Balfour v Balfour [1918-19] CA

[Precedent – distinguishing]
A husband promised to pay his wife £30 a month while she remained in England and he worked in Ceylon. Their marriage broke down and the wife brought an action to reclaim money she said her husband owed her.

Atkin J

“The common law does not regulate the form of agreements between spouses.... each house is a domain into which the kings writ does not seek to run ..."

This case distinguished by Lord Denning in Merrit v Merrit [1970] CA

Boys v Chaplin [1968] CA

^[Precedent – additional reason CofA will depart - where the decision was given by a two-man court in interlocutory proceedings]
C injured in a road accident in Malta. C asked to proceed under English law because under Maltese law damages would have been substantially less.

Held: Allowed C’s claim. Departing from the decision in Machado v Fontes [1897] which had been made by a two-man court in interlocutory proceedings - where legal points are rarely fully argued.

The rule in Young v Bristol Aeroplane, does not apply to decisions such as these.

Director General of Fair Trading v The Proprietary Association of Great Britain (2001) CA

[Precedent – courts must follow the ECHR]
The Restrictive Practices Court did not to stop a trial because of the alleged lack of independence of one member of the Court (Dr Rowlatt had applied for a post at an economic consultancy, one of the directors of which gave expert evidence on behalf of the Director General).

Held: Appeal against the decision allowed.  Article 6 of ECHR was applied. 

Ratio in R v Gough (1993) HL (on bias) refined.

Doughty v Turner Manufacturing [1964] CA

[Precedent – additional reasons CofA will depart - where it has been disapproved by the Privy Council]
D the factory owners where C was badly burned when cement was knocked into a bath of molten metal causing a violent and unexpected chemical explosion.

Held: In Re Polemis [1921] the Court of Appeal held that a person who performed a negligent act was liable for all its direct consequences.  However, in The Wagon Mound [1961] the Privy Council had disapproved the rule in Polemis and held that liability existed only where the kind of damage was reasonably foreseeable. The CofA followed the PC ruling and found D not liable for C's injuries,

Harman LJ

“I take it that whether The Wagon Mound is or is not binding on this court we ought to treat it as the law.”

 …that is binding on the CofA.

Fitzsimons v Ford Motor Co [1946] CA

[Precedent – binding nature of CofA]
D employed C who contracted Raynaud's disease because of vibration in the drill he had to use. He claimed for an industrial accident.

Held: Departed from its own earlier decision in Steel v Cammell Laird [1905] - that an accident required a sudden and decisive attack.  Following instead Burrell v Selvage (1921) HL - that a disease arising from employment could under certain circumstances be regarded as an accident.

C won

Froom v Butcher [1976] CA

[Precedent – binding nature of CofA decisions on lower courts]
C was injured in a road traffic accident but was not wearing a seat belt, which at the time was widely recommended but not legally required.  Decisions were never consistent whether it was contributory negligence and if it were, what level of compensation was payable

Held: C’s damages were reduced by 25%. Failure to wear a seat belt is contributory negligence if use of a belt would have avoided or lessened the injuries sustained in the accident.

For the future a deduction of 25% where wearing a seat belt would have prevented the injuries, or 15% where there would still have been some injuries but they would have been less severe.

Gould, R v [1968] CA

^[Precedent – criminal division does not apply stare decisis as rigidly as civil division]
D remarried in the honest, but mistaken belief that his first marriage had been dissolved.

Held:  In R v Taylor [1950] the Court of Appeal held that in 'questions involving the liberty of the subject' if a full court considered that 'the law has either been misapplied or misunderstood' then it must reconsider the earlier decision.

CofA does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction: if on due consideration it is of the opinion that the law had been misapplied or misunderstood in an earlier decision and can depart even though the case could not be brought within any of the exceptions in  Young v Bristol Aeroplane Co (1944)

In principle there is no difference in the application of stare decisis in the civil and criminal divisions, however, in addition to the Young exceptions, because a person's liberty may be at stake, precedent is not followed as rigidly in the criminal division.

R v Wheat [1921] not followed as it conflicted with the authorities which establish that a bona fide claim of right is a defence even if it is founded upon a mistake of law. The judgment in R v Wheat [1921] was mostly obiter and was overruled by Gould [1968].

Not guilty
This case was heard by the newly created CofA

Hamblin v Field (2000) CA

[Precedent – use of reports]
Excessive citation of authorities - particularly in the form of case law summaries (in this instance one from Lawtel) which did not use the language used by the judge and in which it was unclear whether the judgment had been summarised by a professional lawyer - were to be deplored.

