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Cases - judicial precedent House of Lords and Privy Council

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[Home][Index - Cases][ Cases sources of law][Cases - judicial precedent House of Lords and Privy Council]

 

Adomako, R v (1994) HL

Airedale NHS Trust v Bland [1993] HL

Anderton v Ryan [1985] HL

British Railways v Herrington [1972] HL

C (a minor) v DPP [1995] HL

Caparo v Dickman [1990] HL

Cassell v Broome [1971] HL

Central Asbestos v Dodd (and Smith) (1973) HL

Clegg, R v [1995] HL

Conway v Rimmer [1968] HL

Davis v Johnson [1978] HL

Donoghue v Stevenson [1932] HL

Fitzleet Estates v. Cherry [1977] HL

Hall v Simons (2000) HL

Howe, R v [1987] HL

Hunter and others v Canary Wharf Ltd; Hunter and others v London Docklands Development Corp [1997] HL

James and Karimi, R v [2006] CA

James v Eastleigh Borough Council [1990] HL

Jobling v Associated Dairies Ltd. [1981] HL

Jones v Secretary of State for Social Services [1972] HL

Khawaja v Secretary of State for the Home Department [1984] HL

Kleinwort Benson Ltd v Lincoln City Council (1998) HL

Knuller v DPP [1973] HL

London Tramways Co v London County Council [1898] HL

McLaughlin v O'Brian [1982] HL

Miliangos v George Frank Ltd [1975] HL

Mills v HM Advocate and another (2002) PC

Murphy v Brentwood DC [1990] HL

Newsome, R v [1970] HL

Oldendorff v Tradax Export [1974] HL

(The Johanna Oldendorff, E L Oldendorff & Co GmbH v Tradax Export SA [1974] HL)

Pepper (Inspector of Taxes) v Hart [1993] HL

Practice Statement (Judicial Precedent) [1966] HL

R v Governor Brockhill Prison ex p Evans (2000) HL

R v R (rape - marital exemption) [1991] HL

Roberts Petroleum Ltd v Kenny Ltd. [1983] HL

Rogers v Essex CC [1985] DC, HL

Rookes v Barnard [1964] HL

Seymour, R v [1983] HL

Shaw v DPP [1961] HL

Shivpuri, R v [1986] HL

Smith, R v (Morgan) [1998] CA

Southwark London Borough Council v Mills (1999) HL

Vestey v Commissioners of Inland Revenue [1979] HL

White v Jones [1995] HL

 

A v Hoare [2008] HL

Red triangle indicating important information

 

 

 

Whole case here

 

^[Precedent use of Practice Statement]
D, known as the Lotto rapist (convicted of several sexual assaults, including rape) attempted to rape V in 1989. He was given a life sentence. At that time, he was not worth suing for damages. In 2004, on day release from prison he bought a lottery ticket and won £7 million. So in 2005, V sued for personal injury, but the claim was rejected by the High Court because her claim had been brought after the six-year limit imposed by the Limitation Act 1980.

Held: A compensation claim against D could go to the High Court for hearing.

The Limitation Act 1980 requires a claimant to bring an action against her assailant for injury within 6 years.

However, Parliament could not have intended to exclude those who had been intentionally injured. Otherwise anomalies would arise such as S v W (child abuse: damages) [1995], in which it was held that a claimant suing out of time was able to pursue a claim against her mother for failing to protect her against sexual abuse by her father, but not a claim against the father himself.

The lower courts considered themselves bound by Stubbings v Webb [1993] HL in which it was held that the flexibility provided for elsewhere in the Act did not apply to a case of deliberate assault, including acts of indecent assault.

The claimant contended that Stubbings v Webb had been wrongly decided and that the House should depart from it. She relied, inter alia, on the Law Commission's report (Law Com No 270) which recommended a uniform regime for personal injuries, whether the claim was made in negligence or trespass to the person.

Courts had a discretion under s 33 of the Act to extend the time in the claimants' favour.
Time ran from when the claimant knew of the injury, which was both a subjective and objective test not whether the claimant considered it serious enough to justify proceedings but whether she would 'reasonably' have done so. Once it had been ascertained what the claimant knew and what she should be treated as having known, the actual claimant dropped out of the picture.

Stubbings v Webb [1993] HL overruled; Letang v Cooper [1964] approved.
KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] All ER (D) 101 (Jun) disapproved.

