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tuitously only if and when some dissatisfiedlitigant resolvesand is ableto carryhis causethere."97
Lord Denning'sview is that the Court of Appeal is, in practice, often the court of last resort, and therefore,while maintainingcertainty is important,the need to do justice for the parties,and for the future,is the vital factor.98
C. Some Conclusions on the Arguments
C1. The present position
If the analysis of " rules of precedent" as rules of practice is accepted,an evaluationof rule 3 can then be made. My own view is that the argumentsunder B are stronger than those under A. Therefore, rule 3 should be abandoned.So far, however, of the
appellatejudges only Lord Denning M.R. has urged and accepted this. Rule 3 continuesto be generallyand internallyaccepted,and the Court of Appeal is bound to apply its own previous covering
decisions.
The recent litigation over the interpretationof the Domestic Violence and MatrimonialProceedingsAct 1976,s. 1 (1) illustrates, however,the consequencesof the operationof rule 3. In B. v. B.99 a Courtof Appealof Megaw,BridgeandWallerL.JJ.heldthatsection 1 (1) was proceduralonly, and did not alter the substantivelaw
affectingpersons'rights to occupy property.In Cantliffv. Jenkins1 a Court of Appeal of Stamp, Orr and OrmrodL.JJ., applyingrule 3, followedB. v. B. faithfully.Then a five-manCourtof Appeal, in Johnson, heard an appeal from a mistressarguingthat section 1 (1) gave her rights to occupy propertyin which she had
been living, irrespectiveof the respondent'sproprietaryrights in
these premises. Lord Denning M.R. accepted her argument;and said that the Courtof Appeal was free to overruleB. v. B. and
Cantliff v. Jenkins because of a general freedom to depart from previouscovering decisions, or at least because the case would be treated as coveredby a new exceptionto rule 3. Sir George Baker
P. also |
that |
and |
to |
B. v. B. |
|
accepted |
argument, |
proceeded |
distinguish |
on a "somewhat narrow" ground. He realised,however, that by adopting such a course B. v. B. would unfortunatelystill stand.
97Ibid. at p. 877.
98See Lord Denning, Romanes Lecture (1959), op. cit. at p. 4: "' I am only
concerned,' (the lawyer) will say, ' with the law as it is, not with what it ought to be.' For him the rule is the thing. Right or wrong does not matter. That approach is all very well for the working lawyer who applies the law as a working mason lays bricks, without any responsibility for the building he is making. But it is not good
enough for |
the lawyer who is concerned with his responsibility to the community |
at large. He |
should ever seek to do his part to see that the principles of the law |
are consonent with justice. If he should fail to do this, he will forfeit the confidence of the people. The law will fall into disrepute; and if that happens the stability of the country will be shaken. The law must be certain. Yes, as certain as may be. But it must be just too."
99 [1978] 1 All E.R. 821.
[ [1978] 1 All E.R. 836.
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Nevertheless, he refused to overrule it by a general abandonment of
rule 3. He was very ready, however, to sidestep the two covering decisions by inventing another exception to rule 3. Goff L.J. also accepted that B. v. B. and Cantlif v. Jenkins were wrongly decided, but held that he was bound to accept them under rule 3 as binding upon him. Further, he could not fit the present case into one of the
existing exceptions, and obviously thought he was not at liberty to create a new exception. Shaw L.J. accepted the appellant's argu- ments, and invented a new exception to rule 3 to enable him to overrule the two cases. Cumming-Bruce L.J., however, was not able to hold that B. v. B. and Cantlif v. Jenkins were wrongly decided, and so followed them in dismissing the appeal. He stated further that he accepted rule 3 and would be constrained thereby to dismiss the appeal even if the cases were wrong.
The three judges in the majority thought that to apply B. v. B. in Davis v. Johnson would be to perpetuate a grave injustice on Miss Davis and on future applicants. However, only Lord Denning M.R. was bold enough to overrule B. v. B. without elaborately inventing new technical exceptions to rule 3, or, like Sir George Baker,
distinguishing B. v. B.
C2. Cumming-Bruce L.J.'s view
Cumming-Bruce L.J. suggested a solution to the conflict of views over rule 3 through administrative changes. To counteract the seductive nature of argument B5, he advocated " readier access to the House of Lords." He said:
"The injustice which today is liable to flow from the fact that unsatisfactory old cases are so seldom capable of review in the House of Lords would be mitigated or removed if Parliament decided to give this Court and the House of Lords power to order that costs in the House of Lords should be paid by the Exchequer in those cases in which this Court or the House of Lords on an application for leave to appeal certified that an appeal to the House of Lords was desirable in order to enable that House to review a decision regarded as mistaken but binding on the Court of Appeal. The expenses to the public and any resulting inconvenience would be infinitely less than that which would flow from a relaxation of the present practice in respect of stare decisis as declared in Young's case." 2
This argument was accepted by Lord Salmon.s Such a course would provide relief for those unable to afford an appeal, but there would still be numerous cases where there was settlement for one reason
or another out of court, or where a potential appellant simply decided not to go on. The bad decision would continue to be law
for the future.
