Cases - precedent - other issues

Airedale NHS Trust v Bland [1993] HL

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Held: Treatment could properly be withdrawn in such circumstances, because the best interests of the patient did not involve him being kept alive at all costs.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

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.

Atkin J

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

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

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".

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?

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 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 [1947] 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.

Also here

Clegg, R v [1995] HL

[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 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 excessive force.

The Home Office released Clegg which sparked off several riots in Northern Ireland at the time.

D’s conviction was later quashed on different grounds.

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 [1932] 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 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.

Doughty v Turner Manufacturing [1964] CA

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

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

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

…that is binding on the CofA.

Fitzleet Estates v Cherry [1977] HL

[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 [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. “

Gillick v West Norfolk & Wisbech HA [1985] HL

[Judicial Creativity – activist 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 did not.

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

Also here

Gould, R v [1968] CA

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

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

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

In principle there is no difference in the application of stare decisis in the civil and criminal divisions, however, in addition to the Young exceptions, because a person's liberty may be at stake, precedent is not followed as rigidly in the criminal division.
R v Wheat [1921] not followed as it conflicted with the authorities which establish that a bona fide claim of right is a defence even if it is founded upon a mistake of law. The judgment in R v Wheat [1921] was mostly obiter.

Not guilty
This case was heard by the newly created CofA.

Hamblin v Field (2000) CA

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

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

Howe, R v [1987] 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 [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 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.

Kadhim v Brent London Borough Council (2001) CA

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

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

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.

Merrit v Merrit [1970] CA

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

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

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

House belonged to D.

Michaels & another v Taylor Woodrow Developments Ltd & others (2000) CD

[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 court".

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. [1983] HL left problems especially if it were extended to other courts:

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 process
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 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

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."

Pepper (Inspector of Taxes) v Hart [1993] 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 Practice Statement the HoL departed from its own decisions in Davis v Johnson [1979] and two other decisions.

Practice Statement (Judicial Precedent) [1966] 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 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

Whole case here

[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.