Airedale NHS Trust v
Bland  HL
[Precedent - example of judicial law making]
Tony Bland 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.
Treatment could properly be withdrawn in such circumstances, because the
best interests of the patient did not involve him being kept alive at all
“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
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.
Balfour v Balfour [1918-19]
[Precedent – distinguishing]
A husband promised to pay his wife £30 a month while she remained in
England and he worked in Ceylon. Their marriage broke down and the wife
brought an action to reclaim money she said her husband owed her.
“The common law does not regulate the form
of agreements between spouses.... each house is a domain into which the
kings writ does not seek to run ..."
This case distinguished by Lord Denning in
Merrit v Merrit  CA
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 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
No 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?
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 Lords in
Rookes v Barnard , had been made per incuriam and so they
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
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
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.”
Asbestos v Dodd (and Smith) (1973) HL
[Precedent – finding the intention of parliament]
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 Limitation Act said
“I think this Act has a strong claim to
the distinction of being the worst drafted Act on the statute book”
Central London Property v High Trees House  KBD Denning J
[Precedent – obiter dicta can be persuasive]
D leased a block of flats in London from C in 1937. When war broke out,
many flats were left empty as people were evacuated to escape bombings. C
agreed to reduce the rent by half if D stayed. D paid the reduced rent
until the end of the war, and C then claimed for the "arrears".
Held: Denning J "discovered" the equitable doctrine of promissory
estoppel, and said that although C were once again entitled to the rent
originally agreed after the war ended, they could not go back on their
promise to accept a reduced rent for the earlier years.
When a party to a contract makes a promise to the other, which he knows
will be acted on, that he will not enforce his strict legal rights; the
equitable principle of promissory estoppel makes that promise binding on
him until such time as he gives reasonable notice of his intention to
resume those rights.
Denning J (obiter
dicta) said that had Central London sued for the arrears for the
years 1940-45, it would have failed. It would have been estopped
from going back on its promise [as set out in the 1940 agreement] to
accept a reduction in rental, even though that promise had not been
supported by any consideration from High Trees because to hold otherwise
would have been unjust.
Clegg, R v
[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.
Lord Lloyd, whilst not averse to judicial law-making - citing
R v R 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.
The issue of self
defence (and therefore excessive force) did not strictly arise in this
case as when the shot that killed the girl was fired, the vehicle in which
she was travelling had passed Clegg. However, they did review the law on
The Home Office released Clegg which sparked off several riots in Northern
Ireland at the time.
D’s conviction was later quashed on different
Director General of Fair Trading v The Proprietary Association of Great
Britain (2001) CA
[Precedent – courts must follow the ECHR]
The Restrictive Practices Court did not to stop a trial because of the
alleged lack of independence of one member of the Court (Dr Rowlatt had
applied for a post at an economic consultancy, one of the directors of
which gave expert evidence on behalf of the Director General).
Held: Appeal against the decision allowed. Article 6 of
ECHR was applied. Ratio in
R v Gough
(1993) HL (on bias) refined.
Donoghue v 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.
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
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.
Doughty v Turner
Manufacturing  CA
[Precedent – additional reasons CofA will depart - where it has been
disapproved by the Privy Council]
D the factory owners where C was badly burned when cement was knocked into
a bath of molten metal causing a violent and unexpected chemical
Re Polemis  the Court of Appeal held that a person who performed
a negligent act was liable for all its direct consequences. However,
The Wagon Mound  the Privy Council had disapproved the rule in
Polemis and held that liability existed only where the kind of damage
was reasonably foreseeable. The CofA followed the PC ruling and found D
not liable for C's injuries,
“I take it that whether The Wagon Mound is
or is not binding on this court we ought to treat it as the law.”
…that is binding on the CofA.
Fitzleet Estates v Cherry
[Precedent - 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 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  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. “
Gillick v West
Norfolk & Wisbech HA  HL
[Judicial Creativity –
law making, where
Parliament has not done so]
Mrs Gillick a Roman Catholic mother of five daughters sought a
declaration that a doctor would be acting unlawfully if he gave
contraceptive treatment for any of her daughters without the mother's
consent. It was argued on the one hand that teenage pregnancies
would increase if the courts ruled that parental consent was necessary, on
the other hand that the judges would be encouraging under-age sex if they
Held: By a majority of three to two. A child under 16 who can
fully understand the implications of the proposed treatment (a "Gillick
competent" child) can give her own consent to medical treatment.
(Since Parliament had not legislated, the courts had to make a decision
one way or the other.)
Mrs Gillick lost
Gould, R v
[Precedent – criminal division does not apply
as rigidly as civil division]
D remarried in the honest, but mistaken belief that his first marriage had
Held: In R 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.