Claimant won

Also here

Addie v Dumbreck [1929] HL

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Whole case

 

[Precedent - overruling by HoL -  ratio refined -  first use of Practice Statement 1966 – negligence duty to trespasser]

D the owner of a colliery where C’s 4 year-old son had been killed when he was playing on the wheel pit at a Colliery. The accident happened in a field about a hundred yards from a public road. "Trespassers will be prosecuted" notices were habitually ignored by adults and children.

Held: Lord Hailsham LC:

“Towards the trespasser the occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger.”

C Lost
Overruled, or refined by
British Railways v Herrington [1972] HL

Adomako, R v (1994) HL

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[Precedent – overruling by HoL]
Rare use in criminal cases on the law of gross negligence manslaughter.  Overruled R v Seymour (1983)

Airedale NHS Trust v Bland [1993] HL

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[Precedent - example of judicial law making]
Tony Bland seriously injured in the Hillsborough disaster, was being kept alive only by extensive medical care (not a life-support machine). He had survived for three years in persistent vegetative state (PVS). He continued to breathe normally, but was kept alive only by being fed through tubes. He had no chance of recovery; his doctors (with the support of his family) sought a declaration from the court that it would be lawful for them to discontinue treatment so that he might die peacefully.

 
Held
:
Treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs.
 

Lord Browne-Wilkinson;

“The judges' function in this area of the law should be to apply the principles which society, through the democratic process, adopts, not to impose their standards on society. If Parliament fails to act, then  judge-made law will of necessity through a gradual and uncertain  process provide a legal answer to each new question as it arises. But in my judgment that is not the best way to proceed. The function of the court in these circumstances is to determine this  particular case in accordance with the existing law, and not seek to  develop new law laying down a new regimen …  it is for Parliament to address the wider problems which the case  raises and lay down principles of law generally applicable to the  withdrawal of life support systems.”  

Lord Browne-Wilkinson and Lord Mustill;

”It is imperative that the  moral, social and legal issues of the present case should be considered by Parliament”

In this case feeding him was treatment and that treatment would not cure him and therefore was not in his best interests.

It was lawful for D's doctors to stop feeding him artificially.

See also Frenchay Healthcare NHS Trust v S [1994] CA. Similar issues can arise in respect of the very elderly or in respect of babies born with very severe mental or physical handicaps, especially where major (and possibly repeated) surgery would be needed to keep them alive see Re J [1991].

 

It was lawful for D's doctors to stop feeding him artificially.  The court had no option but to make a decision one way or the other.

Also here

Anderton v Ryan [1985] HL

^[Precedent - overruling – law incorrectly applied]
The previous court did not correctly apply the law.  So this case overruled by R v Shivpuri [1986] concerning the Criminal Attempts Act 1981

British Railways v Herrington [1972] HL

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Whole case here

 

^[Precedent – HoL  - examples of departing]
First major use of Practice Statement.
C a 6 year-old boy, was burned on an electric rail.  The railway was separated from a play area by a fence that was broken. The stationmaster knew the fence was in poor condition, and knew children often trespassed, but took no steps to correct this.


Held
: Applying Lord Atkin’s “neighbour” principle; the occupier might not owe to the trespasser a common duty of care, but did have a duty to treat him with ordinary humanity.

 

Overruled/Departed: Addie v Dumbreck [1929] which held that an occupier of premises had no duty of care to a trespasser and it was the responsibility of the parents to protect their children.

"Departed" rather than "overruled" because the House would have decided Herrington the way it did regardless of the 1966 Practice Statement, they would have distinguished the previous case.

In Addie, an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly.

 

In Herrington, they propounded the test of 'common humanity’, which involves an investigation of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.

Parliament had passed the Occupier’s Liability Act 1957. The lords were unanimous in deciding that there could be liability to a trespasser. Unfortunately five judges reached that decision in different ways and the matter was referred to the Law Commission, and eventually the passing of the Occupier’s Liability Act 1984 that now governs the position of trespassers and certain other non-visitors.

 

C won

C (a minor) v DPP [1995] HL

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[Precedent – binding nature of Divisional Court - Judicial creativity – judicial cowardice]
A 12-year-old boy A was charged with interfering with a motor cycle.

 

Held: The presumption of 10-14 doli incapax (mischievous discretion) was ultimately abolished by the Crime and Disorder Act 1998.

Mann LJ said it was clear on authority that the Divisional Court had power to depart from its own previous decisions. The House of Lords did not expressly consider whether or not the Divisional Court was bound by its own decisions in appellate cases.

