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II.RULE TWO AND THE COURT OF APPEAL

Despite statements in three recent cases5 from some Court of Appeal judges apparently to the contrary, it is clear that rule 2, the nature of which is discussed in section III, binds the Court of

Appeal. The Court has a duty to consider relevant decisions, but it has a duty to apply (that is, is bound to follow) any decision of the House of Lords which, and this vital point will be discussed later, actually settles or covers the particular dispute before the Court---a covering decision. A similar duty, to apply any statutory

under rule 2 to apply a covering decision of the Court of Appeal or High Court. Such a covering decision, being relevant, must be con- sidered very seriously under rule 1, and thus has considerable persuasive value, or, as Professor Dworkin puts it, "gravitational force." 6 It is probably true to say that in practice the Court of Appeal will generally approve landapply a previous covering decision of its own or of the High Court, but this is not because of the binding nature of rule 2 on the Court.

A brief look at the cases illustrates and emphasises the truth of these assertions. In Broome v. Cassell and Co. Ltd. the Court of

Appeal considered the application of the restrictive rules concerning the award of exemplary damages laid down by the House of Lords in Rookes v. Barnard.7 Lord Denning M.R., Salmon and Phillimore L.JJ. decided that Rookes could not stand and need not be followed

on two main grounds. First, in 1964 the House of Lords was bound by its own previous covering decisions on the issue, and thus could not overthrow settled common law principles. Secondly, the decision in Rookes was given per incuriam. There was no real argument before their Lordships; and the decision itself was "hopelessly illogical and inconsistent," 8 and "in conflict with the basic rules governing the law of this country and . . . unworkable in practice." 9 The argument came to this, that rule 2 has no application in the Court of Appeal. Covering decisions of the House of Lords, at the very least when they are mistaken (and how often can judges skilfully argue this?), have only persuasive force under rule 1, but no binding force under rule 2. Presumably, however, no member of the Court would have been so ready to argue that a covering statutory provision was mistaken, since there had not been adequate argument in Parliament or the measure was contrary to common sense, and therefore need not be applied? The Law Lords condemned strongly

5 Broome v. Cassell & Co. Ltd. [19711 2 Q.B. 354 (C.A.); [1972] A.C. 1027 (H.L.); Schorsch Meier GmbH v. Hennin [19751 Q.B. 416; and Ailiangos v. George Frank

(Textiles) Ltd. [1975] Q.B. 487 (Bristow J. and C.A.); [1976] A.C. 443 (H.L.). 6 R. M. Dworkin, Taking Rights Seriously (1977), pp. 110-115.

7[1964] A.C. 1129.

8[1971] 2 Q.B. 354 at p. 381 (per Lord Denning M.R.).

9Ibid. at p. 397 (per Phillimore L.J.).

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the stance taken by the Court of Appeal. Viscount Dilhorne suggested that the Court of Appeal can justifiably refuse to follow the House in only two circumstances.10 The first is where remarks are

obiter; but these are not part of any covering decision, and only possess persuasive value. Secondly, the Court can choose which of two clearly inconsistent House of Lords decisions to follow. This must arise very rarely in practice, and in any case the Court is still bound to apply one of the decisions-it cannot ignore them both. It is arguable that the later covering decision is automatically that to be followed, particularly as the 1966 Practice Statement 11may sup- port a doctrine of implied overruling of a prior decision of the House by a later inconsistent decision of the House. Lord Hailsham of St.

Marylebone L.C. was most forceful in putting forward a justification for rule 2 based on necessity:

"The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers." 12

Cross points out that the word " necessary" was used not only in an imperative sense, but also

"in the sense of 'essential to the working of a judicial system like the English.' When a single decision can settle the law on a particular point, the court in the highest tier must have the last word and, when spoken, that last word must be followed by all low-tier courts, however much they may believe it to have been mistaken." 8S

The other cases must be taken together-Schorsch Meier GmbH v. Hennin and Miliangos v. George Frank (Textiles) Ltd. The full story starts with the House of Lords decision in Re United Railways of the Havana and Regla Warehouses, Ltd.,l4 which was concerned to settle the date at which a debt payable in American dollars had to be converted into its sterling equivalent for the purposes of a claim and judgment in the English courts. Their Lordships all assumed the existence in English law of a rule that judgment could only be given in sterling. Their decision confirms the rule, as it was an integral part of that decision. Lord Denning said: "If there is one thing clear in our law, it is that the claim must be made in sterling and the judgment given in sterling." 15 This statement clearly provides a rule "applicable in an all-or-nothing fashion."16 As a rule

10 [1972] A.C. 1027 at p. 1107.

