its practice of giving advice to Her Majesty rather than a judgment. But since the composition of the Judicial Committee is largely the same as that of the House of Lords, its decisions are usually highly regarded by English judges.

§2. FINDING THE RATIO DECIDENDI

The usefulness of binding precedents can only be realised if the binding portion of the judgment can be readily isolated from the law report. The modern English law report begins with key words which seek to indicate the main points involved, followed by a headnote summari­sing the facts and the final decision of the court, and then, in some series, a summary of arguments of counsel, and finally the judgment in full or a relevant portion thereof. If a decision can absolutely bind later courts, it is imperative that there should be some rational way to determine which part it is that binds, i.e., to determine the ratio deci­dendi.

The traditional theory of ratio decidendi had been to regard the ratio as simply the legal principle formulated by the earlier court in relation to the matter decided. (78)However this theory was unworkable in tho­se, albeit rare, cases where no reasons were expressly given and no legal principle was formulated by the court, nor could any be implied. One modern theory that overcomes this handicap suggests elucidation of the ratio from the facts of the case, rather than from the principle propounded by the earlier court. (79) First, the facts which the earlier court had specifically or impliedly treated as immaterial must be consi­dered immaterial. Secondly, facts which had been specifically stated to be material must be treated as material. Thirdly, if the judge had not distinguished between material and immaterial facts, then all the facts mentioned in the judgment which were not prima facie immaterial must be treated as material.

The difficulty with the first and second points above is that only a strong judge who had no doubts whatsoever over his line of reasoning would have had stated the precise grounds of his decisions. "Too often the cautious judge [would have included] in his opinion facts which [were] not essential to his judgment, leaving it for future generations to determine whether or not these facts constitute a part of the ratio

(78) see J. Montrose, "Ratio Decidendi and the House of Lords" in J. Montrose, Precedent in English Law and Other Essays (Shannon, Ireland 1968) at p. 151 (79) see A. Goodhart, "Determining the Ratio Decidendi of a Case", (1930) 40 Yale Law Journal 161

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decidendi. (80) Consequently, it may be difficult to discern the precise ratio from the rest of the judgment, i.e., the mass of obiter dicta. It becomes more complex when each of the judges agreed as to the result but reached it via different lines of reasoning. Moreover, the earlier judge is deemed to be the sole referee in determining which facts were material and which were not. No later court, having ascertained what facts had been found to be material, can dispute such a finding even if it should appear that the earlier judge had based his decision on a mistaken fact. If we are bound by the facts as treated by the earlier judge, ''may not this enable him deliberately or by inadvertence to decide a case which was not before him by basing his decision upon facts stated by him to be real and material but actually non-exis­tent?" (81) The most common fall-back for later judges is simply to distinguish the earlier decision, thus restricting its authority.

The third point above, however, stresses the advantage in this theory in that there is a presumption against wide principles of law. At root is the desire that a judge should expound relevant principles only, i.e., he "should not in formulating and enunciating legal rules go beyond the immediate requirements of the case'' (82) before him because, in the English adversarial system of litigation, he would not have had the benefit of listening to legal arguments of counsel on those irrelevant issues. So any legal principle enunciated that was based upon a fact not treated by the earlier judge as material must be a mere obiter dictum. ''Without some criterion of relevance the judicial power of rule­making seems to have no limit." (83) So if the earlier judge came to conclusion which he said he would have reached had a certain hypo­thetical fact been in existence, then that conclusion is necessarily a dictum, and is incapable of being a binding precedent. It is most im­portant that the law adheres to this distinction between the ratio and dicta, which is "in essence a distinction between relevance and irrele­vance." (84)

So the more material facts there are, the narrower the principle, e.g., in a recent case a wife was informed of her husband's accident on the road. Upon arriving at the hospital she saw the state of her seriously wounded husband and suffered nervous shock. (85) It was held that

(80) ibid. (81) ibid. (82) A. Simpson, "The Ratio Decidendi of a Case and the Doctrine of Binding Precedent" in Guest (ed.), Oxford Essays in Jurisprudence (Oxford 1961) p. 148 at p. 164 (83) ibid., 161 (84) ibid. (85) McLoughlin v O'Brien [1983] 1 AC 410

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she could recover damages for nervous shock. If the fact that she saw the aftermath was material, then the principle of law, i.e. the ratio decidendi, would be narrower than it would be if it were not material. For if it were immaterial, the ratio would be wide enough to allow recovery to any wife who suffered nervous shock after hearing of her husband's injury.

