учебный год 2023 / Precedents

266

MODERN LAW REVIEW

VoL. 9

view that

a Divisional

Court

is bound by

its own

previous

decisions,

whatever the

nature

of the appeal,

probably

owes its

Lord

Alverstone.

In

Morris v.

Beal,4' when the Court was

considering

a previous

decision of a Divisional

Court of which

Lord Alverstone

C.J. was

a member,

he said 48:

'It

is possible

that

grounds

may be suggested for reviewing

that decision,

but

at all events

we are bound by it here '.

He

considered

the

question

of

the

binding

effect

of

precedents

more

fully

in

L. C. C. v.

Schewzik 49 in which

he

followed

a prior

decision

with

reluctance,

as

he thought he ought

not

to

distinguish

it,

and

added 50:

I only desire to say, coming to that

conclusion,

that

there is an important

matter

which I have mentioned

more

than once since I have been sitting

in

this

Court, and I

refer

to

it again because of

its

extreme

importance,

and

that

is the importance

of uniformity

in the decisions of this

Court.

The Court of Appeal

have recently

recognised

that

it is

desirable

in

the

public

interest,

and

in

order

that

people may know with certainty

what

their

position

is,

that

courts of co-ordinate jurisdiction should follow their

decisions

unless

there

are strong

grounds

which

enable

the

Court to say that the previous decisions ought not to be

followed

'.

After this pronouncement

Lord

Alverstone

C.J.

continued

to

hold himself bound by previous decisions.5'

to the case or

Lord Alverstone

C.J. does not give

references

the

Court of Appeal reversed a decision of a Divisional

Court

of which he was a member,

Vaughan Williams L.J. saying 53:

'In

this case the Divisional

Court only followed the decision in

expressed this view (Davies v.

Evans, 9 Q.B.D. 238, 241, Div.

Ct. (case

contrary conclusion myself,

but I follow what the Lord Chief Justice

says,

and

I consider myself bound by that case '.

Evans

v.

51 R. v. Roberts, [1907] 2

K.B. 878, 883, Div. Ct. (certiorari);

268

MODERN LAW REVIEW

VoL.

9

of the strictly

binding nature of all previous decisions in the

Divisional Courts has continued down to the present

time.

In

1944 Lawrence

J. said,6' referring to a case decided

in the same

year, ' This point has already been disposed of by

a Divisional

Court in British

Doughnut Co., Ltd. v. Dale 62 which would

be

binding on us '.

In two judgments 63 of Humphreys

J. in 1945

Court ',

and ' That is a decision which is binding

upon us

The

Court

of

Appeal

has

continued

to

express approval,64

on appeals

from Divisional

Courts, of the

action

of the

court

below in holding itself bound by its own decisions.

In De Vries

v. Smallbridge,6" in which

the Divisional

Court had followed a

previous

decision

of

a

Court

composed

of

three

judges,

Scrutton

L.J. commented

that the members of the court below

'thought

they

ought to

observe the rule of that

Court,

which

is to

respect

the

decision

of

a Court of

three

judges,

and so

they

reversed

the

decision

of

the

county court

judge'.

This

suggestion that the

binding

effect

of a Divisional

Court ruling

depends

on the number of members 66 of the Court seems to be

unique.

It

could

not

have found favour under the

older

practice

67 of

the

Divisional

Court, according

to

which

three

judges sat in cases in the

Crown paper and two

in cases in the

civil

paper;

appeal

lay

from the court of two judges while the

would

provide, by exception,

a binding precedent

even

though

there

was

a right

of

appeal.

But

elsewhere

68

he

stated

in

61 Concentrated Foods, Ltd. v.

Champ,

[1944]

E.B.

342,

348, Div.

Ct. (case

62

stated).

[1944] K.B. 228, Div. Ct. (case stated).

63

R. v. Sunderland JJ.,

[1945]

K.B.

502,

508, Div.

Ct. (case stated),

referring

to McGregor v. Telford, [1915] 3 K.B. 237, Div. Ct. (case stated), and Ross v.

The English Steel Ccrporation, Ltd., [1945]

2 A.E.R.

606, 608, Div. Ct. (case

stated), referring to Felton v. Heal, [1920] 3

K.B.

1,

Div.

Ct. (case stated).

And a fortiori up to the time of the abolition of the hearing of county court

appeals

by

Divisional

Courts the

Judges in

these

Courts continued to hold

themselves bound by a single previous

decision, e.g.,

Acton J.

in

Baker

v.