Lord Lowry gave the following guidelines for judicial law-making:

  1. judges should beware of imposing a remedy where the solution to a problem is doubtful;

  2. they should be cautious about making changes if Parliament has rejected opportunities of dealing with a known problem or has legislated while leaving the problem untouched;

  3. they are more suited to dealing with purely legal problems than disputed matters of social policy;
    fundamental legal doctrines should not lightly be set aside; and

  4. judges should not change the law unless they can achieve finality and certainty.

Caparo v Dickman [1990] HL

^[Precedent – persuasive precedent]
D auditors of company accounts.  C, Caparo bought shares and then discovered that the accounts did not show the company had been making a loss. C alleged that in negligence a duty was owed to Caparo.

Held:
Approving a dictum of Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985), that the law should preferably develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable "considerations which ought to negative or limit the scope of the duty or the class of person to whom it is owed".

N
o duty was owed in those two situations.

Steps to establish duty of care are;

a) Is there an existing case, which would hold there to be a duty of care?  If not then ask three questions.

1. Was loss to the claimant foreseeable?

2. Was there sufficient proximity between the parties?

3. Is it fair, just and reasonable to impose a duty of care?

Auditors won

Cassell v Broome [1971] HL

[Precedent – obligation to follow – status of per incuriam]
C appealed against the way exemplary damages had been assessed in a libel case.  The case concerned a book about a naval disaster.

The Court of Appeal believed that a decision of House of Lords in Rookes v Barnard [1964], had been made per incuriam and so they disregarded it.

Held: Lord Hailsham

“Decisions of the House of Lords are binding on the Court of Appeal and it is not open to that court to advise judges to ignore decisions of the House on the ground that they were decided per incuriam or are unworkable Furthermore (per Lord Hailsham of St Marylebone LC and Lord Diplock) although it is open to an appellate court to decline to follow one of its own previous decisions on the ground that it was decided per incuriam, the Court of Appeal is not entitled to disregard a decision of the House of Lords, nor is a judge of the High Court entitled to disregard a decision of the Court of Appeal, on that ground.”

Central Asbestos v Dodd (and Smith) (1973) HL

^[Precedent – finding the ratio]
C was informed by his works manager that he could not bring an action for damages against his employer for his contraction of asbestosis.

Held: It was reasonable for the claimant to accept the wrong advice of the works manager even though it was obvious that the works manager had no real competence to give the advice.

There was a division of opinion amongst the law Lords.  A majority allowed the claimant an extension of the limitation period but a different majority rejected the claimant’s reasoning. This not only perpetuated what was, apparently, a judicial misinterpretation of parliamentary meaning but must also have at least contributed to the prompt intervention of Parliament by the Limitation Act 1975; it is impossible to compute the cost to the public.

Lord Reid: of the 1963 Act said it had, 

“A strong claim to the distinction of being the worst drafted Act on the statute book.”

Clegg, R v [1995] HL

Red triangle indicating important information

[Precedent – guidelines on judicial law making]
D fired several shots at a car whilst he was on check point duty in Northern Ireland. The car was approaching the checkpoint at speed and did not appear to be going to stop. One of the passengers was killed. Clegg was charged and convicted of murder.

It was argued that the House should make new law by creating a new qualified defence - available to a soldier or police officer acting in the course of his duty - of using excessive force in self-defence, or to prevent crime, or to effect a lawful arrest.  By doing so it would reduce murder in such cases to manslaughter.


Held
: Lord Lloyd, whilst not averse to judicial law-making - citing R v R (1991) as a good example of it – said that he had no doubt that they should abstain from law-making in the instant case since the reduction of murder to manslaughter was essentially a matter for Parliament, and not the courts.

Conway v Rimmer [1968] HL

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[Precedent – HoL  - examples of departing]

First example of HoL using Practice Statement. An ex-police officer sued for wrongful prosecution and sought disclosure of some police files.  The Home Secretary claimed public interest immunity for all such files.

 

Held: The Home Secretary's certificate was not conclusive, and it was up to the court to examine the documents and order disclosure if the public interest in the administration of justice outweighed the public interest in confidentiality. The decision in Duncan v Cammell Laird [1942] should not be followed.

 

The House of Lords simply distinguished the Conway case from the Duncan case on the facts, rather than explicitly overruling it.