But how is a particular fact to be ascertained as material or not in the first place? Unless the judge said so unequivocably one way or ano­ther, which is unlikely, there is no logically valid method whereby a later judge, looking at one particular earlier decision, can decide "with certainty that the facts A, B and C are 'material', while facts D-J are not. For in mere logic ... it is possible to draw as many general propo­sitions from a given decision as there are possible combinations for distinguishable facts in it. But merely looking at the facts it is impossi­ble logically to say which are to be taken as the basis ·for the ratio decidendi.'' (86) Some writers have mistakenly tried to identify this with American Realism, which stresses that what is important is what judges do rather than what they say. They fear that (87) "a doctrine which finds the principle of a case in its material facts leaves us with hardly any general legal principles, for facts are infinitely various." (88) They believe that the ratio of an earlier decision is anything that later courts construe it to be rather than the actual findings of the earlier judge himself. However, this belief is inconsistent with the theo­ry of binding precedent which compels later judges to follow the fin­dings of earlier judges as to which facts were material or not. The later judge certainly has some discretion because he has to interprete the earlier judgment to ascertain which facts had been originally treated as material but this is not quite the same as having the alleged discretion to construct a new principle out of past decisions. Undisputedly, facts can be infinitely various but actually the material facts that can arise in any given set of similar cases are quite limited. Material facts are gene­ralisations from 'brute facts' or raw facts as such. They are on a higher plane of abstraction than raw facts and as such are liable to recur in later cases. This criticism would have had more force if it had stressed that the door is in fact open for varying opinions as to what facts the earlier judge had treated as material, and this is true regardless whether we label it interpretation of the earlier decision or construction of a new rule out of it.

(86) J. Stone, "The Ratio of the Ratio Decidendi", [1959] 22 Modern Law Review 597 (87) 6ee Goodhart (note 79, supra) (88) ibid.

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Having so determined the material facts, admittedly not without diffi­culty, the ratio is identified ''in the conclusion reached by the judges on the basis of the material facts and on the exclusion of the immateri­al ones.'' (89) This ratio represents the legal rule that can bind a subse­quent judge. In effect, certain basic generalisations can be made: (90) (a) the ratio is not found in the stated reasons or in the stated rule of law (because it may have been stated too widely) ; (b) the ratio is not necessarily found by a consideration of all the ascertainable facts and the decision (because many of the facts may have been immaterial); (c) the ratio is found by considering the facts that the judge treated as material and his decision based on those facts and also by bearing in mind those facts he treated as immaterial (because they help to narrow the scope of the ratio).

The root reason for all these complexities is that, unlike many of his Continental brothers, an English judge is under no obligation to pro­duce reasons in his judgment. Reasons are not legally required and a decision with no reasons is nevertheless binding. But since the common law consists essentially of decided cases, the need for reasoned judg­ments could not be sidestepped. A binding decision with no reasons is of little, if any, use to subsequent judges. However, since there is no compulsion to give reasons, judges do not give precise judgments which respond to the litigants' submissions point by point, as is the case in France and Belgium, (91) where highly technical judgments are given. There is, in fact, no set pattern of judgments : "some judgments are rambling and obscure; others are short and precise.'' (92)Neverthe­less, judgments are commonly delivered in such a way as to analyse and explain past decisions as a means of reasoning. Continental judg­ments frequently give reasons which deal only with the individual deci­sion, whereas English judgments seek to explain the development of the common law hitherto and look to the future. Herein lies the real law-making power of English judges. A judge decides a case on the basis of some past event and ''the ratio of it serves as a norm for the future. No one can foresee the precise situations that will arise, so the ratio has to be capable of covering an indefinite range of broadly simi­lar situations, i.e., it is a generalisation drawn from a specific past happening and projected into the future.'' (93) Fear that the ratio may therefore become far too general and broad is unfounded because ''the generality of the expressions which may be found there are not inten-

(89) ibid. (90) ibid. (91) also: Spain, Portugal, The Netherlands (92) Simpson (note 82, supra) 168 (93) R. Dias, Jurisprudence (London 1976) at p. 181