E.

Longliurst rf Sons,

Ltd.,

[1933]

2

K.B.

461,

462, 463, Goddard J.

in

Knott v. L. C. C., [1934] 1 K.B.

126,

132.

64 Phillips

v.

Coppina,

[1935]

1 K.B.

15, 18,

per Scrutton

L.J.,

Fordree

v.

65

Barrell,

[1931] 2 N.B.3 257, 260, per Scrutton L.J.

[1928] 1 K.B. 482, 486.

66 It has no relation to the constituting of a special Divisional

Court of more than

the usual number of members for the express purpose of considering a particu-

lar precedent: supra, p.

263.

OCT., 1946

DIVISIONAL COURT PRECEDENTS

269

general terms that a Divisional

Court was bound

by its own

decisions.

When

a Divisional

Court is

composed

of members

of the Court of Appeal

sitting

as additional

judges of the King's

Bench

Division

the

Court will

hold

itself

just as much

bound

as a Divisional

Court

constituted

in the ordinary

way.60

When

a Divisional

Court is equally

divided

and the

appeal

fails as

a

consequence

a subsequent

Divisional

Court

is not

bound

to follow

the

decision;

it will follow the judgment

which

it thinks

correct.70

The rule in the

Court of Appeal

when that

Court is equally

divided

is now the other way; the precedent

is

treated

as

being one in which the appeal was dismissed by a

majority.7'

But

a Divisional

Court

is,

like

the

Court

of

Appeal,72

not

bound73

by

a

decision

given

per

incuriam.

Another

kind

of

exceptional

instance

in

which

a

Divisional

Court

has

held

itself

not to be bound is found in

Re

a

Solicitor74

where

Lord

Caldecote

C.J.

held 7

that,

having

regard

to

the

language

used

by

Avory

J. in an earlier

case,76

opportunity of fully considering

the

question raised though, as

Avory

J. said,77 it was

'impossible

for the Court to do justice

in this

matter without

creating

a precedent, which may or may

heard '.

This

attempt

to

nullify

the

future

binding

effect

of

the precedent created was successful.

bound

The

Divisional

Courts, in holding themselves

strictly

by

a previous

decision,

have adopted

the rule of the Court of

69

Harrison

v. Ridgway

(1925), 133 L.T. 238,239, Div. Ct. (Cnty. Ct. appeal), per

Bankes and

Scrutton L.JJ.,

Fordree v. Barrell,

[1931] 2

K.B. 257, 260,

C.A.

(Div. Ct. appeal), per Scrutton L.J.,

De

Vries v. Smallbridge, [1928] 1 K.B.

482, 486, C.A. (Div. Ct. appeal), per Scrutton L.J.

Ct. (case stated),

TOGrocock v.

Grocock, [1920] 1

K.B.

1,

11,

13,

Div.

per

Darling,

Avory, and Salter JJ.

Ltd.,

[1928]

1

K.B.

176,

C.A.,

in

which

71

Hart

v.

Riversdale

Mill

Co.,

Scrutton L.J. adopted (pp. 188, 189) the well-established

rule in the House of

Lords that the House is bound by a previous decision in which the House was

equally divided.

But Scrutton

L.J.

does not notice two

occasions

on

which

the

Court of Appeal had expressed the opinion that it

would not be bound in

such

circumstances:

The Vera Cruz (No. 2),

9

P.D.

96,

98,

C.A.,

per

Brett

M.R., Smith v. Lambeth Assessment Committee,

10

Q.B.D.

327,

328,

C.A.,

72

per Brett

L.J.

K.B.

pp. 729, 730.

Young v.

Bristol Aeroplane Co., Ltd.,

[1944]

718, C.A.,

73 R. v. de

Grey,

[1900] 1 Q.B. 521, Div. Ct.,

where a previous decision,

given

in a case in which the Court's attention had not been drawn to 'three

strong

authorities',

was not followed.

74

[1944]

K.B.

427, Div. Ct.

270

MODERN LAW REVIEW

VOL. 9

Appeal

in preference

to that

of courts

of first instance in which

the judge is not absolutely

bound

by a previous decision

of the

same

court.

It

has

often

been

stated

that

the

absolutely

binding

effect

of

precedent

came

to

be

accepted

only

in

the

nineteenth

century.

In

the

case of the

Divisional

Courts this

stage

in

the history

of judicial

precedent

was

reached only

in

the

twentieth

century.