Lord Morris was willing to "depart" from Duncan on two grounds:

1. It was based on a misapprehension of the law enforced at the time.

2. Lower courts obliged to follow the Duncan decision have expressed regrets in having to do so.

Lord Pierce on a third:

3. There has been a great change in circumstances since 1942. There is a greater proliferation of administrative tribunals, giving the Crown greater scope to invoke privilege against the interest of litigants.

Davis v Johnson [1978] HL

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[Precedent – early attempts to depart for other reasons]
C was excluded from his home, by a
County Court order, after seriously assaulting his partner several times. C’s occupation was as a joint tenant, which means the same rights to occupy as his partner.

 

Held: The House of Lords dismissed C's appeal, from the decision of the CoA.  Reaffirming the rule in Young. The position of the Court of Appeal as an intermediate appellate court, with increasing membership and a number of divisions and the consequent need for legal certainty, the rule that (subject to clearly defined exceptions) the Court of Appeal is bound should be reaffirmed unequivocally.

The CofA consisting of a full Court of five judges including the Master of the Rolls and the President overruled a previous Court of Appeal decision which would have allowed him to stay.

Lord Denning MR attempted modified constraints of Young to allow the Court to depart from an earlier decision if convinced that it is wrong. By saying that the Court of Appeal is bound by its own previous decisions is a rule of practice, not of law.  The House of Lords did not accept this.


Appeal dismissed.
Since this case there has been no further challenge to the principles of Young v Bristol Aeroplane.

Donoghue v Stevenson [1932] HL

 

 

Red triangle indicating important information

Whole case here

[Precedent – ratio and obiter]
It was material that the claimant had been injured because D had manufactured the ginger beer and bottled it in opaque glass and it contained a dead snail.

It was not material who had bought the ginger beer.  Or who poured it into the tumbler.

 

It was not material that there was no contractual relationship between C and D.

Lord Atkin made it clear that the ratio was not to be limited to cases involving snails in ginger-beer bottles.

[A] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.”

However, courts have extended the ratio of Donoghue v Stevenson to include allsorts of items purchased by consumers. As they have extended category of persons who are potentially liable.

Fitzleet Estates v Cherry [1977] HL

[Precedent -  reasons for departing]
T
he House was asked to overrule an earlier case (1966) narrowly decided on a point of interpretation of the Income Tax Act. The House in Cherry said very plainly that you must argue something more than simply the wrongness of the earlier decision. Even if the House agrees that it was wrongly decided, once decided they will stick to it unless you can argue something more, like material change in circumstances. The Cherry case reiterates the reasoning in Jones and Knuller. Lord Wilberforce stated in Cherry:

“My Lords, two points are clear:  Although Mr. Bates Q.C.  for the appellant company developed his argument with freshness and vigour, it became clear that there was no contention advanced or which could be advanced by him which was not before this House in 1965.  [which] … for reasons then thought good, [was] by the majority rejected.  The desperate argument of "per incuriam" is certainly not available here. 

There has been no change of circumstance such as some of their Lordships found to exist in the case of
Miliangos v George Frank (Textiles) Ltd  [1976]  such as would call for or justify a review of the 1965 decision.  The fact, if it be so, that the 1965 decision works hardly upon property companies is not such a change of circumstance. “

“My Lords, in my firm opinion, the Practice Statement of 1966 was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this. House in the hope that a differently constituted committee might be persuaded to take the view, which its predecessors rejected. “

Hall v Simons (2000) HL

Red triangle indicating important information

[Precedent – HoL  - examples of departing - significance of obiter]
This case was part of three conjoined appeals heard at the same time because they involved the same point of law, namely immunity from suit by solicitors and barristers.

The case involved negligent advice.

 

Held: It is arguable that most of this judgment is obiter, since none of the solicitors in the instant cases were acting as advocates as such at the time of the acts or omissions complained of. But this is a purely technical point: the removal of immunity (even by a bare 4-3 majority in relation to criminal cases) is a clear decision of a strong House and will almost certainly be applied in all future cases. By a 7 man court Rondel v Worsley had not been wrongly decided in its time, but the world was different then. The courts now can strike out claims which have no real chance of success.

This is also the case where an action appears to be an abuse of the legal process.  This includes those which attempt to re litigate the first case.

Lawyers not the only professionals who have to balance their duty to an individual client and a code of ethics.

It is essential to the proper administration of justice that barristers should be prepared to defend even the most unsavoury characters, who might well wish their lawyers to use all possible means, ethical or not, to secure their acquittal.  These characters may wish to sue if they are acquitted on appeal.