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ded to be expositions of the whole law, but governed and qualified by the particular facts of the case.'' (94)

Hitherto, judges have not been able to settle on one approach to the doctrine of binding precedent and the concept of ratio decidendi. It has been reported that there are no less than sixty-four techniques for handling precedents. (95) Courts commonly resort to competing ver­sions of the determination of the ratio, and several judges sitting in the same court may give different conclusions as to the ratio of any parti­cular precedent. The fact is that judges do not and are never going to bind themselves rigidly to any one precise method. By approaching different cases in different ways, they retain the freedom to manoeu­vre. When interpreting and scrutinising the facts and language of a precedent, a judge will be influenced by many general factors inclu­ding, inter alia, the age of the precedent, the composition of the court, the arguments that had been submitted to the court, his own sense of justice, and the extent to which it is desirable to extend or limit the express formulations of the precedent. (96) Thus far, "few attempts have been made to state any rules by which these general principles can be determined" (97) and it reveals the desire of the judiciary not to shackle the doctrine of binding precedent and so tie their hands need­lessly.

§3. THE AUTHORITY OF NON-BINDING PRINCIPLES

Not every "passing expression of a judge, however eminent, can be treated as an ex cathedra statement.'' (98)

A. Obiter dicta

All statements of law enunciated by judges which are not ratione_s are obiter dicta. Dicta possess merely persuasive authority although they may carry great weight if delivered by an appellate court. Lower courts regard the House of Lords' dicta with particular reverrence. Dicta in­clude propositions stated by way of illustration and those stated on hypothetical facts. Legal principles in judgments delivered by a court

(94) Quinn v Leatham [1901] AC 495, 506 per Lord Halsbury (95) K. Llewellyn, The Common Law Tradition (Boston 1960) at pp 77 ff. (96) Although all judges sitting in the same court are of equal status, it is commonly believed that some are more equal than others. So, such great judges of the past would include, inter alia, Lord Atkin and Lords Justices Bowen and Scrutton. (97) see Goodhart (note 79, supra) (98) London Graving Dock Co. Ltd. v Horton [1951] AC 737, 748 per Lord Porter

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not in a hierarchical position to bind the present court also fall to be considered in the same category.

Three principles seem to emerge in relation to the treatment of such non-binding precedents. (99) First, there is a negative obligation on the judge not to disregard, ab initio, as irrelevant anything said in English law reports. This appears to extend to law reports from other major Commonwealth appellate courts, for instance, those of Australia and Canada usually command fairly persuasive force in England.

Secondly, the weight accorded to dicta depends on the hierarchical position of the earlier court in relation to the present court, the num­ber of judges who had concurred in the dicta, the relevancy of those dicta to the earlier case, and whether they are in line ·with other princi­ples expounded elsewhere. (100) Thirdly, some dicta may become firm­ly entrenched through the passage of time. But this has been doubted by the House of Lords, which has suggested that mere passage of time is insufficient. More is required, viz., ''when a rule is so deeply entren­ched that it has infected the whole legal system, or the choice of a new rule involves more far-reaching research than courts can carry out." (101)

B. Overruled decisions

In general, judges are reluctant to overrule old decisions. (102) They usually favour gradual legal development rather than instant chang~s. It has been suggested that due to the very background of judges, the judiciary has ''its strong adherence to the maintenance of law and order, ... and its concern for the preservation of the moral and social behaviour to which it is accustomed." (103) At any rate, they value certainty in the law and do not wish to disturb existing arrangements entered into between individuals. So, when a precedent is eventually overruled, it goes to show that the precedent itself is not merely ano­malous simpliciter. Usually it is something that is blatantly wrong. Only higher courts can overrule an erroneous decision.