These recent cases indicate that it is perhaps time that a thoroughgoing examination of the use of the burgeoning number of law reports and digests of reported and unreported cases was made by the judiciary. Only then will lawyers and information professionals have certainty about what is and what is not to be allowed.

James and Karimi, R v [2006] CA

Whole case, here

^[Precedent - exception - Court of Appeal to follow PC in certain circumstances]

D and D were convicted at separate trials of murder and their cases were referred to the CofA by the CCRC.  Jersey v Holley was relevant to both cases.

Held: Where there is a decision by a nine member Board of the Judicial Committee of the Privy Council the Court of Appeal was bound to prefer the decision of the Privy Council to a decision of the House of Lords.

This was not to be taken as a licence to decline to follow a decision of the House of Lords in any other circumstances.

Both guilty, appeals dismissed

Also here

Jenkins, R v (1983) CA

[Precedent – application of Young in Criminal Division]
D entered a house and inflicted GBH on a person therein. They were convicted of an alternative charge of ABH.

Held: There were previous conflicting decisions and the CofA could choose which one to follow, in this case the one favouring the defendant.

Kadhim v Brent London Borough Council (2001) CA

^[Precedent – exception - principle binding only if previously argued]
C claimed his human rights had been infringed over the payment of Housing Benefit.

Held: A lower court was not bound by a proposition of law which, although part of the ratio decidendi of an earlier decision, had not been the subject of argument before, or consideration by that court. However, this exception to the strict rule of precedent was to be allied only in the most obvious cases.

Merrit v Merrit [1970] CA

[Precedent – distinguishing]
D and C married, but the husband C went to live with another woman.  C agreed to pay D £40 a month and she was to pay off the mortgage. When it was paid off he would transfer the house into her sole ownership. The wife paid off the balance of the mortgage and the husband then reduced the £40 a month to £25 a month. Balfour v Balfour [1919] CA held that a spouse could not sue the other spouse.

Held: Distinguishing Balfour v Balfour [1919] CA and Jones v Padavatton [1969] CA, Lord Denning stated that an intention to create legal relations could found between a husband and wife where they were living in amity and separated or about to separate.

Per curiam. In deciding whether or not an agreement is intended to establish legal relations the surrounding circumstances must be looked at to see whether reasonable people would regard the agreement as intended to be binding

House belonged to D

Morelle v Wakeling [1955] CA

[Precedent – decisions per incuriam (by carelessness or mistake) can be avoided]

Held:
Lord Evershed MR:

”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 or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive…”

Parmenter, R v [1991] CA

[Precedent – binding nature of CofA]
D injured his child by roughly handling him and breaking the bones in his arms and legs. 

Held: there was no proof that D had foreseen the risk of injury, but then had to decide whether a conviction for assault causing actual bodily harm could be substituted. One division of the Court had decided in Spratt [1991] that foresight was essential to a conviction; on the same day, another division had decided in Savage [1991] that D need not himself have foreseen any risk of harm. Faced with two incompatible authorities, the Court had to choose between them, and chose to follow Spratt. (The House of Lords subsequently reversed the decision and said Savage was the case that had been correctly decided.)

Not Guilty of GBH. Guilty of ABH

Rakhit v Carty [1990] CA

[Precedent –CofA departing for per incuriam]
C, landlord sought possession of a flat. The tenant D counterclaimed for the return of overpaid rent.

Held: The earlier decisions Appeal in Kent v Millmead Properties (1982) had been made per incuriam, without reference to statutory provisions in the Rent Act 1977 keeping the registered rent in force until a new "fair rent" was registered.

Tenant won.

Re A (children) [2000]

^[Precedent – example of judicial law making – not regarded as precedent]
"Conjoined twin" Jodie and Mary needed to be separated to save the life of one the twin, but causing the immediate death of Mary.

Held: Lord Justice Ward: this case did not create a precedent for other cases of similar facts.

There could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mary's death would be held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. So far as the law was concerned, the doctrine of double effect did not apply here because Mary's death would not be a side-effect of treatment that was in her best interests overall. In the instant case the life to be taken was that of a person who (although morally blameless) was slowly killing her sister who was entitled to defend herself.

Declaration approved, operation carried out Mary died Jodie is living a normal life at the time of writing.

Also here.

Re Automatic Telephone and Electric Co. Ltd’s Agreement (1965) CA

[Precedent – example of binding nature of Stare Decisis]
One judge dissented in Re Schweppes Ltd’s Agreement (1965) CA but when later the same day the same point was involved in a similar case the judge said he was bound to follow the decision in the first case.