1 [1966] 3 All E.R. 77.

12[1972] A.C. 1027 at p. 1054. This argument was also used by Lord Diplock at p. 1131.

13Cross in Law, Morality and Society, at p. 147. See generally Julius Stone, "On

the Liberation of Appellate Judges-How not to do it " (1972) 35 M.L.R. 449.

14[1961] A.C. 1007.

15Ibid. at pp. 1068-1069.

16Dworkin, op. cit. p. 24.

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An appeal by the plaintiff was heard by Lord Denning M.R., Stephenson and Geoffrey Lane L.JJ. This was allowed, and damages awarded in Swiss francs, on the ground that the Court was bound by its previous majority decision in Schorsch Meier, particularly silncethe latter had only recently been reached after full and sensible argument.22 On further appeal the House of Lords by four to one upheld the order of the Court of Appeal, thereby declining to follow its own previous decision in the United Railways case. The Law Lords criticised the stance adopted by the majority of the Court of Appeal in Schorsch Meier: and by the unanimous Court in Miliangos (although Lord Simon of Glaisdale also thought the Court of Appeal in Miliangos was correct in following its previous wrongly reached majority decision in Schorsch Meier, under rule 3), and affirmed most powerfully the continued operation of rule 2. Lord Wilberforce said: "It has to be reaffirmed that the only judicial means by which decisions of this House can be reviewed is by this

House itself, under the declaration of 1966; "22 Lord Simon of Glaisdale stated that " it is clear law that the Court of Appeal is bound

House. Such a review can only be undertaken by this House itself

under the declaration of 1966-I think that it was wrong for the Court of Appeal to follow the Schorsch Meier decision." 24

This discussion has indicated the strength of the view, held parti- cularly in the House, that rule 2 is binding on the Court of Appeal. What emerges very clearly is that the true rationale of rule 2 lies in an element of necessity. Rule 2 is necessary for the smooth operation of the judicial system as an integral part of the political structure in England. It makes workable the English system of hierarchical courts and indeed it goes a very long way towards maintaining that hierarchical structure.

Loyal application of rule 2 provides certainty and will avoid the possible embarrassment which might affect High Court and Court

of Appeal judges facing what are prima facie conflicting covering decisions from courts of differing status. This point was emphasised by Lord Hailsham in Broome, and was highlighted by the Schorsch

Meier/Miliangos litigation. Lawton L.J. and Bristow J. accepted rule 2 without question. Bristow J. wisely avoided embarrassment at the outset by denying that the Court of Appeal majority decision in Schorsch Meier had any binding force on him as a decision of a

higher court, since as a matter of logic if he acknowledged in his own court the existence of the hierarchy of courts, he must apply the covering decision of the House of Lords, the United Railways

22[1976] A.C. 433 at p. 459.

23Ibid. at p. 470.

24Ibid. at p. 496.

Mar. 1980] PRECEDENT IN THE COURT OF APPEAL 141

rule.25Stephenson and Geoffrey Lane L.JJ., however, faced two " rules of precedent" each urging prima facie towardsladifferent conclusion-rule 2 urging towards applying the United Railways

rule, and thus upholdingthe order of BristowJ.; and the "rule," rule 3, that, subject to well-definedexceptionswhich did not apply in the case, the Courtof Appeal is boundto applyits own previous coveringdecisions,urgingtowardsapplyingthe majoritydecisionin Schorsch Meier and allowing the appeal. They chose wrongly to

adopt this latter course, wrongly because they were not thereby applying" the law" on that particularmatteras it properlyexisted at that time. The rulein UnitedRailwaysstill stoodfirmlyas the law

by virtue of rule 2. Indeed, it is arguablethat the SchorschMeier majority decision was not law in any proper sense, since it was reachedin total disregardof the properlaw as it then existed in a rule of the House of Lords, and which under rule 2 bound the Appeal to reach a decision contrary to that actually reached. The correct, and logical and safe, course for Stephenson

and GeoffreyLane L.JJ.was to ignoreSchorschMeier.Presumably, had the majority in Schorsch Meier disregardeda clear covering statutory provision rather than a covering rule of 'the House of Lords,they would not have been so readyto applySchorschMeier in Miliangosunder rule 3. Indeed, it is suggestedthey would have felt boundnot only to ignoreSchorschMeier for the determination of the case before them and applythe statutoryrule withoutques- tion, but also to express in the strongest terms their belief that SchorschMeier was as wronglydecidedas it was possiblefor a case to be. There is no reason to think that there is any material

differenceso far as the Court of Appeal is concernedbetween a covering decision of the House of Lords,ianda coveringstatutory provision.The Courtis boundto follow and applyboth, the former underrule2, and the latterunderthe rule, similarto rule 2, that all