(99) J. Harris, Legal Philosophies (London 1980) at p. 161 (100) "If we thought that the diet, though obiter, expressed the true construction of the Act, we ought to follow them." Zeidman v Owen [1950] 1 KB 593, 596 per Lord Goddard CJ. (101) Miliangos' case, supra, 469 per Lord Wilberforce (102) Indeed the authority of a decision may increase with its age since the fact that it has not been tampered with by subsequent judges shows that they tend to regard themselves as bound by it. (103) J. Griffith, The Politics of the Judiciary (London 1977) at p. 204

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C. Reversed decisions

When a case goes on appeal, the higher court may affirm or reverse the decision of the lower court on new grounds which were not discussed by the latter. In effect, the ratio of the lower court's decision may be left intact and not commented upon at all. What is the status of the ratio of the lower court then ? Two contrary solutions have been offe­red by the courts. The first is to treat the ratio of the lower court as effectively overruled if the decision was affirmed on different grounds:

''When the House of Lords affirm a decision on different grounds from those of the Court below, it is ... proof ... that they do not agree with those grounds. Therefore a judgment so affirmed, so far from leaving the judgment of the Court of Appeal intact, shews the contra­ry, and that you are no longer bound by it." (104)

On the other hand, perhaps the fact that the appellate court left the reasoning of the lower intact shows that there was no disagreement with those reasons :

"Lord Cairns, [in the House of Lords], expressed a strong doubt whether the opinion of the Court of Appeal in that respect could be maintained, but the appeal was dismissed on a different ground ... In my view I am clearly bound by the decision of the Court of Appeal until it is overruled." (105)

Before the matter is fully resolved, it appears that a subsequent judge has great freedom to deal as he pleases.

D. Per incuriam

As seen above, the Court of Appeal had established in Young v Bristol Aeroplane Co. Ltd. (106) that it was not bound by its own decision if that decision had overlooked a relevant authority, i.e., it was reached per incuriam. This technique is not applicable in relation to otherwise binding decisions of a higher court. Hence, in Broome v Cassell (107) it has been seen that the House of Lords condemned the Court of Appeal for having a House of Lords decision per incuriam. This, it was said, "would have put judges of first instance in an embarrassing position, as driving them to take sides in an unedifying dispute between the Court of Appeal ... and the House of Lords." (108)Thus the scope of application of per incuriam is severely restricted. In fact,

(104) Hack v London Provident Building Society (1883) 73 Ch 103, 112 per Jessel MR (105) Curtis Moffat, Ltd. v Wheeler [1929] 2 Ch 224, 234 per Mr Justice Maugham (106) supra (107) supra (108) ibid., 1054 per Lord Hailsham LC

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as "a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance of forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned," (109) provided that the decision being declared per incuriam was not delivered by a court hier­archically higher than the present court.

E. Cessante ratione

''When the nature of things change, the rules of law must change too.'' (110) Lord Denning MR adopted this in the Miliangos case: "When the nature of sterling changes, the rule of law may change too." (111) As already seen, he was firmly rebuked by the House of Lords for doing this. (112)It is felt that the House of Lords' reluctance to permit a wider application of cessante ratione is because of the perpetuation of the declaratory theory of the common law, that is, that caselaw only reflects what has always been the law: "If, of course, the law-making function of courts is admitted, then it would be easy to reject out-of-date precedents openly on the ground of changed condi­tions." (113) As it is now, cessante ratione applies only to precedents which are not otherwise binding, therefore, for instance, the Court of Appeal is not permitted to declare a House of Lords precedent cessan­te ratione.

F. Distinguishing

''The finding of similarity or difference is the key step in the legal process." (114) Indeed the development of the law is induced by just two processes: following cases and distinguishing cases. The common law technique is probably the major factor which ensures the flexibility of the doctrine of binding precedent.

A judge distinguishes an otherwise binding precedent by re-stating the factual part of the precedent. He does this by lowering the level of generality (therefore confining the decision to narrower facts), or by treating additional facts as material in the precedent (therefore wide­ning the difference between the two cases), or by re-interpreting the

(109) Morelle Ltd. v Wakeling [1955] 2 QB 379, 406 per Sir Raymond Evershed MR (110) Davies. v Powell (1737) Willes 46, 51 per Chief Justice Willes. (111) supra, 504 (112) supra (113) Dias (note 93, supra) at p. 197 (114) E. Levi, An Introduction to Legal Reasoning (Chicago 1950) at p. 2

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precedent to say that what the earlier judge appeared to say was the ratio was actually a dictum.

