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A v Hoare [2008] HL

Whole case here

^[Precedent use of Practice Statement]


D, known as the Lotto rapist (convicted of several sexual assaults,
including rape) attempted to rape V in 1989. He was given a life
sentence. At that time, he was not worth suing for damages. In 2004,
on day release from prison he bought a lottery ticket and won 7
million. So in 2005, V sued for personal injury, but the claim was
rejected by the High Court because her claim had been brought after
the six-year limit imposed by the Limitation Act 1980.
Held: A compensation claim against D could go to the High Court for
hearing.
The Limitation Act 1980 requires a claimant to bring an action against
her assailant for injury within 6 years.
However, Parliament could not have intended to exclude those who had
been intentionally injured. Otherwise anomalies would arise such as S v
W (child abuse: damages) [1995], in which it was held that a claimant
suing out of time was able to pursue a claim against her mother for
failing to protect her against sexual abuse by her father, but not a claim
against the father himself.
The lower courts considered themselves bound by Stubbings v
Webb [1993] HL in which it was held that the flexibility provided for
elsewhere in the Act did not apply to a case of deliberate assault,
including acts of indecent assault.
The claimant contended that Stubbings v Webb had been wrongly
decided and that the House should depart from it. She relied, inter alia,
on the Law Commission's report (Law Com No 270) which
recommended a uniform regime for personal injuries, whether the claim
was made in negligence or trespass to the person.
Courts had a discretion under s 33 of the Act to extend the time in the
claimants' favour.
Time ran from when the claimant knew of the injury, which was both a
subjective and objective test not whether the claimant considered it
serious enough to justify proceedings but whether she would
'reasonably' have done so. Once it had been ascertained what the
claimant knew and what she should be treated as having known, the
actual claimant dropped out of the picture.
Stubbings v Webb [1993] HL overruled; Letang v
Cooper [1964] approved.
KR v Bryn Alyn Community (Holdings) Ltd (in liq) [2003] All ER
(D) 101 (Jun) disapproved.
Claimant won
Also here

Addie v Dumbreck
[1929] HL

Whole case

[Precedent - overruling by HoL - ratio refined - first use of


Practice Statement 1966 negligence duty to trespasser]
D the owner of a colliery where Cs 4 year-old son had been killed when
he was playing on the wheel pit at a Colliery. The accident happened in
a field about a hundred yards from a public road. "Trespassers will be
prosecuted" notices were habitually ignored by adults and children.
Held: Lord Hailsham LC:
Towards the trespasser the occupier has no duty to take reasonable
care for his protection or even to protect him from concealed danger.
C Lost
Overruled, or refined by British Railways v Herrington [1972] HL

Adomako, R v (1994)
HL

[Precedent overruling by HoL]


Rare use in criminal cases on the law of gross negligence
manslaughter. Overruled R v Seymour (1983)

Airedale NHS Trust v


Bland [1993] HL

[Precedent - example of judicial law making]


Tony Bland seriously injured in the Hillsborough disaster, was being
kept alive only by extensive medical care (not a life-support machine).
He had survived for three years in persistent vegetative state (PVS). He
continued to breathe normally, but was kept alive only by being fed
through tubes. He had no chance of recovery; his doctors (with the
support of his family) sought a declaration from the court that it would
be lawful for them to discontinue treatment so that he might die
peacefully.
Held: Treatment could properly be withdrawn in such circumstances,
because the best interests of the patient did not involve him being kept
alive at all costs.
Lord Browne-Wilkinson;
The judges' function in this area of the law should be to apply the
principles which society, through the democratic process, adopts, not to
impose their standards on society. If Parliament fails to act, then judgemade law will of necessity through a gradual and uncertain process
provide a legal answer to each new question as it arises. But in my
judgment that is not the best way to proceed. The function of the court
in these circumstances is to determine this particular case in
accordance with the existing law, and not seek to develop new law
laying down a new regimen it is for Parliament to address the wider
problems which the case raises and lay down principles of law
generally applicable to the withdrawal of life support systems.
Lord Browne-Wilkinson and Lord Mustill;
It is imperative that the moral, social and legal issues of the present
case should be considered by Parliament
In this case feeding him was treatment and that treatment would not
cure him and therefore was not in his best interests.