English courts must apply covering statutoryprovisionsas the first source of law. There is no doubt, then, that in the system of hierarchyof courts faithful adherenceto rule 2 indeed avoids any embarrassmentthat can arise.

It is arguablethat rule 2 operatesto constrainthe Courtof Appeal to reach a particulardecisiononly in a small minorityof the cases which come before that Court, not only becauseHouse of Lords

decisions are few in number, but also because of the very narrow conception of a covering decision, being the only type of decision bindingon the Court. A coveringdecision, as stated earlier, is one which " actually settles or covers the particulardisputebefore the Court," or a coveringratio decidendi.26The ratio is generallydescribed,by theoristsand practitionersof the Englishlaw, as the rule

25 See note 21 above, and Cross in Law, Morality and Society, at p. 152, where he cites a passage from Lord Wright's speech in Noble v. The Southern Railway [1940] A.C. 583 at p. 598.

26 Cf. Cross, Precedent, pp. 103-104.

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applied to decide any particular case, even though not expressed as clearly in the original case as in a later case, when the ratio of that earlier case has to be ascertained and given clear expression in terms of a rule.27

A covering decision, then, consists of the ratio decidendi of the

case, generally in the form of a rule. The facts of the case in dispute must be those facts stipulated by the rule as being necessary for the operation of that rule. Only then will the rule present a covering decision within rule 2. The limited practical effect of covering decisions results from the limited nature of a rule in terms of its

applicability. It is suggested that Dworkin's early discussion of the nature of a rule is most important and helpful. He argued that there is a clear and logical difference between propositions of law in the

form of rules, and those in the form of principles. " Rules are appli- cable in an all-or-nothing fashion. If the facts a rule stipulates are

given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes

nothing to the decision." 28 To illustrate this point Dworkin discusses a rule of law that a will is invalid unless signed by three witnesses:

"If the requirement of three witnesses is a valid legal rule, then it cannot be that a will has been signed by only two witnesses and is valid. The rule might have exceptions, but if it does then it is inaccurate and incomplete to state the rule so simply, without enumerating the exceptions. In theory, at least, the exceptions could all be listed, and the more of them there are,

the more complete is the statement of the rule." 29

To provide the intended all-or-nothingness rules will generally be expressed in detailed and closely defined language. "A will must

have three witnesses to be valid." " If any dog fouls the footpath a fine becomes payable." " No person is allowed to enter the park

after 6.00 p.m." A rule might need judicial interpretation because of

linguistic ambiguity, before it is clear whether the rule is applicable in the light of the facts of the case. A rule may say that "no vehicles are permitted in the park." Does this rule apply to a skate-

board? This is simply a question of the definition of "vehicle." If

the skateboard is a vehicle, then the rule, if valid, must apply. The United Railways rule was valid because it emanated from the House

of Lords, and it was a covering decision in both Schorsch Meier and Miliangos in the all-or-nothing way of a rule.

The vast majority of cases in the Court of Appeal will be hard cases. In a hard case, there is simply no covering statutory provision

27 See Cross, Precedent, Chap. II. Cross himself proposes that " [tlhe ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury " (at p. 76).

