A v Hoare
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
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) , 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
 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
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
Stubbings v Webb  HL overruled; Letang v Cooper
KR v Bryn Alyn Community (Holdings) Ltd (in liq)  All ER
(D) 101 (Jun) disapproved.
Addie v Dumbreck  HL
[Precedent - overruling by HoL - ratio refined - first use of
Practice Statement 1966 – negligence duty to trespasser]
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.”
Overruled, or refined by
British Railways v Herrington  HL
Adomako, R v (1994) HL
[Precedent – overruling by HoL]
Rare use in criminal cases on the
law of gross negligence manslaughter.
Overruled R v Seymour (1983)
NHS Trust v Bland  HL
[Precedent - example of judicial law making]
seriously injured in the
was being kept alive only by extensive medical
care (not a life-support machine). He had survived for three years in
vegetative state (PVS).
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.
properly be withdrawn in such circumstances, because the best interests of
the patient did not involve him being kept alive at all costs.
“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.
Frenchay Healthcare NHS Trust
v S  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 .
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.
Anderton v Ryan 
^[Precedent - overruling – law incorrectly applied]
The previous court did not correctly apply the law.
So this case overruled by
R v Shivpuri
 concerning the Criminal Attempts Act 1981
British Railways v Herrington  HL
^[Precedent – HoL
- examples of departing]
First major use of
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  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.
an occupier of premises was only liable to a trespassing child who was
injured by the occupier intentionally or recklessly.
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 (a minor) v DPP  HL
[Precedent – binding nature of
Judicial creativity – judicial cowardice]
A 12-year-old boy A was charged with interfering with a
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
had power to depart from its own previous decisions. The House of Lords
did not expressly consider whether or not the
was bound by its own decisions in appellate cases.
Lord Lowry gave the following guidelines for judicial law-making:
judges should beware
of imposing a remedy where the solution to a problem is doubtful;
they should be
cautious about making changes if Parliament has rejected opportunities
of dealing with a known problem or has legislated while leaving the
they are more suited
to dealing with purely legal problems than disputed matters of social
fundamental legal doctrines should not lightly be set aside; and
judges should not
change the law unless they can achieve finality and certainty.
Caparo v Dickman  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
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".
No duty was owed in those
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
2. Was there sufficient
proximity between the parties?
3. Is it fair, just and reasonable to impose a duty of
Cassell v Broome  HL
[Precedent – obligation to follow – status of
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
Rookes v Barnard ,
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
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
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
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.
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  HL
[Precedent – guidelines on judicial law making]
D fired several shots
at a car whilst he was on check point duty in
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.
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
v Rimmer  HL
[Precedent – HoL
- examples of departing]
example of HoL using
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
v Cammell Laird  should not be followed.
The House of Lords simply distinguished the
Conway case from the
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:
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.
v Johnson  HL
[Precedent – early attempts to depart for other reasons]
C was excluded from his home, by a
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
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
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.
Since this case there has been no further challenge to the principles of
Young v Bristol Aeroplane.
Stevenson  HL
[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.
was not material who had bought the ginger beer.
Or who poured it into the tumbler.
was not material that there was no contractual relationship between C and
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
Stevenson to include allsorts of items purchased by consumers. As
they have extended category of persons who are potentially liable.
Estates v Cherry  HL
reasons for departing]
The 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
and Knuller. Lord Wilberforce
stated in Cherry:
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 
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
[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.
involved negligent advice.
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
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.
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.
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
Ali v Sydney Mitchell & Co.
do not say that
Rondel v Worsley …was
wrongly decided at the time. The world was
different then. But, as Lord Reid said then, public policy is not
Immunity from suit removed
Howe, R v  HL
[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  to say that no
participant (whether principal or accessory) can claim duress in defence
to a murder charge.
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.
Gotts  obiter in
Howe was extended by holding that duress is not a defence to
Lord Griffiths said:
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.”
