учебный год 2023 / In House Lords-2

Legislature, and if the law was to be changed, then it was for the Legislature to do this. The House of Lords thus applied harsh law, but criticised it. Almost immediately the law was changed when the Finance Act, 1960, introduced a new and more just set of

penalty provisions.

This is an ideal illustration of the theoretical relationship between judiciary and legislature. The law was changed as soon as the courts showed how absurd the position was. Unfortunately, these examples are rare. More commonly, if the House of Lords perpetuates bad law, or construes a statute to reveal unjust law, nothing is done to remedy the situation because Parliament does not have the time. There are several decisions of the House of

Lords which have been criticised generally, but which still repre- sent binding precedents for future courts.3

B." ORTHODOX " METHODS OF MODIFYING THE ORTHODOX

PosrrloNPOSITION

If Parliament rarely has time to change bad law, what methods have been available to the House of Lords to enable it to evade its

own previous decisions? It certainly could not bluntly refuse to follow a previous decision, since, as we have seen, it is bound by London Street Tramways v. L.C.C.4 The rules in Young v. Bristol Aeroplane Co.5 which lay down some of the exceptions to the rule that the Court of Appeal is bound by its own previous decisions might also provide some assistance in the House of Lords, although there is little authority on this. The first exception to the rule in the Court of Appeal is that the court is entitled and bound to decide which of two conflicting decisions of its own it will follow. There is no logical reason why this principle should not apply to the supreme tribunal. It may be that there are more of these decisions than is generally believed, for, at present, no one knows quite what authoritative law is concealed in House of Lords deci-

4[1898] A.C. 375. It is possible to launch a direct attack on this case by using various historical and philosophical arguments. See (1951) 63 Juridical Review, p. 233, "Precedents in the House of Lords," Landau. The writer

The results might be somewhat unexpected, but the decisions themselves all

whether the House of Lords would be able to manipulate this rule as dexterously as the Court of Appeal appears to be doing is doubtful.7 The second exception in the Court of Appeal is where a previous decision is inconsistent with the decision of the House of Lords. Obviously, no analogy with this rule can be used in the House of Lords itself. The third exception is where the earlier Court of Appeal decision was given per incuriam. Lord Halsbury L.C. in London Street Tramways v. L.C.C. expressly stated that the House of Lords might ignore a previous decision if it had been made in ignorance of a statute.8 Since the Court of Appeal has extended the per incuriam principle to ignorance of previous bind- ing case law as well as statute law, once again it seems reasonable to suppose that this extension might be applied also in the House of Lords. The most familiar way of evading an undesirable case has been for the court to distinguish its own previous decision or use the familiar argument that the supposed ratio decidendi of the previous case was not really the ratio decidendi, but merely obiter dictum and need not, therefore, be followed.9 This often results in judicial self-deceit, and although done with the best of motives, introduces into the House of Lords fine distinctions which

are confusing and damaging.10

The most honest way would be for the House of Lords to adhere strictly to its own principles. It should follow a previous undesirable decision, even though deploring it, and recommend reform. But reform does not usually appear, and so an unsatisfactory position arises. Hence the question is posed:

possible to introduce a change in the present system so that bad law can be sidestepped?

basis on which all the earlier law was founded has been destroyed . . . and

when there have been such important changes in the whole situation . . .

which had no application whatever in the days when these broad pronouncements were being enunciated."

C. THE PATH TO REFOBM

In the last few years several judges have suggested that it would be desirable for the House of Lords to be able to review its previous decisions. An examination of some of these statements might be valuable to see whether any coherent policy is being advocated.

In 1948 Lord Wright suggested that the House of Lords should have the same power of reviewing its own decisions as the Supreme Court of the United States."1 This power would not destroy the whole system of precedents, for " the instinct of inertia is as potent in judges as in other people." The court would only repudiate a precedent if it were completely satisfied that such precedent was erroneous. In this way there would not be the same urgency to carry to extremes the process of distinguishing. In answer to Lord Halsbury's justification of stare decisis Lord Wright stated that " there is greater public inconvenience in perpetuating an erroneous judicial opinion, than the inconvenience to the court of having a question, disposed of in an earlier case, reopened." He was not convinced that a relaxation of the stringent view as to the

absolutely binding effect of precedent would make much practical difference to our law. Lord Evershed M.R. went further and, in a

Public Lecture in 1950, expressed the opinion that, at present, " the principle of stare decisis " has no "rigid application " in the House of Lords.'"

Recently, some interesting judgments in the House of Lords (some relating to the construction of statutes) have again focused attention on this question. In London Transport Executive v. Betts 1s Lord Denning, in a dissenting judgment, refused to follow a previous decision of the House of Lords and stated:

"It seems to me that when a particular precedent-even of your Lordships' House-comes into conflict with a fundamental principle, also of your Lordships' House, then the fundamental principle must prevail. This must at least be true when, on the one hand, the particular precedent leads to absurdity or injustice and, on the other hand, the fundamental principle leads to consistency and fairness. It would, I think, be a great mistake to cling too closely to particular precedents at the expense of fundamental principle."