Mar. 1980] PRECEDENT IN THE COURT OF APPEAL 143

or covering decision of the House of Lords,30(or at the very least none which needs no further interpretationbefore application),

because the facts stipulatedin any relevantprovisions,decisionsor rules are not presentin the disputedcase. Such relevantrules will

have only importantpersuasiveor gravitationalvalue, and resort will often be had to other legal standards,such as principles,in

decidinghard cases. Furthermore,potentiallitigantsare unlikelyto

risk challenging,possiblyat great expense,what appearto be clear covering rules, unless there is a strong view that a presentrule is wrong because it is out of date, etc., and is likely to be departed from by the House of Lordsunderits 1966PracticeStatement.Such

a belief clearlyinfluencedthe plaintiffsin Miliangosto pursuetheir

claim for an awardof damagesin a foreign currency,forcingthem

to challengean existing coveringrule clearly to the contrary. Our conclusionis that rule 2 appliesin the Courtof Appeal, and

apply any covering decision of the House of Lords. This view will be furthersupportedby the discussionof the natureof rule 2 in sectionIII. The rationaleof rule2 is the element

of necessity. Rule 2 does not, however, have a very far-reaching practicalsignificance,becausethe conceptionof a coveringdecision is narrowand appliesonly in a small minorityof cases, and those generally cases where the ultimate aim is to allow the House of Lords to consider the continuing applicabilityand rightness of a widely questionedrule of law. It is also argued that this narrow

conceptionof a coveringdecisionappliesto rule 3. Rule 3, if binding

on the Courtof Appeal, will also applyonly in a small minorityof cases. The consequencein practicalterms is that the vast majority

of Courtof Appealcaseswill be hardcases,whenthe only applicable

"rule of precedent " is rule 1.

III. THE NATUREOF RULES ONE AND TWO

We have saidthat rules 1 and2 are bindingon the Courtof Appeal. The next question is: in exactly what sense are these rules valid andbindingon the Courtof Appeal?

The commonlyaskedquestionis: are " rules of precedent" rules of law or statementsaboutpractice;and, if the latter,what precisely does this mean?31 Let us start with rules of law. How can we

discover if it is the law that the Court of Appeal must apply a coveringdecisionof the House of Lords,in the same way that it is

of convention or practice has been criticised by Laurence Goldstein, '"Four Alleged Paradoxes in Legal Reasoning" (1979) 38 C.L.J. 373, esp. pp. 382-391. He argues that viewing such " rules " as statements of practice is inadequate because it fails to explain their coercive effect; and suggests describing such " rules " as " guidelines "

(statements of intention or resolutions), or as " paradigms" or " exemplars." I am not convinced that "rules of precedent" themselves have any coercive effect

independently of some of the reasons for adopting or not adopting specific practices (discussed in section V herein).

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the law that a will needs three witnesses to be valid? 32 Professor

Hart's theory of law is particularly attractive.33The validity of any particular rule of law stems from an ultimate rule of recognition providing "authoritative criteria for identifying primary rules of obligation," 34 and existing in "a variety of forms."34 The more numerous the different sources of law, the more complex the rule of recognition providing as it does for the "relative subordination of one criterion to another." 35 Hart stresses that the rule is not

often stated clearly, " but its existence is shown in the way particular rules are identified," 3 particularly by an "attitude of shared acceptance of rules." 37 He continues: "The use of unstated rules

of recognition, by courts and others, in identifying particular rules of the system is characteristic of the internal point of view. Those who use them in this way thereby manifest their own acceptance of them as guiding rules. . ." a38Most important, " [t]o say that a given rule is valid is to recognise it as passing all the tests provided by the rule of recognition and so as a rule of the system." s9 It is suggested that in terms of Hart's theory one cannot ask whether rules 1 and 2 are rules of law, since they are both parts of the ultimate rule of recognition by which rules of law are recognised.40 They are rules of reference by which rules of law are identified, and accorded validity. There is an attitude of shared acceptance or institutional recognition towards them. Sources of law from

precedent are accepted and recognised as vital, and justifiable, within

that rules 1 and 2 are "'valid " as part of the rule of recognition can only mean that they exist as particular forms of social practice. As

for the whole constitution, the rule of recognition is simply the acceptance by judges and other officials of the living reality of that constitution. A part of this present living reality is that the Court of Appeal must consider relevant case law, and, secondly, is bound to apply covering decisions of the House of Lords. Rules 1 and 2, therefore, are binding on the judges of the Court of Appeal because they are valid rules of practice. They would cease to be valid (and binding) parts of the rule of recogntion if judges and other officials ceased to have a generally shared internal attitude of acceptance of them. There would then be a revolutionary change, an alteration of the rule of recognition. Such change in the " rules of precedent" will occur very slowly, and it will probaby be impossible to pinpoint clearly a single moment of change.41 There may be a change in the

41 This point is illustrated by, for example, the continuing debate on the direct applicability of European Community law in the United Kingdom. Also relevant is