Rondel v Worsley [1967] and Saif Ali v Sydney Mitchell & Co. [1980] overruled.
Lord Hoffman:

I do not say that Rondel v Worsley [1969]…was wrongly decided at the time. The world was different then. But, as Lord Reid said then, public policy is not immutable..”

Immunity from suit removed

Howe, R v [1987] HL

Red triangle indicating important information

[Precedent – HoL  - examples of departing – significance of obiter]
D took part with others in two separate murders, and on a third occasion the intended victim escaped. D's claim to have acted under duress was left to the jury on two of the three counts, but D was convicted on all three.

 

Held: Using the Practice Statement, departed from its decision in Lynch v DPP for Northern Ireland [1975] to say that no participant (whether principal or accessory) can claim duress in defence to a murder charge.

In Lynch, the House of Lords had held that duress was available as a defence to a person who had participated in a murder as an aider and abettor.  Not to do so would produce the illogical result that, whilst duress is a complete defence to all crimes less serious than murder, it is not even a partial defence to a charge of murder itself.

In R v Gotts [1992] obiter in Howe was extended by holding that duress is not a defence to attempted murder.

Lord Griffiths said:

“We face a rising tide of violence and terrorism against which the law must stand firm recognising that its highest duty is to protect the freedom and lives of those that live under it. The sanctity of human life lies at the root of this ideal and I would do nothing to undermine it, be it ever so slight.”

The prime factor in favour of overruling was that the cases were simply wrong as a matter of morality. The earlier cases had carved out a duress defence for certain secondary parties and now the Lords basically disagreed as a matter of morality with what had been done. Howe was decided in the context of increased experience with and fear of IRA terrorism and that cannot be overlooked. A secondary reason for the overruling is connected with the Shivpuri factor that the exceptions carved out in the earlier cases lead to uncertainty in their application.

Hunter and others v Canary Wharf Ltd; Hunter and others v London Docklands Development Corp [1997] HL

[Precedent – example of creating precedent by use of similar principle]
D erected a tall building which interfered with Cs’ television reception.  This was thought to be the Tort of Nuisance.  The building had been granted special planning permission in designated enterprise zone. The court was asked to decide whether occupation of property was a sufficient link that entitled an occupier to sue in private nuisance. 

 

Held: only a person with an interest in the land could sue; and there was no good reason to depart from the law as so established, an owner was entitled to build on his land as he wished, subject to planning control.

 

D won

James and Karimi, R v [2006] CA

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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

James v Eastleigh Borough Council [1990] HL

 

 

[Precedent – binding nature]
D local council ran swimming baths.  C, Mr James had to pay 60p for a swim while his wife went in for free because she had reached the pensionable age of 60. Mr James, supported by the Equal Opportunities Commission, brought a claim of direct sex discrimination.

Held
: Lord Bridge:

“The phrase 'pensionable age' … means: .. a man, the age of 65 and … a woman, the age of 60.' … the practice of denying to men between the ages of 60 and 65 benefits which are offered to women between those ages is unlawful unless it is authorised by other express statutory provisions.”

C won

Jobling v Associated Dairies Ltd. [1981] HL

^[Precedent – HoL - doubted and did not follow its own earlier decision]
D the employer of a workman who suffered a slipped disc through their negligence.  His earning capacity was reduced by half. Four years later, he was found to have a pre-existing spinal disease unrelated to his accident.  When the case came to trial, he was totally incapable of work.
 
Held: Doubting and not following their own earlier decision in
Baker v
Willoughby [1970]. The employer was liable for only four years' loss of earnings, this being a rare case in which the "eggshell skull" rule operated to the benefit of the defendant.  The onset of this illness was "one of the vicissitudes of life relevant to the assessment of damages".

Jones v Secretary of State for Social Services [1972] HL

^[Precedent – HoL  - Power to overrule previous decisions to be used sparingly - decisions on construction of statute not normally to be reconsidered]
Before a 7 man house. Conjoined appeals by two fitters who injured themselves lifting heavy equipment. Both then suffered heart problems.  They were refused disablement benefit by a Commissioner on the grounds that the heart disease was not connected to the accident.  Benefit was regulated by s.7(1) of the National Insurance (Industrial Injuries) Act 1946. C argued that Re Dowling [1967] on the same matter was wrong and should be overruled.

