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be assumed that extensive argument was heard on the precedent point. It is submitted that this was an immense waste of time. The relevance of statements as to the received behaviour in respect of
precedent in the Court of Appeal expressed by members of previous, differently constituted divisions of the Court, or by members of the House of Lords, is only that they might influence the perception of his/her duty by a judge hearing a case. The expectancies of those sitting with him, and the other members of the court are, it is submitted, much more important than views expressed by Brett M.R. in The Vera Cruz (No. 2).57 Since the statements as to what rules of precedent applied in the past (whether they say the Court of Appeal is bound or not) are not per se (as precedents) binding
upon the court, they are not "precedents"58nor "authorities,"59but merely evidence for the existence of behaviour and critical attitudes
on the part of members of a particular court.
(ii) Alteration. The rules can be altered by an agreement on the part of all the judges of a particular court to change. It is, with respect, not the case that, as Lord Simon said in Miliangos v. Frank0:
". .. it is clear law that the Court of Appeal is bound . . . (at least on its civil side) by a previous decision of the Court of Appeal itself: Young v. Bristol Aeroplane Co. Any change in
this respect would require legislation."61
The better view of the possibility of change is that expressed by Lord Salmon in Davis v. Johnson62:
"I would also point out that [the Practice Direction] was made with the approval of all the Law Lords: and that, by contrast, the overwhelming majority of the present Lords Justices have expressed the view that the principle of stare decisis still prevails and should continue to prevail in the Court of Appeal. I do not understand how, in these circumstances, it is even arguable that it does not ...
I sympathise with the views expressed on this topic by Lord Denning M.R., but until such time, if ever, as all63his colleagues in the Court of Appeal agree with those views, stare decisis must still hold the field."
Lord Salmon is clearly of the view that it is the "reciprocal interac- tional expectancies" of the judges in the Court of Appeal which give rise to the obligation to apply the rules of precedent. With respect, however, it seems that if this is the case, it would not need all the
57 (1880) 9 P.D. 96.
58Pace Lord Denning M.R. in Davis v. Johnson [1979]A.C. at p.281D. 5 Pace Goff L.J. at p.299A.
60[1976] A.C. 443 at pp.470-471.
61 Emphasis added.
62[1979] A.C. at p.344D.
63 Emphasis added.
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judges together to abandonstare decisis (althoughobviouslyto do so, as was done in the House of Lords, is the clearest and most
decisive way, in the absence of legislative intervention).Suppose that aroundhalf the judgesof the Courtof Appealdecidedto depart from strictstare decisis, and a judge newly appointedto the Court
had to decide what to do: it is probablethat she could adopt either course. The resolution of such a division in the Court of Appeal
couldcome by the givingof guidanceby the Houseof Lords(because althoughsuch statementscould not bind the judgesof the Courtof Appeal as a matter of law, the deference accordedto membersof
the House of Lordscouldnonethelessmaketheirdeclarations highly
persuasive).If the judges with whom the House of Lordsdisagreed refusedto pay heed to their guidance,the positionof the Masterof the Rolls, whose function is to allocate both judges and cases to
divisions of the Court, would become even more important,but there seems no obvious solutionto such an impasse.
The only commentatornot to take the view that (for whatever reason)in the absenceof statutoryinterventionthe Courtof Appeal
alone may decide its own rules of precedent,is Evans. His sugges- tion64is the postulationof a rule, as partof the rule of recognition, stipulatingthat judges may from time to time settle the rules of
As to the |
position |
in the Courtof |
Appeal, |
he writes66: |
precedent.65 |
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"The Court of Appeal itself is in the best positionto judge by
constant experience the advantagesand disadvantagesof the rule. Further,it itself firstlaid down the rule, so clearlythere is no traditionthat only the House of Lordscan determinethe
rules affectingthis court. On these groundsit shouldbe recog- nized that the Courtof Appeal can changethe ruleif it chooses
to, the power being exercisableby a majorityof its permanent members.Thereseems no reason,though,whyit shouldpossess this power exclusively.Because of its role as generalsupervisor of the law, the House of Lords should also be able to change
the rule if it chooses to . . . if a majority in the House of Lords were to expressa contraryview, rulingin a formalway that it
alone was entitled to change this rule, then . . . because the
House shouldbe able to make a finalrulingon anypointof law its decisionshouldbe decisive."
This is a radicallydifferent view from any put elsewhere. Evans views the laying down and the alterationof rules of precedentas analogousto the exerciseof a powerto legislate.Thushe wouldsee some formaldeclarationin the natureof the 1966PracticeDirection
as necessaryto the alterationof the precedentpositionin the House
64Op. cit. p.173.
65He does not allow that the rules of precedent themselves be part of the rule of
recognitionbecause rules of precedent may be changedbut (save in revolutionarymanner) the rule of recognition may not. It is submittedthat this gives an undulywide meaning to "revolutionary,"and that the problem Evans sets himself need not arise. In any event he attaches rather more significanceto this semantic issue than is necessary.
66Op. cit. p.178.
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of Lords. The view adopted here is that such a declarationas the 1966one does not itselfalter the position, but is merelyevidenceof a change in the standardsaccordingto which judges will consider themselves bound. The question remains whether the House of Lordseitherhas or shouldhave powerto alterthe rulesof precedent in the Court of Appeal. It is submittedthat the answeris that the House does not have such power, becausethe rules are established by the attitudesand behaviourof the judgesof the Courtof Appeal. The "general supervisor"of the law which does have power to intervene and dictate to the Court of Appeal is not the House of Lordsin its judicialcapacitybut Parliament.
IV
Rickett67states four argumentsfor Young:
1.The argumentthat Young is binding in the sense of being more than merely a rule of practice.