CONFLICTING PRECEDENTS

When

precedents

of a kind

which

are normally

binding

on

the court are in conflict

with one another,

the obligation

on the

court,

if any,

is uncertain,

although

the

problem

is not

a new

one.78

On this subject

Romilly

M.R. said 79

'I

have

usually

not followed decisions of courts of contemporary

co-ordinate

jurisdiction

in cases

where

such decisions

have

been

contradic-

tory

to

a long

line

of authorities,

and I have

thought that

the

early

cases

were

right '.

Pollock

C.B. acted

in the

same way

when presented with a similar conflict

in the precedents,

though

he

cautiously

added 80:

'I

should have felt myself bound

by

the

last

authority

upon

the

question

of a court of co-ordinate

jurisdiction,

if the previous

one had

been

adverted

to and had

been

deliberately

overruled '.

In

the

same

case Parke

B. was

in

a

minority

in

thinking

that

the

single

precedent

should

be

followed

rather

than

the

earlier

series

of

decisions.

He

confessed

himself

surprised

at the case as 'being

alike at vari-

ance with the previous authorities

and

with

the

words

of

the

statute

',

nevertheless

he concluded

81:

'If

the

decision

of

the

present case rested with me, I should

act

upon that authority

as being the last upon the

point,

by

giving

judgment

for the

defendant,

leaving

the plaintiff

to

bring his

writ

of error.

In

this

respect

I

differ

from

the

other

members

of

the Court '.

tory decisions perhaps the

court may be more readily allowed

to exercise

its untrammelled

judgment.

As Lord Abinger C.B.

78 See the present writer's articles

'Conflicting Precedents'

(56 L.Q.R. 457) and

'Precedent

in Equity ' (57 L.Q.R. at pp. 260-262).

79

Re Buller's Settlement (1862), 8 Jur. p. 205.

B. put it (ibid., 700, 701):

80

Watts v.

Rees (1854), 9 Ex. 696, 700. As Platt

' In this conflict of decisions in the same court upon this statute, our judgment

must necessarily conflict with one of them, for we

have no other course open

to us except to reject the one and follow the other'.

According to the report in

23 L.J.Ex.

238 the Court was bound to follow the series of decisions: ' I feel

myself bound by the

weight of

previous authorities'

(per Pollock C.B., ibid.,

p. 239): ' We ought

to decide this point in conformity

with a large series of

OcT., 1946

DIVISIONAL

COURT PRECEDENTS

271

said 82:

'It

appears

to me very hard that where the decisions

are

at

variance

the

party is to be bound by the last '.

He

followed

the

earlier

case.

The

Divisional

Courts,

like

other

courts,

have

had

to

deal

with several

kinds

of conflicts

among

the

precedents.

(a)

In

Broughton

v.

Whittaker"8

a decision of a Divisional

Court in

the

previous year

was

found to be in conflict

with a

series of three earlier decisions.

The conflicting decision was

not

followed.

Lawrence

J.

was

able

to distinguish

it

but

he

also

said84

that

'it

ought

not

to be held

by this

Court

as

binding

upon them

to

disregard the

clear

authority'

of

the

clear whether or not the

Court was strictly

bound

to follow

the

series of cases in question.

The same uncertainty

in this situation

exists

in the Court

of Appeal, as is shown by Battersby v. Anglo-American

Oil Co.,

Ltd.,85 in which

there was ' a consistent line of authority ' 86

on

a certain point apart from one decision

'in

conflict

with

the

earlier cases ' 8:

' Accordingly, in conformity

with the

decision

Bristol

Aeroplane Co.,

Ltd.,88 we are at liberty

to disregard

it,

and, in

our opinion, we ought to follow

the earlier

decisions '

This passage suggests that the series

of precedents

is not

bind-

ing, but that the Court may choose

to

follow

them; the

word

'ought'

would

seem

to

refer to

the

legal

content

of

the

decisions.

But

when it was laid down in Young v. Bristol

Aeroplane

Co.,

Ltd., that

a conflict

in the precedents

is one of

the exceptional

cases in which the Court of Appeal is not bound

tion

with Battersby v.

Anglo-American

Oil Co., Ltd.,

that ' if

the

reason on which

the doctrine of

the absolutely

binding

6s Ibid.,

p. 29.

87

Ibid.,

p. 32, judgment of the Court per Lord Goddard.

s8

[1944]

K.B. 718.