Since words in a judgment are not equated to those in legislation, this method of distinguishing is not obstructed by any definition of ratio decidendi. No judge is expected to deliver his judgment with the preci­sion of a statutory draftsman, so ''it is always open to later courts to introduce exceptions which he did not mention - either because such exceptions did not occur to him, or because he deliberately abstained from stating an exception which, as a matter of fact, he would have stated and acted upon if the facts of the case before him had been different from what they were." (115) The authority of a precedent, if repeatedly distinguished, can be severely impaired without being ex­pressly overruled. "Repeated distinghuishing of a case is evidence that the decision is not approved, and the effect may also be to confine it more and more closely to its own special facts." (116)

English law reports are full of strained distinctions where courts have endeavoured not to follow an undesirable but otherwise binding prece­dent. It has been suggested that when judges distinguish a precedent, it indicates that judges are actually not bound by precedents. But this is misconceived. This belief fails to appreciate that "being bound" by precedents does not mean the elimination of the choice and the need to make a rational decision. On the contrary, to distinguish is actually to admit that judges are bound by precedents, for why else do they need to distinguish ?

Distinguishing is particularly appropriate when a precedent of the House of Lords consists of five judgments which concur as to the result but differ as to reasons and as to materiality of facts. Since "no sanctity attaches to one set of concurring reason as against another, one may be preferred to another, or even used merely to neutralise it, leaving the field clear.'' ( 117)

Even though a judge can always technically distinguish a precedent by pointing out a factual difference, it does not necessarily mean that it is always wise for him to do so. To do so arbitrarily tantamounts to holding oneself up for criticism for having abused the tools of the profession and for having eroded the rational character of the law. In effect, to distinguish is not simply to point out a factual difference : it

(115) Simpson (note 82, supra) 166-167 (116) Dias (note 93, supra) at p. 195 (117) see Stone (note 86, supra)

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necessitates the use of this factual difference to justify a refusal to follow a precedent.

G. Minority opinions

Continental decisions are normally given in the form of a judgment of the court. (118) However, all English judges have the right to deliver a judgment, whether assenting or dissenting. In fact, dissenters often give long and detailed judgments explaining their opinion along with criticism of the reasons of the majority of the court. From time to time, dissenting judgments have been vindicated in subsequent cases where a later court overrules the decision of the majority of the court in the earlier case. But care must be exercised in the treatment of dissenting opinions because an apparently trivial dissent may turn out to be ''an uncontrollable expostulation against a whole line of cases in which the dissenter has hitherto concealed his agreement.'' ( 119)

On the one hand, it is said that dissenting judgments should be deliver­ed infrequently because they may lower public confidence in the judici­ary. Yet, on the other hand, a dissent demonstrates a division in the court and so it ought to be freely aired in systems based on the doctrine of binding precedent. It is submitted that the balance should tip in. favour of judicial individuality as a means to avoid a uniform and rigid Bench. In any case, dissenting judgments often help to clarify the ma­jority decision. However, the truth is that dissenting judgments, after an initial impact, are quickly forgotten in practice. Citation of a dis­senting judgment in court usually tantamounts to an admission that there is no other authority to support one's submissions.

§4. AN APPRAISAL

A. Criticism of the doctrine of binding precedent

It is this doctrine that laymen find most difficult to understand. Per­haps it is too complex and too technical. Perhaps the price paid for uniformity is too high. "Uniformity ceases to be a good when it beco­mes uniformity of oppression. The social interest served by symmetry or certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfares." (120) The law becomes very impersonal and it is said that ''by requiring the judges to

(118) Although this is not, by any means, the rule, e.g., judges of certain Swiss and French courts do deliver minority opinions. (119) Blom-Cooper and Drewry (note 1, supra) at p. 84 (120) B. Cardozo, The Nature of the Judicial Process (New Haven, USA 1920) at p. 113

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follow precedent we live under a government of laws and not of men.'' ( 121) Where impartiality is desired, it may paradoxically enable a judge ''to conceal conscious or unconscious partiality under the screen of precedent." (122)

The Continental lawyer may be rightly excused if he fails to under­stand how it is that the Court of Appeal can hold itself bound by one of its own decisions which is now agreed to be erroneous, followed by advice to the losing litigant to appeal the case to the House of Lords. Too often, words to this effect are heard in the caselaw of the Court of Appeal:

''With reluctance - I might almost say with sorrow - I concur in the view that this appeal must be dismissed. I trust that the case will proceed to the House of Lords." (123)

The most common complaint is that ''the dead hand of the past lies heavily on English law." (124) Another is that the doctrine does no justice, not to the individuals, but to the law: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." (125)