It was lawful for D's doctors to stop feeding him artificially.


See also Frenchay Healthcare NHS Trust v S [1994] CA. Similar issues
can arise in respect of the very elderly or in respect of babies born with
very severe mental or physical handicaps, especially where major (and
possibly repeated) surgery would be needed to keep them alive see Re
J [1991].
It was lawful for D's doctors to stop feeding him artificially. The
court had no option but to make a decision one way or the
other.
Also here
Anderton v Ryan
[1985] HL

^[Precedent - overruling law incorrectly applied]


The previous court did not correctly apply the law. So this case
overruled by R v Shivpuri [1986] concerning theCriminal Attempts
Act 1981

British Railways v
Herrington [1972] HL

^[Precedent HoL - examples of departing]


First major use of Practice Statement. C a 6 year-old boy, was burned
on an electric rail. The railway was separated from a play area by a
fence that was broken. The stationmaster knew the fence was in poor
condition, and knew children often trespassed, but took no steps to
correct this.

Whole case here

Held: Applying Lord Atkins neighbour principle; the occupier might


not owe to the trespasser a common duty of care, but did have a duty
to treat him with ordinary humanity.
Overruled/Departed: Addie v Dumbreck [1929] which held that an
occupier of premises had no duty of care to a trespasser and it was the
responsibility of the parents to protect their children.
"Departed" rather than "overruled" because the House would have
decided Herrington the way it did regardless of the 1966 Practice
Statement, they would have distinguished the previous case.
In Addie, an occupier of premises was only liable to a trespassing child
who was injured by the occupier intentionally or recklessly.
In Herrington, they propounded the test of 'common humanity, which
involves an investigation of whether the occupier has done all that a
humane person would have done to protect the safety of the trespasser.
Parliament had passed the Occupiers Liability Act 1957. The lords
were unanimous in deciding that there could be liability to a trespasser.
Unfortunately five judges reached that decision in different ways and
the matter was referred to the Law Commission, and eventually the
passing of the Occupiers Liability Act 1984 that now governs the
position of trespassers and certain other non-visitors.
C won

C (a minor) v DPP
[1995] HL

[Precedent binding nature of Divisional Court - Judicial


creativity judicial cowardice]
A 12-year-old boy A was charged with interfering with a motor cycle.
Held: The presumption of 10-14 doli incapax (mischievous discretion)
was ultimately abolished by the Crime and Disorder Act 1998.
Mann LJ said it was clear on authority that the Divisional Court had
power to depart from its own previous decisions. The House of Lords did
not expressly consider whether or not the Divisional Court was bound
by its own decisions in appellate cases.
Lord Lowry gave the following guidelines for judicial law-making:
1. judges should beware of imposing a remedy where the solution
to a problem is doubtful;
2. they should be cautious about making changes if Parliament has
rejected opportunities of dealing with a known problem or has
legislated while leaving the problem untouched;
3. they are more suited to dealing with purely legal problems than
disputed matters of social policy;
fundamental legal doctrines should not lightly be set aside; and
4. judges should not change the law unless they can achieve
finality and certainty.