Held: Quashing the Commissioners' decision but declining to overrule the decision in Dowling, even though four members of the House thought it was wrong.

Lord Reid:

 “The old view was that any departure from rigid adherence to precedent would weaken that certainty. I did not and do not accept that view. It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in so doing; they are adopting the less bad of the only alternatives open to them.”

 

 “…the Practice Statement … which should be applied sparingly and should only rarely be invoked in cases of the construction of statutes or other documents.”

Khawaja v Secretary of State for the Home Department [1984] HL

^[Precedent - the liberty of a person]
C, and another, appealed against judicial review of an immigration officer's order.

 

Held: Overruling a line of cases, including its own decision in Zamir (l980), adding "loss of liberty", as a ground for departing or overruling.

Lord Scarman:

“My Lords, in most cases I would defer to a recent decision of your Lordships' House on a question of construction, even if I thought it wrong. I do not do so in this context because for reasons which I shall develop I am convinced that the Zamir reasoning gave insufficient weight to the important (I would say fundamental) consideration that we are here concerned with, the scope of judicial review of a power which inevitably infringes the liberty of those subjected to it.”

The citizen needs protection from decisions of civil servants. The law cannot extend to interference with liberty unless Parliament had unequivocally enacted that it should.

Lord Scarman:

The House will depart … when…adherence to the precedent would involve the risk of injustice and obstruct the proper development of the law, but also that a judicial departure by the House from the precedent is the safe and appropriate way of remedying the injustice and developing the law.”

Kleinwort Benson Ltd v Lincoln City Council (1998) HL

Red triangle indicating important information

[Precedent - retrospective change to the law – judges ‘clarify’ the law]
Kleinwort Benson entered into swap arrangements with local authorities keen to maximize their investments.  A swap arrangement is a form of gamble, or hedge against interest rate changes. Both parties made a mistake about the law of contract.

 

Held: Judge-made decisions have retrospective effect, in relation not only to the parties to the litigation but also to anyone else the facts of whose case arose before the new decision.  

Lord Goff:

“Occasionally, a judicial development of the law will be of a more radical nature, constituting a departure, even a major departure, from what has previously been considered to be established principle, and leading to a realignment of subsidiary principles within that branch of the law. . . It is into this category that the present case falls; but it must nevertheless be seen as a development of the law, and treated as such.

”… when the judges state what the law is, their decisions do, in the sense I have described, have a retrospective effect.
I must confess that I cannot imagine how a common law system, or indeed any legal system, can operate otherwise if the law is be applied equally to all and yet be capable of organic change.”

Knuller v DPP [1973] HL

Red triangle indicating important information

[Precedent – HoL - examples of refusing to depart or overrule]
D published a gay contact magazine thereby conspiring to corrupt public morals.

Held:
In Shaw (1962) the House of Lords held that the common law crime of "conspiracy to corrupt public morals” existed despite many commentators believing that it did not exist; effectively the HoL created it.

Lord Reid had dissented in Shaw, and still believed it to be wrong, but it did not follow that it should now be reconsidered.

Lord Reid stated:

“I dissented in Shaw's case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act.”

 Guilty

London Tramways Co v London County Council [1898] HL

 

^[Precedent – binding nature of HoL prior to 1966 - certainty of the law more important than individual hardship]
This case concerned the price the LCC should pay for parts of the tramways.

Held:

Lord Halsbury, L.C., stated:  

“… I am prepared to say that I adhere in terms to what has been said [by other Law Lords] that a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it [had never been decided] and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided.”

McLaughlin v O'Brian [1982] HL

[Precedent – principle –v- policy]
C visited her family in hospital an hour after a road traffic accident. She suffered psychiatric illness from the shock of seeing one daughter dead and her husband and two other children seriously injured.

 

Held: Principle not policy keeps the common law flexible and consistent.

Miliangos v George Frank Ltd [1975] HL

[Precedent – overruling – law incorrectly applied, or rule of law no longer desirable]
The rule in Re United Railways [1961] HL that required damages to be awarded in sterling was no longer desirable and was overruled. Thereby allowing damages to be awarded in the currency of the country specified in the contract.  This change was needed because of changes in foreign exchange conditions, and the instability of sterling, since United Railways.

Mills v HM Advocate and another (2002) PC

^[Precedent – influence of ECHR]
C sought to have his conviction set aside because of the unreasonable length of hearing his appeal. There had been a breach of human rights (article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms).