The statement, at that time, had to be looked at cautiously. Lord Denning was dissenting from the other members of the court (who all followed the previous House of Lords decision), and he also attempted to limit the previous case to its own facts. His statement is very general and difficult to delimit. Ostensibly, Lord Denning does not appear to go all the way with Lord Wright in

11 (1943) 8 Camb.L.J. 144. See also Lord Wright's remarks in (1950) 13 M.L.R. at p. 23.

12 The Court of Appeal in England, University of London, Athlone Press (1950)

decisions. But what are the fundamental principles which can override particular precedents? In this case the fundamental

principle was that " the judges have no right to fill in gaps which they suppose to exist in an Act of Parliament, but must leave it to

Parliament to do so." How many decisions in the House of Lords do not involve fundamental principles in this sense ? '1

Lord Reid, in this case, was unhappy about the result he felt obliged to reach as a result of precedent:

" It has long been established practice that any decision of this House in a previous case on a question of law, such as the

interpretation of a statute, shall be regarded as binding, and shall be followed, whether or not the question was adequately argued or considered, and however much your Lordships may disagree with the decision. I would not myself be against a modification of this strict practice, but so long as it exists I do not think that I am entitled to depart from it."

This judicial indication of discontent followed his earlier remarks during the Second Reading of the Occupiers' Liability Bill, where he stated:

" There are in the Commonwealth a number of courts which

have the power to re-examine their past decisions, sometimes by convening a larger Bench for that purpose. I would only instance the Court of Session in Scotland, with which I am most familiar. I have never noticed any ill-effects from the

fact that this court has that power, nor do I think anyone could say that there has been.any tendency to use it too freely. Of course, the justification for the present rule is that it is supposed to lead to certainty in the law-a most desirable thing, if one can achieve it. But a good deal could be said to the effect that it has exactly the contrary effect." '1

A year later, in a dissenting judgment in Ostimnev. Australian

" binding " decision in 1947 the House was never referred to a very relevant decision of its own,17 and then continued:

" What authority is to be given in these circumstances to the decision of this House in 1947 ? Is it to be followed step by

step regardless of consequences? . . . I think not. The doc- trine of precedent does not compel your Lordships to follow the wrong path until you fall over the edge of the cliff. As

soon as you find that you are going in the wrong direction, you must at least be permitted to strike off in the right direction, even if you are not allowed to retrace your steps."

Here Lord Denning appears to be arguing a little more widely than in London Transport Executive v. Betts. He is not confining himself expressly to fundamental principles. The other members of the court followed the previous binding House of Lords autho- rity, but the judgment of Lord Radcliffe is rather significant. He discussed the 1947 binding authority and pointed out that the analysis il that case may have been too wide. " But at the same time, I cannot help recognising that the decision was a unanimous decision of the House which was directed to analysing and explain-

different from the explanation then given unless I was convinced that it was unmaintainable." 18 As it was, Lord Radcliffe did not

find himself faced with that difficulty since he approved the reason- ing of the 1947 case. Is Lord Radcliffe suggesting that if he could not agree with the binding authority he could differ from it ? His last phrase suggests this, and, what is more, Lords Somervell and Birkett expressly concurred with his judgment.

What happens to the reasoning of a House of Lords decision when the actual case is overruled by statute? This problem was discussed in Thomson v. Moyse,"9a tax case. A previous decision of the House of Lords, I.R.C. v. Gordon,a2 had been quickly reversed by section 24, Finance Act, 1953, but was it possible to ignore the general reasoning? Lord Reid felt that the House of Lords had a greater power than lower courts to ignore the reason- ing: " The fact that the decisions are no longer valid in my view diminishes the authority of the rationes decidendi, but if I had been sitting in a lower court I would have hesitated before reaching the decision which I think I ought now to take." Lord Denning

emphatically that in those circumstances I.R.C. v.

21 For some of these implications see Wheatcroft: [1961] B.T.R. 81.

In Close v. Steel Co. of Wales Ltd.22 the House of Lords, when called upon to interpret section 14 (1) of the Factories Act, 1937, were confronted with a maze of seemingly confusing authority, but after detailed argument were content to follow two binding decisions of the House, Nicholls v. Austin 23 and Carroll v. Barclay.24

Lord Denning disagreed, and, in another dissenting judgment, was able to distinguish both cases so that he could proceed on the basis that there was no decision of the House of Lords on the point in question. However, since the other members of the court felt bound by the decisions, he continued:

I must express my emphatic dissent from your Lordships being bound by them. The doctrine that your Lordships are bound by a previous decision of your own is ... limited to the decision itself and to what is necessarily involved in it. It does not mean that you are bound by the various reasons

given in support of it, especially when they contain ' propositions wider than the case itself required.' In saying this, I am only repeating what Lord Selborne L.C. said in Caledonian Railway Co. v. Walker's Trustees 25 and Lord Halsbury L.C. in Quinn v. Leathem.2Y As Sir Frederick Pollock has well

said: ' Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons, but only

to the principles accepted and applied as necessary grounds of the decision.' "

Here Lord Denning attacked the doctrine of precedent through another weakness: how is the ratio decidendi of a case discovered ?