Re Kay's Settlement [1939] Simonds J

[Precedent – High Court judge not bound by brother judge in High Court but will usually follow]
C, trustees of a trust in favour of three children sought directions on their beneficial entitlement in the trust.

Held: Refusing to depart from Re Pryce [1917] which had ruled that the trustees should not enforce a covenant for the benefit of volunteers who had given no consideration.

Simonds J. refused to direct the trustees to put either covenant for the benefit of the settlor's children.

Re Medicaments and Related Classes of Goods (No. 2) [2001] CA

^[Precedent – Court of Appeal not bound by itself in conflict with Strasbourg jurisprudence]
A member of the Restrictive Practices Court had the appearance of bias when it was revealed that she had applied (unsuccessfully) for a job with a company associated with the action before the court.  The case was brought to decide prices charged for medical products (medicaments).  She should have disqualified (recused) herself.
 

Held: The Court of Appeal refused to follow a decision of the House of Lords  in R v Gough (1996) because it was different from decisions of the European Court Human Rights (Strasbourg jurisprudence).
They created a new, objective test; “The question is whether the fair-minded and informed observer, … , would conclude that there was a real possibility that the tribunal was biased."
 

Re S (Adult: refusal of medical treatment) [1992]

[Precedent – recent examples of judicial lawmaking]
D the health authority caring for a seriously ill 30yr old woman who refused a Caesarean section on religious grounds.  C applied for a declaration to allow an emergency Caesarean section which was the only means of saving the patient's life and ensuring the live birth of the baby.

Held: Sir Stephen Brown relied upon Lord Donaldson's caveat in Re T (Adult: Refusal of Treatment) [1992] ‘the only possible qualification is the case in which the choice may lead to the death of a viable foetus', and the American case of Re AC [1990] and granted a declaration that a caesarean section could be lawfully performed on a competent woman without her consent. 

This case has heavily criticised both for its substance and its procedural shortcomings, see here.

Rickards v Rickards [1989] CA

[Precedent – early attempts to depart for other reasons]
An appeal which turned on the Court's discretion to extend time limits.

Held: Departing from an earlier decision refusing jurisdiction in such cases, on the grounds of that it was manifestly wrong.

Lord Donaldson MR said:

“The importance of the rule of stare decisis in relation to the Court of Appeal's own decisions can hardly be overstated.  We now sometimes sit in eight divisions and, in the absence of such a rule, the law would quickly become wholly uncertain.  However, the rule is not without exceptions, albeit very limited.  These exceptions were considered in Young v Bristol Aeroplane Co Ltd [1944] Morelle Ltd v Wakeling [1955] and, more recently, in Williams v Fawcett [1985], where relevant extracts from the two earlier decisions are set out.  These decisions show that this court is justified in refusing to follow one of its own previous decisions not only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error.  In previous cases the judges of this court have always refrained from defining this exceptional category and I have no intention of departing from that approach save to echo the words of Lord Greene MR (in Young's case [1944] Evershed MR (in Morelle's case [1955] and to say that they will be of the rarest occurrence.”

Smith, R v (Morgan) [1998] CA

[Precedent – additional reasons CofA will depart - where it has been disapproved by the Privy Council]
Morgan Smith in 1996 killed a former flatmate, James V, after they became embroiled in a fight over stolen tools.

His defences were that he did not intend to kill or cause grievous bodily harm; that he was suffering from diminished responsibility; and that he was provoked.

The focus of the appeal was on the objective part of the test for provocation and whether the reasonable person could be given certain characteristics of the accused, in this case the characteristic of having a severe depressive illness.

Held: The Court declined to follow the opinion in Luc Thiet Thuan v R [1996] PC - Privy Council opinion are only persuasive - and preferred its own decisions - which it considered binding.

Guilty of manslaughter

This case eventually went to the lords but was effectively overruled by Jersey v Holley [2005] PC.

Southwark London Borough Council v Mills (1999)

[Precedent - retrospective change to the law – judges are said to be clarifying the law]
D local authorities.  C were tenants of Southwark and Camden councils. They both complained of being able to hear all the sounds made by their neighbours because the flats had no sound insulation. It was not a question of the neighbours being unreasonably noisy.

Held; As an ordinary use of residential premises without more was not capable of amounting to a nuisance, and a landlord could not be held liable in tort where he had not authorised the commission of an actionable nuisance, or for authorising his tenant to do something that would not be actionable if he did it himself, the appellants could not invoke the tort of nuisance.