He relied on Darmalingum v The State [2000] which would quash the conviction. He invited the Board to depart from the decision in Flowers v The Queen [2000] in so far as it was not compatible with the authority of the European Court of Human Rights and the decision in Darmalingum's case.

 

Held: No weight should be attached to either of those decisions in the present context. Flowers case was not in the public interest.  Darmalingum's case went too far. There was no precedent in domestic law for the remedy sought. Jurisprudence of the European Court of Human Rights did not conflict with this finding.

Sentence reduced by nine months

Murphy v Brentwood DC [1990] HL

[Precedent – HoL  - examples of departing]
D the local authority negligently approved building plans for a house with inadequate foundations C the purchaser of a house which developed serious cracks.

Held: A seven-man House departed from the decision in Anns v
Merton BC [1977] saying that the Council owed no duty of care to the purchaser.

Lord Keith:

”There can be no doubt that to depart from the decision would re-establish a degree of certainty in this field of law which it has done a remarkable amount to upset.”

This is often referred to as ‘The Retreat from Anns’ 

Newsome, R v [1970] HL

[Precedent – criminal division does not apply stare decisis as rigidly as civil division – liberty of the subject an addition to Young]
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. This rule was followed also in R v Gould [1968]

 

Not guilty

Oldendorff v Tradax Export [1974] HL

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(The Johanna Oldendorff, E L Oldendorff & Co GmbH v Tradax Export SA [1974] HL)

 

^[Precedent – departing from an  uncertain rule]
The ship ‘Oldendorff’ arrived at
Liverpool
to unload grain.  She was required by the port authorities to wait within the legal limits of the port but 17 miles from the docks for a berth to become available.

The question was when could a ship be said to be "in port", upon which the contract (charterparty) in this case hinged.

Held: The ship was in port when she was "an arrived ship" for purposes of charterparty liability.

An earlier precedent - The Aello (overruled) – had incorrectly interpreted Leonis Steamship Co Ltd v Rank Ltd (1908), and it had been wrongly decided.  The old rule was so vague that it caused commercial uncertainty, and so they formulated a new, more certain rule.

 

She had arrived

Pepper (Inspector of Taxes) v Hart [1993] HL

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[Precedent recent examples of judicial law making]
D a schoolteacher benefited from reduced fees for his children. The rate of tax payable on these fees was to be found in Parliamentary discussions recorded in Hansard.  C was the inspector of taxes.

 

Held: Allowing the use of Hansard as an extrinsic aid to the interpretation of statutes (subject to certain conditions). Using the Practice Statement the HoL departed from its own decisions in Davis v Johnson [1979] and two other decisions.

Practice Statement (Judicial Precedent) [1966] HL

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^Lord Gardiner LC:

“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.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. 

This announcement is not intended to affect the use of precedent elsewhere than in this House.”

R v Governor Brockhill Prison ex p Evans (2000) HL

[Precedent – retrospective overruling]
C had been detained about 2 months longer than he should have been because the governor had calculated his release date on a Home Office formula that had been approved by the Divisional Court.

 

Held: The Divisional Court had declared what the law always had been. The governor had relied on the law as he believed it to be, but it was now clear that those responsible for his detention had been wrong.

 

Compensation awarded

R v R (rape - marital exemption) [1991] HL

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[Precedent – retrospective overruling]
D living apart from his wife raped her in her parents’ home, which he had forcibly entered.

 

Held: Abolishing a husband's 250 year old immunity from criminal liability for raping his wife The long-standing rule that a wife was deemed to have given her consent irrevocably was no longer appropriate.

Lord Keith:

"This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it"

Lord Keith thought this was an example of the common law evolving in the light of changing social, economic and cultural developments.

 

Guilty

Also here

Roberts Petroleum Ltd v Kenny Ltd. [1983] HL

 

 

[Precedent – use of reports]

Held:  Stating per curiam that the House should not allow transcripts of unreported judgments of the Court of Appeal to be cited in appeals to the House unless leave was given. The transcript must contain a statement of a relevant principle of law which was binding on the Court of Appeal and of which the substance was not be found in a recognised law report.


Criticised in Michaels & another v Taylor Woodrow Developments Ltd & ors Chancery Division (2000)

Rogers v Essex CC [1985] DC, HL

[Precedent – binding nature of Divisional Court]
C the parent of a 13 year old girl required to walk an unreasonable route to school. C appealed against his conviction for failing to send his child to school, claiming the justices had misdirected themselves as to what constituted a "reasonable route" for the child to walk.