89

Ibid..

p. 726: 'The Court is unquestionably entitled

to choose between the

two conflicting decisions'. 'The Court is entitled and bound to decide which

of two conflicting decisions of its own it will follow'

(ibid., 729).

90

61 L.Q.R. 119.

272

MODERN LAW REVIEW

VOL. 9

nature of precedents

is based is the need for certainty,

then

there would seem to be much to be said for a rule which

would

in the Battersby

Case.

A series of decisions

has always

carried

greater

authority

than

a

single decision;

at

one

time

a series

of

decisions

was

the only

strictly

binding

authority.

An

explicit

ruling

is necessary

before

the

binding

effect

of a series

can

be

taken

as

being

destroyed

or even

impaired

by

the

presence of

a subsequent

inconsistent

decision.

It would seem

to

be the duty

of the

court

which is presented

with such a

conflict to restore case-law discipline rather than

to give

way

to

the

recalcitrant

decision.

(b)

When

the

conflict

is

between

two

series

of

decisions

there is more reason for

the court to be allowed

an unfettered

choice.

In

the

Divisional

Court

in

Bowker

v.

Woodroge 9

there were two

decisions

on one side and two

on the

other,

all

of them

being

decisions

of Divisional

Courts.

The

Court fol-

lowed the two

decisions

which Shearman

J. said 92 had

' for a

the

earliest

and

the

latest

of

the

four.

In Ratkinsky

v.

Jacobs 9

there were

two Divisional

Court decisions

on each

side,

but also a Court of Appeal

decision supporting

the earlier

pair.

On principle,

it would

seem that

the

decision

of a higher

court

must

be

followed

whatever

conflicting

co-ordinate

decisions 94there may be in addition

on the point, yet

Branson

J. did not hold himself bound:

'There

being,

then,

these

two

lines

of

authorities,

which,

to

my mind,

are

inconsistent,

it

tion of the statute,

and to decide for myself

the point raised ' 9.

(c) A

conflict

between

a

Divisional Court decision

and

a

decision

of

a judge

of

first

instance presents

no difficulty to

a

subsequent

Divisional

Court.

As Denman

J. put it in Tancred

v.

Delagoa

Bay

Ry.

Co. ":

'When

the

decision

of

a

single

judge, whether hearing

demurrers

or sitting

at Nisi Prius with-

out

a jury,

conflicts

with the

decision

of a Divisional

Court,

as

in

these

two cases,

I

think

that

we,

sitting

as

a Divisional

OCT., 1946

DIVISIONAL

COURT PRECEDENTS

273

Court, ought to follow the decision of another

Divisional

Court

in preference to

that

of a single judge '.

When

there

is

a

conflict

between

two Divisional

Court

decisions

there

is no obligation

to follow

either

on a subsequent

occasion.

In this case

Lord Alverstone

C.J. held '9

that

prece-

dent

had

no binding

effect:

'We

have

to

choose

between

con-

flicting

decisions

'.

A

few

years

earlier

Bigham

J.

had

exer-

cised

a similar

choice.98 The freedom of choice

still

exists

when

there is a right of appeal from the Divisional

Court to

the Court

of

Appeal.

In

Davies

v. Bristow,9

a county

court

appeal

in

the

Divisional

Court,

Lush

J. said

00: c These

two

cases

being

in my opinion irreconcilabl

I feel at liberty

to express my own

views

as

to

the

correctness

of

the

decision

in'

the

later

case,

and

he

approved

of

the

earlier

one.

Shearman

J.

said 10

because

the

decisions

were

irreconcilable,

'the

result

is

that

this Court is at liberty

to form its own opinion

as to the

correct

principles to be applied '.

If

this

liberty

of

judgment

now existed in the

Divisional

Courts

generally

and

not merely

when

there

is

a

conflict

of

authority

it would be in accordance

with

an older and,

it may

be thought,

a sounder

practice

than

the

present

one.

W. H.

D.

WINDER.

97

Thompson v. Eccles

Corp., [1904]

2 K.B. 1, 6,

Div.

Ct. (case stated).

98

Elliot

v.

Pilcher, [1901] 2 K.B.

817,

822,

Div.

Ct.

(case stated).

99

[1920]

3 K.B.

428.

100 Ibid.,

p.

437.

101

Ibid.,

p.

440;

the

Court did 'not

feel

itself

bound'

(p. 442).