Caparo v
Dickman [1990] HL

^[Precedent persuasive precedent]


D auditors of company accounts. C, Caparo bought shares and then
discovered that the accounts did not show the company had been
making a loss. C alleged that in negligence a duty was owed to Caparo.
Held: Approving a dictum of Brennan J in the High Court of Australia
in Sutherland Shire Council v Heyman(1985), that the law should
preferably develop novel categories of negligence incrementally and by
analogy with established categories, rather than by a massive extension
of a prima facie duty of care restrained only by indefinable
"considerations which ought to negative or limit the scope of the duty or
the class of person to whom it is owed".
No duty was owed in those two situations.
Steps to establish duty of care are;
a) Is there an existing case, which would hold there to be a duty of
care? If not then ask three questions.
1. Was loss to the claimant foreseeable?
2. Was there sufficient proximity between the parties?
3. Is it fair, just and reasonable to impose a duty of care?
Auditors won

Cassell v Broome
[1971] HL

[Precedent obligation to follow status of per incuriam]


C appealed against the way exemplary damages had been assessed in a
libel case. The case concerned a book about a naval disaster.
The Court of Appeal believed that a decision of House of Lords

in Rookes v Barnard [1964], had been made per incuriam and so they
disregarded it.
Held: Lord Hailsham
Decisions of the House of Lords are binding on the Court of Appeal and
it is not open to that court to advise judges to ignore decisions of the
House on the ground that they were decided per incuriam or are
unworkable Furthermore (per Lord Hailsham of St Marylebone LC and
Lord Diplock) although it is open to an appellate court to decline to
follow one of its own previous decisions on the ground that it was
decided per incuriam, the Court of Appeal is not entitled to disregard a
decision of the House of Lords, nor is a judge of the High Court entitled
to disregard a decision of the Court of Appeal, on that ground.
Central Asbestos v
Dodd (and
Smith) (1973) HL

^[Precedent finding the ratio]


C was informed by his works manager that he could not bring an action
for damages against his employer for his contraction of asbestosis.
Held: It was reasonable for the claimant to accept the wrong advice of
the works manager even though it was obvious that the works manager
had no real competence to give the advice.
There was a division of opinion amongst the law Lords. A majority
allowed the claimant an extension of the limitation period but a different
majority rejected the claimants reasoning. This not only perpetuated
what was, apparently, a judicial misinterpretation of parliamentary
meaning but must also have at least contributed to the prompt
intervention of Parliament by the Limitation Act 1975; it is impossible to
compute the cost to the public.
Lord Reid: of the 1963 Act said it had,
A strong claim to the distinction of being the worst drafted Act on the
statute book.

Clegg, R v [1995] HL

[Precedent guidelines on judicial law making]


D fired several shots at a car whilst he was on check point duty
in Northern Ireland. The car was approaching the checkpoint at speed
and did not appear to be going to stop. One of the passengers was
killed. Clegg was charged and convicted of murder.
It was argued that the House should make new law by creating a new
qualified defence - available to a soldier or police officer acting in the
course of his duty - of using excessive force in self-defence, or to
prevent crime, or to effect a lawful arrest. By doing so it would reduce
murder in such cases to manslaughter.
Held: Lord Lloyd, whilst not averse to judicial law-making - citing R v
R (1991) as a good example of it said that he had no doubt that they
should abstain from law-making in the instant case since the reduction
of murder to manslaughter was essentially a matter for Parliament, and
not the courts.

Conway v Rimmer
[1968] HL

[Precedent HoL - examples of departing]


First example of HoL using Practice Statement. An ex-police officer sued
for wrongful prosecution and sought disclosure of some police files. The
Home Secretary claimed public interest immunity for all such files.
Held: The Home Secretary's certificate was not conclusive, and it was
up to the court to examine the documents and order disclosure if the
public interest in the administration of justice outweighed the public
interest in confidentiality. The decision in Duncan v Cammell Laird
[1942] should not be followed.
The House of Lords simply distinguished the Conway case from
the Duncan case on the facts, rather than explicitly overruling it.
Lord Morris was willing to "depart" from Duncan on two grounds:
1. It was based on a misapprehension of the law enforced at the time.
2. Lower courts obliged to follow the Duncan decision have expressed
regrets in having to do so.
Lord Pierce on a third:
3. There has been a great change in circumstances since 1942. There is
a greater proliferation of administrative tribunals, giving the Crown
greater scope to invoke privilege against the interest of litigants.

