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Mechanics of precedent - The Denning Story

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The Denning story

The attack was on two fronts

Lord Denning MR carried on a one-man campaign to secure a change of practice in the Court of Appeal of Appeal.



He asserted that the House of Lords decisions no longer bound the Court of Appeal.



He claimed that the Court of Appeal was no longer bound to follow its own decisions as a general rule and not just in the exceptional circumstances laid down in Young v Bristol Aeroplane Co. Ltd [1944].


Lord Denning understood (or misunderstood) the last words of the Practice Statement to mean:

"We are only considering the doctrine of precedent in the Lords. We are not considering its use elsewhere."

Conway v Rimmer [1967] CA

Lord Denning said,

"[M]y brethren today feel that we are still bound by the observations of the House of Lords in Duncan v Cammell, Laird & Co. Ltd.... I do not agree. The recent statement of Lord Gardiner LC has transformed the doctrine of precedent. This is the very case in which to throw off the fetters."

When Conway v Rimmer reached the House of Lords [1968] they reconsidered Duncan's case and overruled it, but it was made clear that Duncan's case had been binding on the Court of Appeal all along.


Broome v Cassell & co. Ltd [1971] CA

C of A refused to follow the decision of the House of Lords in Rookes v Barnard [1964], on the principles for the award of exemplary damages in tort. They based the refusal on the ground that Rookes v Barnard was wrong and decided per incuriam, in ignorance of two previous decisions of the House. When Broome v Cassell & co. Ltd reached the House of Lords, the Law Lords castigated the Court of Appeal for its disloyalty.

Lord Hailsham said

"[I]t 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, if it were open to the Court of Appeal to do so, it would be highly undesirable ....

The fact is, 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."

Denning repentant?

Denning, in one of his books, expressed regret for the approach he adopted in Broome v Cassell & co. Ltd because the court ordered Commander Broome to pay part of the costs of the hearing in the Court of Appeal.


Denning follows up his attack

Schorsch Meier GmbH v Hennin [1975]

He held he could award damages for breach of contract in a foreign currency that was the currency of the contract.  this was not the precedent of the lords in Re United Railways of the Havana & Regla Warehouses Ltd [1961] that laid down that damages could be awarded only in sterling.
The Schorsch Meier case did not go to the Lords

Miliangos v George Frank (Textiles) Ltd [1976] HL

Overruled United Railways and again put Denning in his place on stare decisis.

Lord Cross

"In the Schorsch Meier case, Lord Denning MR . . . took it on himself to say that the decision in the Havana case that our courts cannot give judgment for payment of a sum of foreign currency—though right in 1961—ought not to be followed in 1974 because the 'reasons for the rule have now ceased to exist'.... [T]he Master of the Rolls was not entitled to take such a course. 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."

The second front of Lord Denning's attack

Was to assert that the Court of Appeal was no longer bound rigidly to follow its own previous decisions.

Gallie v Lee [1969]

"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 we who imposed it can also remove it. The House of Lords have done it. So why should not we do likewise?"

Not all his brother judges agreed with him.


Tiverton Estates Ltd v Wearwell Ltd [1975]

Denning repeated the view he had expressed in Gallie v Lee, but added

"I have not been able, however, yet to persuade my brethren—or, at any rate, not all of them—to agree with this view."

Scarman LJ

"The Court of Appeal occupies a central, but . . . an intermediate position in our legal system. To a large extent, the consistency and certainty of the law depend upon it. It sits almost always in divisions of three: more judges can sit to hear a case, but their decision enjoys no greater authority than a court composed of three. If, therefore, throwing aside the restraints of Young v Bristol Aeroplane co. Ltd. one division of the court should refuse to follow 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. The appropriate forum for the correction of the Court of Appeal's errors is the House of Lords, where the decision will at least have the merit of being final and binding—subject only to the House's power to review its own decisions. The House of Lords, as the court of last resort, needs this power of review: it does not follow that an intermediate appellate court needs it."

Had Denning learnt his lesson?

He capitulated and accepted the orthodox view in Miliangos v George Frank (Textiles) Ltd [1975]

"I have myself often said that this court is not absolutely bound by its own decisions and may depart from them just as the House of Lords from theirs; but my colleagues have not gone so far. So that I am in duty bound to defer to their view."

Davis v Johnson [1979]

On domestic violence and Matrimonial Proceedings Act 1976. The parties, not married to each other, lived together with their baby daughter in a council flat of which the parties were joint tenants. There was violence by the man. The woman fled with the child to a battered wives' refuge. She applied to the court to reinstall her and have the man excluded from the flat. The Court of Appeal had considered the same question on two occasions only a few months earlier in B v B [1978] and Cantliff v Jenkins [1978]. They held that the 1976 Act did not protect a female cohabitee where the parties were joint tenants or joint owners but only where she was the sole tenant or sole owner of the property.

In Davis v Johnson, Denning called together a 'full' court of five judges, describing it as 'a court of all the talents'. The court held by a majority of three that the 1976 Act does protect a female cohabitee even where she is not a tenant at all or only a joint tenant. They declared B v B and Cantliff v Jenkins wrong did not follow them. They granted an injunction to order the man out and reinstall the woman.

On the question of stare decisis in the Court of Appeal Denning had this to say;

"On principle, it seems to me that, while 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. What is the argument to the contrary? 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 forever."

Later in his judgment, Denning was more specific:

"To my mind, this court should apply similar 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....

Alternatively, in my opinion, we should extend the exceptions in Young v Bristol Aeroplane co. Ltd when it appears to be a proper case to do so."

Sir George Baker was even more inventive and precise

He said that Young's case was binding on the Court of Appeal but he would like to see a further limited exception to it:

"I would attempt to define the exception thus: 'The court is not bound to follow a previous decision of its own if satisfied that that decision was clearly wrong and cannot stand in the face of the will and intention of Parliament expressed in simple language in a recent statute passed to remedy a serious mischief or abuse, and further adherence to the previous decision must lead to injustice in the particular case and unduly restrict proper development of the law with injustice to others."

On a further appeal, the decision of the majority in the Court of Appeal was upheld and the House of Lords overruled B v B and Cantliff v Jenkins

However, their Lordships rejected most of what the Court of Appeal had said about stare decisis.

Lord Diplock, said:

"[T]he rule as it had been laid down in the Bristol Aeroplane case had never been questioned thereafter until, following upon the announcement by Lord Gardiner LC in 1966 that the House of Lords would feel free in exceptional cases to depart from a previous decision of its own, Lord Denning MR conducted what may be described, l hope without offence, as a one-man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare decisis imposed upon its liberty of decision.

In my opinion, this House should take this occasion to reaffirm expressly, unequivocally and unanimously that the rule laid down in the Bristol Aeroplane case as to stare decisis is still binding on the Court of Appeal."

Denning has described this decision as his 'most humiliating defeat' and a 'crushing rebuff'

But after Davis v Johnson it is beyond doubt that the true position concerning stare decisis in the Court of Appeal is that,

First, the Court of Appeal is bound by decisions of the House of Lords even if they are wrong, and,

Secondly, the Court of Appeal is bound by its own decisions subject only to the exceptions laid down in Young v Bristol Aeroplane co. Ltd [1944].

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