2.The certaintyargument.
3.The floodgatesargument.
4."Thedifferencebetweenthe Courtof Appeal, andthe House
of Lordsand Parliament" argument.
Of these "arguments,"1 and 4 do not arguefor the view that the Court of Appeal should be bound by its own decisions, and 3 is merely a consequentialistway of stating2. The statementthat the rulein Youngis or is not bindinguponthe Courtof Appeal, andthe mannerin whichit is bindinghave no relevanceto the evaluationof the rule, so "argument1" does not supportthe rule in Young.One reason why certainty in the law (Rickett's second argument) is claimed to be of value is so that people may order their affairs properlyand so as to avoid litigation. Hence, even if it could be shown (as neither Rickett nor Cary attempt)that greatercertainty is introducedinto the lawbyrigidadherenceto staredecisis,Rickett's
second and third argumentsmerge into one. As to the fourth, he puts the argumentthat68:
"The House is the court of last resort, and therefore needs
specialpower to reviewits own past decisions
The Court of Appeal is only an intermediateappellate court
and 'the appropriateforum for the correctionof the Courtof Appeal's errorsis the House of Lords.'
It is difficultto regardthis argumentas being other than circular. The question is whether the House of Lords is invariablythe appropriateforumfor the correctionof the mistakesof the Courtof
Appeal. Merely |
to answer |
can |
be an |
for that |
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"yes" |
hardly |
argument |
view. The fact that the House of Lordsis the court of finalresort, there being no otherjudicialmeansto rightits errors,mightbe used
67pp.148-157.
68Op. cit. p.150.
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as an argument for the House of Lords to have the power given by the Practice Direction, and is not an argument available against
Young. Neither, however, is it an argument for Young. It is an irrelevant consideration.
Rickett then lists five arguments against Young.69 They are:
1.The argument that it is a self-imposed limitation of practice, and being self-imposed can be abolished.
2.The "purity of justice" argument.
3.The "dishonesty" and "confusion" arguments.
4.The argument that a power to depart from a previous decision will be used very rarely.
5.The "special position of the Court of Appeal" argument. For the same reason that argument 1 for Young is irrelevant,
argument 1 against has no bearing upon the question whether the rule is worth retaining. Arguments 2 and 3 may each be regarded as powerful (though we do not have available any properly marshalled evidence on the basis of which to form a decided view). The only problem is that the force of the-argument that rigid adherence to stare decisis will lead to the Court of Appeal deciding cases in ways other than their merits might require, is lessened when it is realised
that judges are prepared to distinguish the indistinguishable in order to bring about the result they favour (thus, as Rickett points out,
further confusing the law). Argument 4 is an interesting observation, which may or may not be true,70but in no way argues against Young. Argument 5 attempts to adduce the same sort of argument against Young as was used against stare decisis in the House of Lords, by claiming that in effect the Court of Appeal is often a court of final resort, because there may not be enough money to appeal, or the matter may be settled. This is a consideration to which much weight ought to be attached, at least, until such time as access to the Lords is made easier.
It seems, therefore, that if it can be demonstrated that in spite of the possible introduction of confusion into the law from distinguishing, strict adherence to stare decisis conduces to greater certainty in the law,71 the rule in Young should still only be retained if that certainty is valued more highly than "justice" in individual cases. Whilst there is no evidence that stare decisis gives rise to certainty, it is clear that there are cases where adherence to precedent gives rise to what judges at least regard as unjust solutions in individual cases.72 It is submitted that the avoidance of such tangible wrongs ought to be preferred to the dubious argument from certainty.
69Op. cit. pp.151-155.
70Kidd (1978) 52 A.L.J. 274, 276-277 shows the observation to be true in respect of
intermediatecourts in New South Wales.
Llewellyn's view that judicial activity in the "grant style" leads to greater
predictabilitythan the "formalstyle." The Common Law Tradition(1960) pp.180 et seq. See also Twining and Miers, How to do ThingswithRules (2nd ed. 1981), pp.266-293.
72 Cases which Sir Rupert Cross called "judicial regrets." Precedentin English Law, pp.35-37.
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V
The importance of the doctrine of precedent to the decision of litigated cases can, of course, be overestimated.73It is merely one
aspect of the complex set of techniques for the interpretationof cases, and focus upon the atypical cases in which the rules of
precedentare in issue can thereforebe misleading.This articlehas attemptedto suggestthreethingsonly. Firstthe realisationthatrules of precedent owe their bindingnatureto judges' attitudesto their own dealings and those of their brethren,should not precludeus from calling the rules "law" and, if necessary, "customarylaw." Secondly,the Courtof Appealshouldfree itselffromits self-imposed
fetters. Thirdly, little enlightenmentis to be gained from attempts to put the rulesinto a pre-existingset of jurisprudentialstereotypes.
PETER ALDRIDGE*
73 Stone "1966 and All That" 69 Colum.L.R. 1162. Supportfor this view may be gained from Shell InternationalPetroleumLtd. v. Gibbs [1982] 1 All E.R. 1057 (C.A.) in which
the headnote states The MandarinStar [1969]2 All E.R. 776, (C.A.) to be "disapproved"
by LordsDenningM.R. (who wanted to treat the earlierdecision as per incuriam,although it fell clearly outside the class or cases to which the per incuriamdoctrine has hitherto applied) or, alternatively,not to follow it (p.1064a). The case was "doubted"by KerrL.J. and "followed"by May L.J.. All three judges reached the same result.
* Lecturer in Law, University College, Cardiff. I am grateful to my colleague David Miers for his comments. He bears however, no responsibilityfor the views expressed.