Associated with this is that the doctrine fetters the acquisition of ex­perience. Experience cannot be acquired if one precedent can settle the law. There is no room for judicial experimentation. The English judge is absolutely bound and has been described as "a slave to the past and a despot for the future, bound by the decisions of his dead predeces­sors and binding for generations to come the judgments of those who will succeed him." (126)

English common law's search for a relevant precedent from among the mass of caselaw is hardly conducive to simplicity or certainty in the law. Consequently lawyers are burdened with having to study extreme­ly complex judgments. "It is not unusual to find the report of an English case occupying fifty pages of print, with the most detailed discussion of prior cases, and these cases, which must be laboroiusly

(121) Goodhart (note 2, supra) 56 (122) ibid. (123) Olympia Oil and Gas Co. Ltd. v Produce Brokers' Co. Ltd. (1915) 112 LT 744 per Lord Justice Phillimore (124) Goodhart (note 2, supra) 49 (125) 0. Holmes, Collected Legal Papers (New York 1920) at p. 187 (126) Goodhart (note 2, supra) 61

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traced by counsel, may be four or five hundred years old." (127) Con­tinental lawyers are relieved of this task because unless a precedent is well-known, it usually has little authority. On top of this, the sheer volume of relevant English caselaw greatly increases the chances of overlooking a relevant precedent. This leaves a subsequent court with the possibility of avoiding it by using the per incuriam technique, the excessive use of which, however, leads to uncertainty and unpredicta­bility.

Since the English common law develops through the accidents of litiga­tion, a bad decision of an appellate court may continue to bind lower courts for many years if litigation to appellate courts is infrequent in that field of the law. Hence, overall criticism of the doctrine of binding precedent is that through its unsystematic development of a line of cases, it may, in its attempts to seek logical perfection, have los sight of the reality that ''the purpose of law is to justice between man and man." (128)

B. Values promoted by the doctrine of binding precedent

''One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even arbitrary whim or fitfulness. Therefore in the main there shall be adherence to precedent." (129) It strives to attain impartiality by minimising judicial discretion. It prevents flood­gates of litigation whenever there is a major change on the Bench. Changes on the English Bench can have greater effects than on the Continent because of a much smaller judiciary. (130) Impartiality also serves to avoid the disappointing of reasonable expectations that were formulated earlier by individuals.

Far from being impractical, the doctrine actually entrenches experien­ce. The English have been said to prefer experience rather than logic, and therefore favour the authority of decided cases rather indulge in the exercise of abstract every time a decision needs to be made. But the doctrine is not as rigid or binding as first meets the eye. Strict binding­ness is ''largely mythical since judges have considerable latitude in eva­ding unwelcome authorities." (131)Mechanical following of past deci-

(127) ibid., 51 (128) ibid., 53 (129) Cardozo (note 120, supra) 112 (130) There are 10 judges in the House of Lords, 23 in the Court of Appeal, and 79 in the High Court. (131) Dias (note 93, supra) at p. 195

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sions is not expected : ''All that the doctrine means is that in practice a judge must follow a precedent except where he may reasonably dis­tinguish it." (132)

The doctrine promotes convenience. Having once decided a certain issue of law one way ,it is only proper that the same conclusion is reached when a similar and indistinguishable issue arises. Otherwise, ''the work of the Bench and the Bar would be far more difficult if each question had to be considered de novo.'' (133) Indeed, in terms of efficient functioning of the courts, it is impossible to reexamine every proposition in every case. The scientific development of the law would hardly be promoted if it is permitted to "degenerate into a wilderness of individual and unconnected instances.'' ( 134) The logical develop­ment of the law is most important in the interests of predictabili­ty. (135)

The doctrine minimises the number of errors that individual judges might make, therefore promoting public confidence in the legal system as a whole. Impersonal and reasoned judgments tend to be more readi­ly accepted by the public and serve as a fetter upon the somewhat incongrous position of the judges as unelected de facto law-makers in a democracy.