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
Shivpuri factor that the
exceptions carved out in the earlier cases lead to uncertainty in their
Hunter and others v Canary Wharf Ltd; Hunter and others v London Docklands
Development Corp  HL
[Precedent – example
of creating precedent by use of similar principle]
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.
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.
James and Karimi, R v  CA
^[Precedent - exception - Court of Appeal to follow PC in certain
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.
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.
Borough Council  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
“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
Jobling v Associated
Dairies Ltd.  HL
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
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.
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  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 
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.
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.”
… 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  HL
^[Precedent - the
liberty of a person]
C, and another, appealed against judicial review of an immigration
Overruling a line of cases, including its own decision in Zamir (l980),
adding "loss of liberty", as a ground for departing or overruling.
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
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.”
citizen needs protection from decisions of civil servants. The law cannot
extend to interference with liberty unless Parliament had unequivocally
enacted that it should.
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
Kleinwort Benson Ltd v Lincoln City Council (1998)
[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.
“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
”… 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
[Precedent – HoL - examples of refusing to depart or
D published a gay contact magazine thereby conspiring to corrupt public
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
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
London Tramways Co v
^[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
Lord Halsbury, L.C., stated:
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
McLaughlin v O'Brian  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.
Principle not policy keeps the common law flexible and consistent.
v George Frank Ltd  HL
[Precedent – overruling – law incorrectly applied, or rule
of law no longer desirable]
The rule in Re United Railways
 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.
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
He relied on Darmalingum v The State  which would quash the
conviction. He invited the Board to depart from the decision in Flowers
v The Queen  in so far as it was not compatible with the
authority of the European Court of Human Rights and the decision in
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.
reduced by nine months
DC  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
Held: A seven-man House
departed from the decision in Anns v
 saying that the Council owed no duty of care to the purchaser.
”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  HL
[Precedent – criminal division does not apply stare decisis
as rigidly as civil division – liberty of the subject an addition to
D remarried in the honest, but
mistaken belief that his first marriage had been dissolved.
v Taylor  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
v Gould 
Tradax Export  HL
(The Johanna Oldendorff, E L Oldendorff & Co GmbH v Tradax Export SA
^[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
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
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  HL
[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.
Allowing the use of Hansard as an extrinsic aid to the
interpretation of statutes (subject to certain conditions).
Practice Statement the HoL
departed from its own decisions in
Practice Statement (Judicial
Precedent)  HL
^Lord Gardiner LC:
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.
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.
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.
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
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.
R v R (rape - marital exemption)  HL
[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
"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
Roberts Petroleum Ltd v Kenny Ltd.  HL
[Precedent – use of reports]
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
Michaels & another v
Taylor Woodrow Developments Ltd & ors Chancery Division (2000)
CC  DC, HL
[Precedent – binding nature of
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.
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
In the House of Lords the appeal of the LA was allowed
reversing the decision of the
Rookes v Barnard
[Precedent – use of precedent to extend the law in
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.
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,
”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
the existence of this tort is established by authority.”
R v  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
appropriate direction to the jury in a manslaughter case where death was
caused by reckless driving was Lord Diplock's dicta in
Lord Roskill (obiter) :
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
and in R v
death by reckless driving
Shaw v DPP  HL
[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.
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,
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.”
[Precedent – overruling – law correctly applied, or rule of
law no longer desirable]
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
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  (barely
a year old)
(given after the Court of Appeal had decided Shivpuri) HoL applied the
Practice Statement to depart from that
Dismissing the recentness of the decision to be overruled as a factor
weighing in favour of not overruling it,
"If a serious error embodied in a decision of
this House has distorted the law, the sooner it is corrected the
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)  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.
The Court declined to follow the opinion in Luc Thiet Thuan v R
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  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.
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.
“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.”
”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.
Commissioners of Inland Revenue  HL
^[Precedent – HoL departing and
This case involved the interpretation of taxation law involving private
Held: Overruling Congreve v
Commissioners of Inland Revenue  HL.
“We can now see the startling and unacceptable consequences of Congreve
when applied to circumstances never contemplated when that case was
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  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
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.