Davis v Johnson [1978]


HL

[Precedent early attempts to depart for other reasons]


C was excluded from his home, by a County Court order, after seriously
assaulting his partner several times. Cs occupation was as a joint
tenant, which means the same rights to occupy as his partner.
Held: The House of Lords dismissed C's appeal, from the decision of
the CoA. Reaffirming the rule in Young. The position of the Court of
Appeal as an intermediate appellate court, with increasing membership
and a number of divisions and the consequent need for legal certainty,
the rule that (subject to clearly defined exceptions) the Court of Appeal
is bound should be reaffirmed unequivocally.
The CofA consisting of a full Court of five judges including the Master of
the Rolls and the President overruled a previous Court of Appeal
decision which would have allowed him to stay.
Lord Denning MR attempted modified constraints of Young to allow the
Court to depart from an earlier decision if convinced that it is wrong. By
saying that the Court of Appeal is bound by its own previous decisions
is a rule of practice, not of law. The House of Lords did not accept this.
Appeal dismissed.
Since this case there has been no further challenge to the principles
of Young v Bristol Aeroplane.

Donoghue v Stevenson
[1932] HL

[Precedent ratio and obiter]


It was material that the claimant had been injured because D had
manufactured the ginger beer and bottled it in opaque glass and it
contained a dead snail.

It was not material who had bought the ginger beer. Or who poured it
into the tumbler.
Whole case here
It was not material that there was no contractual relationship between
C and D.
Lord Atkin made it clear that the ratio was not to be limited to cases
involving snails in ginger-beer bottles.
[A] manufacturer of products, which he sells in such a form as to show
that he intends them to reach the ultimate consumer in the form in
which they left him with no reasonable possibility of intermediate
examination, and with the knowledge that the absence of reasonable
care in the preparation or putting up of the products will result in an
injury to the consumer's life or property, owes a duty to the consumer
to take that reasonable care.
However, courts have extended the ratio of Donoghue v Stevenson to
include allsorts of items purchased by consumers. As they have
extended category of persons who are potentially liable.
Fitzleet Estates v
Cherry [1977] HL

[Precedent - reasons for departing]


The House was asked to overrule an earlier case (1966) narrowly
decided on a point of interpretation of theIncome Tax Act. The House
in Cherry said very plainly that you must argue something more than
simply the wrongness of the earlier decision. Even if the House agrees
that it was wrongly decided, once decided they will stick to it unless you
can argue something more, like material change in circumstances.
The Cherry case reiterates the reasoning in Jones and Knuller. Lord
Wilberforce stated in Cherry:
My Lords, two points are clear: Although Mr. Bates Q.C. for the
appellant company developed his argument with freshness and vigour,
it became clear that there was no contention advanced or which could
be advanced by him which was not before this House in 1965. [which]
for reasons then thought good, [was] by the majority rejected. The
desperate argument of "per incuriam" is certainly not available here.
There has been no change of circumstance such as some of their
Lordships found to exist in the case ofMiliangos v George Frank
(Textiles) Ltd [1976] such as would call for or justify a review of the
1965 decision. The fact, if it be so, that the 1965 decision works hardly
upon property companies is not such a change of circumstance.
My Lords, in my firm opinion, the Practice Statement of 1966 was
never intended to allow and should not be considered to allow such a
course. Nothing could be more undesirable, in fact, than to permit
litigants, after a decision has been given by this House with all
appearance of finality, to return to this. House in the hope that a
differently constituted committee might be persuaded to take the view,
which its predecessors rejected.