But whatever other superior qualities may be found in other legal sys­tems, none can compare favourably with the English system in terms of achievement of certainty. The doctrine ''provides some moorings so that men may trade and arrange their affairs with confidence." (136) The public is enabled to plan their affairs in the knowledge that if they continue to comply with the law at that time, they are unlikely to be drawn into litigation. The lawyers are enabled to give advice based upon reasonable deduction, thereby minimising the resort to courts as the final means of dispute settlement. Costs are enabled to be lowered and courts become less heavily burdened with trivial cases. Judges are enabled to apply to the law with a high degree of certainty. The doctri­ne therefore avoids ''the possible embarrassment which might affect

(132) ibid. (133) Goodhart (note 2 supra) 51 (134) ibid., 53 (135) "It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.": Mirehouse v Renne// (1833) 1 Cl. & F. 527, Baron Parke (136) W. Douglas, "Stare Decisis", (1949) 49 Columbia Law Review 735, 736

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High Court and Court of Appeal judges facing what are prima facie conflicting covering decisions from Courts of differing status." (137)

§5. CONCLUSIONS

The continued application of the doctrine of binding precedent hinges upon its adaptability to changing trends and its ability to deliver justi­ce. Certain factors can be identified which go to suggest that the doc­trine will continue to play the most essential role in English law for quite some time to come.

The absence of a comprehensive code naturally fosters the doctrine. But even if English law were to adopt a code, there is no reason to believe that the two are incompatible with one another. Common la­wyers' method of thinking will not be dispelled. Caselaw would be required in order to interpret the code, therefore we fall back on judge­made caselaw. Coupled with the emphasis on caselaw is the continued operation of a fairly efficient system of law reporting. Difficulties abound at present in the existing system but on the whole, the use of indexes and digests go a long way in helping the lawyer in his search for authorities.

If the English hierarchy of courts remains, then the doctrine of binding precedent must remain; the two are inseparable. "When a single deci­sion can settle the law on a particular point, the court in the highest tier must have the last word and, when spoken, that last word must be followed by all lowtier courts, however much. they may believe it to have been mistaken.'' (138) At any one time there ought, in principle, to be a reasonably final way of settling the different views of law between different tiers of courts. Certainly it ''would be bizarre if a judge whose opinion had been rejected by a ... higher tribunal could nevertheless continue to hold to it in his judgments thereafter." (139) The availability of appeal in most cases obviates this need for excessive judicial individuality, which merely increases the cost of litigation.

Binding precedents are the traditional source of the law for English lawyers. "The training of English lawyers is essentially a training in cautiousness and conservatism." (140) Their training places "far more

(137) C. Pickett, "Precedent in the Court of Appeal", [1980] 43 Modern Law Review 136, 140 (138) R. Cross, "The House of Lords and the Rules of Precedent" in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford 1977) at p. 145, 147 (139) MacCormick (note 30, supra) 199 (140) D. Hughes Parry, "Economic Theories in English Case Law", [1931] 42 Law Quarter-

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emphasis upon the development of what may be called a legal ap­proach to the cases than is true in a Continental law school." (141) The object is to apply past judicial experience to present judicial questions, and to ensure the powerful restraining forces of "continuity in tradi­tional modes of professional thought and in traditional rules." (142) The lawyer who has spent many of his years nurturing this quality will find it extremely, if not impossible, to think in any other way.

The reverrence attributed to precedents is partly due to the unique status of the English judge. Unlike many other systems which appoint judges with no experienc at the Bar, the English judiciary appoints its members from the most esteemed and eminent leaders at the Bar. Con­sequently, judges acquire a high level of respect from the legal profes­sion.

Finally, the doctrine of binding precedent must continue to provide justice. It will find itself walking through treacherous territory if, in its benevolent attempts to provide certainty, it actually renders certainty of injustice, because injustice or inconvenience will eventually kill the doctrine. But total certainty and predictability can never be attained, so some level of uncertainty must be accepted as part of the price lest the doctrine is dissolved by its own doing. Justice will be served by ensuring consistency of decisions, equality between litigants, and im­partiality of judges. Far from being too rigid, the doctrine of binding precedent has made the common law "one of the two great systems of jurisprudence existing today in the western world." (143) It has provi­ded for "a consistency of legal thought and action, and a remarkable capacity for adjustment to changing social conditions." (144)

ly Review 183, 186 (141) Goodhart (note 2, supra) 47 (142) R. Pound, The Spirit of the Common Law (Boston 1921) at p. 43 (143) Sir Leslie Scarman, "A Code of English Law?" (Hull University, England 1966); extract reproduced in Zander (note 24, supra) at p. 282 (144) ibid.

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