Held: The
Divisional Court allowed C’s appeal and quashed the conviction and held that the court was prima facie bound by its own decisions when sitting in its appellate capacity. 

In the House of Lords the appeal of the LA was allowed reversing the decision of the Divisional Court.

Rookes v Barnard [1964] HL

 

 

[Precedent – use of precedent to extend the law in another field]
A claim against members of a union for damages as a result of the union urging its members to threaten withdrawal of services from the claimant's employer if he were not removed from his position.

 

Held: C was entitled to recover damages as he had established against the members of the union a good cause of action at common law for the tort of intimidation which was not defeated by the Trade Disputes Act, 1906.

No doubt many of the old cases in which a [claimant] has been held entitled to recover damages from a defendant who has intimidated a third party can be explained on the ground of nuisance, or some other recognized tort, but some cannot…and I agree with your Lordships that the existence of this tort is established by authority.”

Seymour, R v [1983] HL

[Precedent – significance of obiter –test of recklessness]
D a lorry driver collided with another car. When the driver of the car (V) got out of the car D drove his lorry into the car and V was crushed between the two vehicles. V was killed.

 

Held: The appropriate direction to the jury in a manslaughter case where death was caused by reckless driving was Lord Diplock's dicta in Lawrence.

Lord Roskill (obiter) :

“[there is]…a need to prescribe a single and simple meaning of the adjective "reckless" and the adverb "recklessly throughout criminal law unless Parliament has otherwise ordained in particular case. That simple and single meaning should be the ordinary meaning of those words as stated in this House in R v Caldwell and in R v Lawrence.”

Guilty of death by reckless driving

Shaw v DPP [1961] HL

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[Precedent – policy and doubtful precedents]
D conspired to corrupt public morals by publishing a booklet containing details prostitutes, and their services.  This was hitherto an unused common law offence.

Held; Lord Tucker cited precedents for the offence.
Viscount Simonds;

In the sphere of criminal law, I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for.”

Lord Reid (dissenting) said there were widely differing opinions as to how far the law should punish immoral acts done in private,

 “Some think that the law already goes too far, some that it does not go far enough. Parliament is the proper place, and I am firmly of opinion the only proper place, to settle that.”

 Guilty

Shivpuri, R v [1986] HL

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[Precedent – overruling – law correctly applied, or rule of law no longer desirable]
First time Practice Statement used in a criminal case. D was arrested entering the country, carrying a package which he believed contained either heroin or cannabis, but was in fact harmless ground dried vegetable. D was charged with attempting avoid import restrictions; smuggling.

 

Held: Accepting that previous law had been incorrectly applied, concerning the Criminal Attempts Act 1981.
And acknowledging widespread criticism -
that the previous case had created a distinction that the court now considered to be confusing and incapable of sensible application - of its decision in Anderton v Ryan [1985] (barely a year old) (given after the Court of Appeal had decided Shivpuri) HoL applied the Practice Statement to depart from that decision.

Dismissing the recentness of the decision to be overruled as a factor weighing in favour of not overruling it, Lord Bridge said,

"If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better.”

Lord Bridge wrote the main opinion in Shivpuri and had also written one of the two main opinions in Anderton.  The concern that as the court changes in membership, issues previously dealt with will now be reargued, overruled seem to be minimized.

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

Note this case went to the Lords and was later effectively overruled by Jersey v Holley [2005] PC

Southwark London Borough Council v Mills (1999) HL

[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

Vestey v Commissioners of Inland Revenue [1979] HL

^[Precedent – HoL departing and overruling]
This case involved the interpretation of taxation law involving private trusts.

Held: Overruling Congreve v Commissioners of Inland Revenue [1948] HL.
Lord
Edmund-Davies

“We can now see the startling and unacceptable consequences of Congreve when applied to circumstances never contemplated when that case was being considered.”

Departing should be exercised sparingly, particularly in relation to questions of the construction of statutes. But if the circumstances of a particular case are of a different character, departing is allowed.

White v Jones [1995] HL

[Precedent - finding the ratio - a good example of the modern "incremental" approach]
D a solicitor was asked to prepare a will, but negligently failed to do so before the testator died. Two claimants who should have received legacies under the will sued D in negligence.

 

Held: On the question of whether the solicitor D owed the beneficiaries a duty of care, there was no clear precedent. The majority of the House agreed that the beneficiaries should succeed.

D lost

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