CofA does not apply the doctrine of
with the same rigidity as in its civil jurisdiction: if on due
consideration it is of the opinion that the law had been misapplied or
misunderstood in an earlier decision and can depart even though the case
could not be brought within any of the exceptions in
Young v Bristol Aeroplane Co Ltd 
In principle there is no difference in the application of
in the civil and criminal divisions, however, in addition to the Young
exceptions, because a person's liberty may be at stake, precedent is not
followed as rigidly in the criminal division.
R v Wheat  not followed as it conflicted with the authorities
which establish that a bona fide claim of right is a defence even if it is
founded upon a mistake of law. The judgment in R v Wheat  was
This case was heard by the newly created CofA.
v Field (2000) CA
[Precedent – use of reports]
Excessive citation of authorities - particularly in the form of case law
summaries (in this instance one from Lawtel) which did not use the
language used by the judge and in which it was unclear whether the
judgment had been summarised by a professional lawyer - were to be
These recent cases indicate that it is perhaps time that a thoroughgoing
examination of the use of the burgeoning number of law reports and digests
of reported and unreported cases was made by the judiciary. Only then will
lawyers and information professionals have certainty about what is and
what is not to be allowed.
Howe, R v
[Precedent – HoL - examples of departing – significance of
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.
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
 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
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]
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
James v Eastleigh
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 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.”
Kadhim v Brent
London Borough Council (2001) CA
^[Precedent – exception - principle binding only if previously argued]
C claimed his human rights had been infringed over the payment of Housing
Held: A lower court was not bound by a proposition of law which,
although part of the ratio decidendi of an earlier decision, had
not been the subject of argument before, or consideration by that court.
However, this exception to the strict rule of precedent was to be applied
only in the most obvious cases.
Kleinwort Benson Ltd v Lincoln City Council (1998) HL
[Precedent - retrospective change to the law – judges ‘clarify’ the
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 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
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.
Held: Principle not policy keeps the common law flexible and
Merrit  CA
[Precedent – distinguishing]
D and C married, but the husband C went to live with another woman.
C agreed to pay D £40 a month and she was to pay off the mortgage. When it
was paid off he would transfer the house into her sole ownership. The wife
paid off the balance of the mortgage and the husband then reduced the £40
a month to £25 a month. Balfour v
Balfour  CA held that a spouse could not sue the other spouse.
Held: Distinguishing Balfour
v Balfour  CA and Jones v Padavatton  CA, Lord
Denning stated that an intention to create legal relations could found
between a husband and wife where they were living in amity and separated
or about to separate.
In deciding whether or not an agreement is intended to establish legal
relations the surrounding circumstances must be looked at to see whether
reasonable people would regard the agreement as intended to be binding.
House belonged to D.
Michaels & another v Taylor Woodrow Developments Ltd & others
[Precedent – use of reports]
MR Justice Laddie said:
"There are now significantly more judges,
more case and more databases than there were even two decades ago"
"Now there is no pre-selection. Large numbers of decisions, good and
bad, reserved and unreserved, can be accessed. Lawyers frequently feel
that they have an obligation to search this material. Anything which
supports their clients' case must be drawn to the attention of the
The judge said this meant: increased client costs which is counter to the
spirit of the Woolf reforms poor decisions which should have "died a quiet
death" are used to support actions the "common law system stands the risk
of being swamped by a torrent of material"
However, Mr Justice Laddie said Roberts Petroleum Ltd v Kenny Ltd.
 HL left problems especially if it were extended to other
a decision which was clearly wrong but the
only authority for an untenable position would not be excluded by the
principle in Roberts Petroleum.
generalised and specialised reports have
proliferated so much that they may be less reliable than in 1983
seeking leave could be too cumbersome a
on current principles of stare decisis,
how could a court of first instance, for example, refuse a unanimous,
but unreported, decision of the Court of Appeal?
Lawyers would still need to search
databases for cases since they still might be able to apply for leave
no-hoper claims might be kept alive
pending leave to rely on lame duck judgments.
Finally Mr Justice Laddie examined possible solutions which, in other
countries, have involved a class of "non-precedential" judgments. He
suggested that all extempore judgments of any court and any judgment of
courts of first instance should not to be cited unless the court indicated
to the contrary. All judgments would still be available to the public, but
only the selected ones could be used for citation.
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
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
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
Munster v Lamb (1883) Brett MR
"The judges cannot make new law by new
decisions; they do not assume a power of that kind: they only endeavour
to declare what the common law is and has been from the time when it
first existed. But inasmuch as new circumstances. And new complications
of fact and even new facts, are constantly arising, the judges are
obliged to apply to then what they consider to have been the common law
during the whole course of its existence and therefore they seem to be
laying down a new law, whereas they are merely applying old principles
to a new state of facts."
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.
Held: Allowing the use of Hansard as an extrinsic aid to the
interpretation of statutes (subject to certain conditions). Using the
Statement the HoL departed from its own decisions in Davis v
Johnson  and two other decisions.