If a wide licence is to be given for enunciating the ratio decidendi of a case, the doctrine of precedent can be weakened in this way.

One of the most conservative and distinguished members of the House of Lords is Viscount Simonds. In Rahimtoola v. Nizam of

Hyderabad 27 Lord Denning's judgment reviewed certain questions and authorities relating to the conflict of laws which had not been mentioned by counsel, and suggested that the House of Lords was the one place where matters should be reconsidered on principle "without being tied to particular precedent of a period that is past." Viscount Simonds and Lords Reid and Cohen were careful to disassociate themselves from these remarks of Lord Denning, but apparently only because of the lack of argument on these matters. However, even Viscount Simonds has been prepared, recently, to differ from the words of Lord Macnaghten uttered 61 years earlier and followed ever since. In Public Trustee v. I.R.C.28 the House

of Lords in a very interesting and important judgment altered a fundamental principle of estate duty law. Their Lordships used the familiar argument that Lord Macnaghten's words in Earl Cowley v. I.R.C.29 were not necessary to his decision, and although

clusion that I can properly invite your Lordships to " [ignore Lord Macnaghten's words].

Two important points must be made about this statement. First, for Viscount Simonds to say that this case stands alone in his

experience is to fall into the very trap which Lord Halsbury L.C. in London Street Tramways v. L.C.C. pointed out: " It is totally impossible to disregard the whole current of authority upon this subject, and to suppose that what some people call an 'extra-

ordinary case,' an 'unusual case,' . . . is sufficient to justify the rehearing and rearguing before the final Court of Appeal of a question which has been already decided." 31 Secondly, to suggest that the principle of law laid down in the earlier case was unneces- sary to the decision, since the same result could be reached by another route, is to contradict his own famous and presumably binding pronouncement in Jacobs v. L.C.C.82 that there is " no justification for regarding as obiter dictum a reason given by a judge for his decision, because he has given another reason also." In spite of Viscount Simonds' professed worship of strict precedent, it is respectfully suggested that in this case he is attempting to evade the doctrine in order to reach a just result.

Although not directly relevant to the present question, the House of Lords in Qualcast (Wolverhampton) Ltd. v. Haynes Ss

recently emphasised that all courts, including the House of Lords, are not so tied to precedent as had been thought by some. Since the decline of juries in civil cases, particularly in negligence actions, the judges have included in their judgments findings of fact, and often give reasons for their findings, whereas juries gave no reasons. " It may sometimes be difficult to draw the line, but if the reasons given by a judge for arriving at the conclusion previously reached by a jury are to be treated as 'law' and citable, the precedent system will die of a surfeit of authorities."s, Thus, quite properly, the power of precedent has been weakened in this field.

D.SCRUTTONS LTD. V. MIDLAND SILICONES LTD.35

The cases mentioned previously shrink into the background as a result of the judgments in this case. The judicial technique employed by the court makes the case one of the most interesting for many years, and shows a startling somersault in the attitudes adopted by several of the judges. For the purposes of this article the substantive law will not be discussed, and the only analysis will be that of the judicial processes employed.

Briefly, the question in issue was whether it was possible for a person who is not a party to a contract to be able to benefit from

it legally.36 Here, the defendants, who had been negligent in unloading a ship, were trying to shelter under an exemption clause in a contract to which they were not a party. They were trying to establish a vicarious immunity. It was, of course, firmly laid

down in Dunlop v. Selfridge s7 that privity of contract, subject to certain exceptions, was of fundamental importance in our law of contract. However, in addition to the recognised exceptions to this principle, there was a decision of the House of Lords in Elder, Dempster & Co. Ltd. v. Paterson 38

of the defendants in this case.

All the members of the court

doctrine of privity of contract, except for Lord Denning, who had attacked the doctrine on several occasions. Thus the paradoxical situation arose whereby the whole court was anxious to avoid a

possible binding precedent except for Lord Denning, who was con- cerned to follow the binding precedent and so erode further the doctrine of privity of contract.

Before analysing the judgments in the House of Lords, it will be useful to examine the approach of the judges in the lower courts. At first instance 3 Diplock J. faced up to the Elder, Dempster case bravely. That case is celebrated as being one in which it is difficult to ascertain the true ratio decidendi, since all

the judgments proceeded on different grounds. Diplock J. expressed his view as to the ratio (or rationes) decidendi of each judge, and then proceeded to count heads on the various principles of law put forward. In this way, he discovered that only two of their Lordships subscribed to a theory of vicarious immunity, and so this was not the true ratio decidendi of the case. This was in

spite of a dictum of Scrutton L.J. in Mersey Shipping & Transport Co. Ltd. v. Rea 40 to the contrary. Thus the learned judge was able to reassert the doctrine of privity of contract by distinguishing Elder, Dempster, the common judicial technique. In the Court of Appeal 41 all three judges were prepared to accept several judicial

as [1962] 2 W.L.R. 186; [1962] 1 All E.R. 1.

38 This summary is, of course, an oversimplification of the issues. s7 [1915] A.C. 847.