Hall v Simons (2000)


HL

[Precedent HoL - examples of departing - significance of


obiter]

This case was part of three conjoined appeals heard at the same time
because they involved the same point of law, namely immunity from
suit by solicitors and barristers.
The case involved negligent advice.
Held: It is arguable that most of this judgment is obiter, since none of
the solicitors in the instant cases were acting as advocates as such at
the time of the acts or omissions complained of. But this is a purely
technical point: the removal of immunity (even by a bare 4-3 majority
in relation to criminal cases) is a clear decision of a strong House and
will almost certainly be applied in all future cases. By a 7 man
court Rondel v Worsley had not been wrongly decided in its time, but
the world was different then. The courts now can strike out claims
which have no real chance of success.
This is also the case where an action appears to be an abuse of the
legal process. This includes those which attempt to re litigate the first
case.
Lawyers not the only professionals who have to balance their duty to an
individual client and a code of ethics.
It is essential to the proper administration of justice that barristers
should be prepared to defend even the most unsavoury characters, who
might well wish their lawyers to use all possible means, ethical or not,
to secure their acquittal. These characters may wish to sue if they are
acquitted on appeal.
Rondel v Worsley [1967] and Saif Ali v Sydney Mitchell &
Co. [1980] overruled.
Lord Hoffman:
I do not say that Rondel v Worsley [1969]was wrongly decided at
the time. The world was different then. But, as Lord Reid said then,
public policy is not immutable..
Immunity from suit removed
Howe, R v [1987] HL

[Precedent HoL - examples of departing significance of


obiter]
D took part with others in two separate murders, and on a third
occasion the intended victim escaped. D's claim to have acted under
duress was left to the jury on two of the three counts, but D was
convicted on all three.
Held: Using the Practice Statement, departed from its decision
in Lynch v DPP for Northern Ireland [1975] to say that no
participant (whether principal or accessory) can claim duress in defence
to a murder charge.
In Lynch, the House of Lords had held that duress was available as a
defence to a person who had participated in a murder as an aider and
abettor. Not to do so would produce the illogical result that, whilst
duress is a complete defence to all crimes less serious than murder, it is
not even a partial defence to a charge of murder itself.

In R v Gotts [1992] obiter in Howe was extended by holding that duress


is not a defence to attempted murder.
Lord Griffiths said:
We face a rising tide of violence and terrorism against which the law
must stand firm recognising that its highest duty is to protect the
freedom and lives of those that live under it. The sanctity of human life
lies at the root of this ideal and I would do nothing to undermine it, be
it ever so slight.
The prime factor in favour of overruling was that the cases were simply
wrong as a matter of morality. The earlier cases had carved out a
duress defence for certain secondary parties and now the Lords
basically disagreed as a matter of morality with what had been done.
Howe was decided in the context of increased experience with and fear
of IRA terrorism and that cannot be overlooked. A secondary reason for
the overruling is connected with theShivpuri factor that the exceptions
carved out in the earlier cases lead to uncertainty in their application.
Hunter and others v
Canary Wharf Ltd;
Hunter and others v
London Docklands
Development Corp
[1997] HL

[Precedent example of creating precedent by use of similar


principle]
D erected a tall building which interfered with Cs television
reception. This was thought to be the Tort of Nuisance. The building
had been granted special planning permission in designated enterprise
zone. The court was asked to decide whether occupation of property
was a sufficient link that entitled an occupier to sue in private
nuisance.
Held: only a person with an interest in the land could sue; and there
was no good reason to depart from the law as so established, an owner
was entitled to build on his land as he wished, subject to planning
control.
D won

James and Karimi, R v


[2006] CA

Whole case, here

^[Precedent - exception - Court of Appeal to follow PC in certain


circumstances]
D and D were convicted at separate trials of murder and their cases
were referred to the CofA by the CCRC. Jersey v Holley was relevant to
both cases.
Held: Where there is a decision by a nine member Board of the Judicial
Committee of the Privy Council the Court of Appeal was bound to prefer
the decision of the Privy Council to a decision of the House of Lords.
This was not to be taken as a licence to decline to follow a decision of
the House of Lords in any other circumstances.
Both guilty, appeals dismissed
Also here

James
v Eastleigh Borough
Council [1990] HL

[Precedent binding nature]