To extend the tort of nuisance would have major implications for all councils spending vast amounts on sound insulation.

Lord Hoffman:

“I think that in a field such as housing law, which is very much a matter for the allocation of resources in accordance with democratically determined priorities, the development of the common law should not get out of step with legislative policy.”

Lord Millett

”These cases raise issues of priority in the allocation of resources. Such issues must be resolved by the democratic process, national and local. The judges are not equipped to resolve them. All that we can do is to say that there is nothing in the relevant tenancy agreements or current legislation, or in the common law, which would enable the tenants to obtain redress through the Courts.”

House of Lords is usually careful not to overstep its constitutional role.

C lost

Spencer, R v (1985) CA

[Precedent – CofA - additional reasons - stare decisis - rule not applicable where liberty of subject concerned - criminal division does not apply stare decisis as rigidly as civil division]
D’s charged with ill treating mental patients in a hospital.  Members of the jury were directed not to discuss case with a discharged juror, three members disregarded the direction. The issue was whether this irregularity affected the trial.

Held: The Criminal Division was bound in the same way as the Civil Division of the Court of Appeal by the doctrine of stare decisis and the same general principles applied before either Division could depart from a previous decision but, since the Criminal Division was dealing with the liberty of the subject, that Division would not follow a previous decision where the interests of justice to an appellant required an earlier authority not to be followed; and that, accordingly, the court would apply those principles in determining the proper direction to be given to the jury.

Guilty

Spratt, R v [1991] CA

[Precedent – significance of obiter]
D caused ABH by shooting a 7-year-old girl twice, with an air pistol. He was firing from the window of his flat, aiming at a target in the yard below.
V was playing in the yard D had not known she was there.

Held: They did not follow Lord Roskill's dictum in Seymour, saying that the recklessness required for offences under the Offences Against the Person Act as defined in R v Cunningham and as envisaged in R v Venna was clearly subjective recklessness (that is, that D foresaw the risk but went ahead regardless), because the judgment in R v Venna speaks of recklessness and intention as being often almost indistinguishable.

Not Guilty

Taylor, R v [1950] CA

^[Precedent – CofA - additional reasons - stare decisis - rule not applicable where liberty of subject concerned - criminal division does not apply stare decisis as rigidly as civil division]
D went through 4 bigamous ceremonies whilst married to his lawful wife Alice, whom he had not seen for more than twenty years.

Held: By a full court of seven. Overruling R v Treanor (or McAvoy) [1939].  Lord Goddard said that the defence in the 1861 Act was restricted by Treanor to not hearing from a spouse for seven years only to the first bigamous ceremony and not to subsequent ones.

He stated that the CofA would normally consider itself bound by earlier decisions (without mentioning Young v Bristol Aeroplane Co (1944)).

”…but this court has to deal with the liberty of the subject and if, on re-consideration, in the opinion of a full court the law has been either misapplied or misunderstood and a man has been sentenced for an offence, it will be the duty of the court to consider whether he has been properly convicted.”

This rule was followed in R v Gould [1968] and R v Newsome [1970].
 
Not guilty 

Comment:

1925 Married Alice
1927 ‘Married’ a second woman
1942 ‘Married’ a third woman
1944 Acquitted of 1942 event because 1927 not a lawful marriage
1945 Acquitted of 1927 no evidence Alice alive, not seen more than 7 years
1946 ‘Married’ Lilian
1948 ‘Married’ Olive
1950 Pleaded guilty to bigamy in 1946 and 1948.   He thought he could not use the defence that Alice he had not heard of her for over 20 years, because R v Treanor said the defence only applied to a single subsequent marriage, viz 1927 or 1942.
 

Williams v Fawcett (1985) CA

[Precedent – exceptions to Young – previous decision per incuriam – liberty of the subject]
C was committal to prison for breach of a non-molestation court order.  The paperwork failed to specify the breaches or to grant an adjournment.

Held: Sir John Donaldson MR:

These were material irregularities for which the order would be quashed. Previous decisions were per incuriam the error had been compounded by a line of cases, and this was an exceptional case.

Young v Bristol Aeroplane Co Ltd [1944] CA

Whole case here

[Precedent – CofA – initial rules of binding nature of decisions of the Civil Division]
This case involved compensation for a workman, under the Workmen's Compensation Acts

Held: that the Court of Appeal was bound by its own previous decisions the only exceptions to this rule are: -

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 to follow 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, e.g., where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier court.  

Decisions of the Court of Appeal itself are binding on courts below, namely the High Court and the county courts.