2[1978] 1 All E.R. 841 at pp. 879-881.
3[1978] 1 All E.R. 1132 at p. 1153.
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C3. Professor Glanville Williams's view
In a letter to The Times of March 16, 1978, Professor Glanville
Williams expressed a more radical view. He believes that " precedent is simply a matter of practice for the courts, and it is for each court to determine its own practice." 4 The real question now, Professor Williams believes, is whether there is any point in a system of double
appeal. Perhaps the most sensible reform would be to wind up the appellate committee of the House of Lords and transfer its members to the Court of Appeal? The latter would now be the court of last resort, and as such it would be proper for it to have the power to
review its own decisions.5
This suggestion is most appealing. Its adoption is also, it is sub- mitted, possibly the only method by which those who argue that rule 3 should be abolished, but that rule 2 should be maintained, can
satisfactorily avoid an apparently inconsistent position. For example, if the United Railways rule was mistaken and unjust, why should the fact that it emanated from the House of Lords rather than an earlier
Court of Appeal prevent a later Court of Appeal refusing to follow it? The easy answer is, of course, that the House of Lords is higher in the hierarchy, and that its rules should therefore be applied without further question, in the same way as statutory rules should be. Democratic theory provides a reason why judges should not question the rightness of rules emanating from an elected and representative Parliament. But what provides a reason why common law rules should not be questioned if laid down by a particular court? It is said that where the rules are bad they will be changed
by that particular court, or by Parliament. But difficulties of a practical nature often prevent this safeguard operating. It would lead to a much better, and simpler, state of affairs if the Court of Appeal were to be the only appellate court.
VI. CONCLUSIONS
1. All rules of precedent are rules of practice which are generally and internally accepted by those who operate them. As such, they
are capable of being changed through a change in accepted practice. They are valid and therefore binding only in that they are generally
and internally accepted.
2.Rules 1 and 2 are valid and binding on the Court of Appeal, because they are generally and internally accepted. Rule 2 exists as a result of the hierarchical structure of the courts.
3.Although there has been some dispute about the existence
of rule 3 it is clear from the recent cases discussed that it is still
4 He added that " [t]he Court of Appeal has now developed a perfectly satisfactory way of reviewing its own decisions, within the limits at present allowed by practice, namely by convening a special court of five members, as it did in Davis v. Johnson."
5 This argument can be coupled with the point made earlier about the introduction of a special reference procedure. See also note 4 above.
158 THE MODERN LAW REVIEW [Vol. 43
generally and internally accepted by the judges, both of the Court of Appeal and the House of Lords.
4. Rules 2 and 3 are only applied in the Court of Appeal in a small minority of cases, as a result of the limited definition given to the term " covering decision " in those rules. Alternatively, the vast majority of Court of Appeal cases are hard cases.
5.The arguments in favour of rule 3 are outweighed by those against rule 3 and in favour of a practice whereby the Court of Appeal is free to review and depart from its previous decisions "when it appears right to do so." Therefore rule 3 ought to be discarded.
6.If rule 3 is discarded, there would be no reason based on precedent to continue a system of double appeal. The Court of Appeal ought to become the final court, perhaps adopting a special reference procedure for dealing with disputed covering decisions,
unless there are other overriding arguments of a different nature in
favour of maintaining a system of double appeal.6 Alternatively, if the Court of Appeal does become the final court before rule 3 has been abandoned, rule 3 ought then to be abandoned to allow the final court the power to review its previous decisions, in the same way as the Practice Statement of 1966 indicates that the House of
Lords as the final court has this power.
C. E. F. RICKETY*
6 |
This paper is not concerned with these other arguments. See, for example, some |
of |
the arguments presented by P. V. Baker, (1978) 94 L.Q.R. 358-361. See also, |
among numerous works, Louis Blom-Cooper and Gavin Drewry, Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972); Robert Stevens, Law
and Politics: The House of Lords as a Judicial Body 1800-1976 |
(1979); Gerald |
Gardiner and Andrew Martin, Law Reform NOW (1963). |
this paper was |
* Fellow of Emmanuel College, Cambridge. An earlier draft of |
|
read to the Jurisprudence Group at University College, London, on |
June 14, 1978. |
In particular, I wish to thank Stephen Guest. Lecturer in Jurisprudenceat University College, London, for the encouragement he has given me in our numerous discussions on precedent and related jurisprudential matters. All views expressed remain, of course, my own.