Statement (Judicial Precedent)  HL
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
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
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
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.
R v R (rape -
marital exemption)  HL
Whole case here
[Precedent – retrospective overruling]
D living apart from his wife raped her in her parents’ home, which he had
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.
"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.
(children)  CA
[Precedent – example of judicial law making – not regarded as
"Conjoined twin" Jodie and Mary needed to be separated to save the life of
one the twin, but causing the immediate death of Mary.
Held: Lord Justice Ward: this case did not create a precedent for
other cases except on specified facts.
Declaration approved, operation carried out Mary died Jodie is living a
normal life at the time of writing.
Re Automatic Telephone and Electric Co. Ltd’s Agreement (1965) CA
[Precedent – example of binding nature of stare decisis]
One judge dissented in Re Schweppes Ltd’s Agreement (1965) CA but
when later the same day the same point was involved in a similar case the
judge said he was bound to follow the decision in the first case
Re S (Adult:
refusal of medical treatment) 
[Precedent – recent examples of judicial lawmaking]
D the health authority caring for a seriously ill 30yr old woman who
refused a Caesarean section on religious grounds. C applied for a
declaration to allow an emergency Caesarean section which was the only
means of saving the patient's life and ensuring the live birth of the
Held: Sir Stephen Brown relied upon Lord Donaldson's caveat in
Re T (Adult: Refusal of Treatment)  ‘the only possible
qualification is the case in which the choice may lead to the death of a
viable foetus', and the American case of Re AC  and granted a
declaration that a caesarean section could be lawfully performed on a
competent woman without her consent.
This case has heavily criticised both for its substance and its procedural
Rickards v Rickards  CA
[Precedent – early attempts to depart for other reasons]
An appeal which turned on the Court's discretion to extend time limits.
Held: Departing from an earlier decision refusing jurisdiction in
such cases, on the grounds of that it was manifestly wrong.
Lord Donaldson MR said:
“The importance of the rule of
stare decisis in relation to the Court of Appeal's own decisions
can hardly be overstated. We now sometimes sit in eight divisions
and, in the absence of such a rule, the law would quickly become wholly
uncertain. However, the rule is not without exceptions, albeit
very limited. These exceptions were considered in
Young v Bristol Aeroplane Co Ltd  Morelle Ltd v Wakeling
 and, more recently, in Williams v Fawcett ,
where relevant extracts from the two earlier decisions are set out.
These decisions show that this court is justified in refusing to follow
one of its own previous decisions not only where that decision is given
in ignorance or forgetfulness of some inconsistent statutory provision
or some authority binding on it, but also, in rare and exceptional
cases, if it is satisfied that the decision involved a manifest slip or
error. In previous cases the judges of this court have always
refrained from defining this exceptional category and I have no
intention of departing from that approach save to echo the words of Lord
Greene MR (in
Young's case  Evershed MR (in Morelle's case 
and to say that they will be of the rarest occurrence.”
Ltd v Kenny Ltd.  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
Criticised in Michaels & another v Taylor Woodrow Developments Ltd &
others Chancery Division (2000)
Shaw v DPP
[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.
”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
Borough Council v Mills (1999)
[Precedent - retrospective change to the law – judges are said to be
clarifying the law]
D local authorities. C were tenants of Southwark and Camden
councils. They both complained of being able to hear all the sounds made
by their neighbours because the flats had no sound insulation. It was not
a question of the neighbours being unreasonably noisy.
Held; As an ordinary use of residential premises without more was
not capable of amounting to a nuisance, and a landlord could not be held
liable in tort where he had not authorised the commission of an actionable
nuisance, or for authorising his tenant to do something that would not be
actionable if he did it himself, the appellants could not invoke the tort
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
House of Lords is usually careful not to overstep its constitutional role.
Spratt, R v
[Precedent – significance of obiter]
D caused ABH by shooting a 7-year-old girl twice, with an air pistol. He
was firing from the window of his flat, aiming at a target in the yard
V was playing in the yard D had not known she was there.
Held: They did not follow Lord Roskill's dictum in Seymour,
saying that the recklessness required for offences under the Offences
Against the Person Act as defined in R v Cunningham and as
envisaged in R v Venna was clearly subjective recklessness (that
is, that D foresaw the risk but went ahead regardless), because the
judgment in R v Venna speaks of recklessness and intention as being
often almost indistinguishable.
Jones  HL
[Precedent - finding the ratio - a good example of the modern
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.
Williams v Fawcett (1985) CA
[Precedent – exceptions to Young – previous decision per incuriam –
liberty of the subject]
C was committal to prison for breach of a non-molestation court order.
The paperwork failed to specify the breaches or to grant an adjournment.
Held: Sir John Donaldson MR:
These were material irregularities for which the order would be quashed.
Previous decisions were per incuriam the error had been compounded
by a line of cases, and this was an exceptional case.
Allowing the respondent's appeal against an