D local council ran swimming baths. C, Mr James had to pay 60p for a
swim while his wife went in for free because she had reached the
pensionable age of 60. Mr James, supported by the Equal Opportunities
Commission, brought a claim of direct sex discrimination.
Held: Lord Bridge:
The phrase 'pensionable age' means: .. a man, the age of 65 and
a woman, the age of 60.' the practice of denying to men between the
ages of 60 and 65 benefits which are offered to women between those
ages is unlawful unless it is authorised by other express statutory
provisions.
C won

Jobling v Associated
Dairies Ltd. [1981] HL

^[Precedent HoL - doubted and did not follow its own earlier
decision]
D the employer of a workman who suffered a slipped disc through their
negligence. His earning capacity was reduced by half. Four years later,
he was found to have a pre-existing spinal disease unrelated to his
accident. When the case came to trial, he was totally incapable of work.
Held: Doubting and not following their own earlier decision in Baker
v Willoughby [1970]. The employer was liable for only four years'
loss of earnings, this being a rare case in which the "eggshell skull" rule
operated to the benefit of the defendant. The onset of this illness was
"one of the vicissitudes of life relevant to the assessment of damages".

Jones v Secretary of
State for Social
Services [1972] HL

^[Precedent HoL - Power to overrule previous decisions to be


used sparingly - decisions on construction of statute not
normally to be reconsidered]
Before a 7 man house. Conjoined appeals by two fitters who injured
themselves lifting heavy equipment. Both then suffered heart
problems. They were refused disablement benefit by a Commissioner
on the grounds that the heart disease was not connected to the
accident. Benefit was regulated by s.7(1) of the National Insurance
(Industrial Injuries) Act 1946. C argued that Re Dowling
[1967] on the same matter was wrong and should be overruled.
Held: Quashing the Commissioners' decision but declining to overrule
the decision in Dowling, even though four members of the House
thought it was wrong.
Lord Reid:
The old view was that any departure from rigid adherence to
precedent would weaken that certainty. I did not and do not accept that
view. It is notorious that where an existing decision is disapproved but
cannot be overruled courts tend to distinguish it on inadequate
grounds. I do not think that they act wrongly in so doing; they are
adopting the less bad of the only alternatives open to them.

the Practice Statement which should be applied sparingly and


should only rarely be invoked in cases of the construction of statutes or
other documents.
Khawaja v Secretary of
State for the Home
Department [1984] HL

^[Precedent - the liberty of a person]


C, and another, appealed against judicial review of an immigration
officer's order.
Held: Overruling a line of cases, including its own decision
in Zamir (l980), adding "loss of liberty", as a ground for departing or
overruling.
Lord Scarman:
My Lords, in most cases I would defer to a recent decision of your
Lordships' House on a question of construction, even if I thought it
wrong. I do not do so in this context because for reasons which I shall
develop I am convinced that the Zamir reasoning gave insufficient
weight to the important (I would say fundamental) consideration that
we are here concerned with, the scope of judicial review of a power
which inevitably infringes the liberty of those subjected to it.
The citizen needs protection from decisions of civil servants. The law
cannot extend to interference with liberty unless Parliament had
unequivocally enacted that it should.
Lord Scarman:
The House will depart whenadherence to the precedent would
involve the risk of injustice and obstruct the proper development of the
law, but also that a judicial departure by the House from the precedent
is the safe and appropriate way of remedying the injustice and
developing the law.

Kleinwort Benson Ltd v


Lincoln City
Council (1998) HL

[Precedent - retrospective change to the law judges clarify


the law]
Kleinwort Benson entered into swap arrangements with local authorities
keen to maximize their investments. A swap arrangement is a form of
gamble, or hedge against interest rate changes. Both parties made a
mistake about the law of contract.
Held: Judge-made decisions have retrospective effect, in relation not
only to the parties to the litigation but also to anyone else the facts of
whose case arose before the new decision.
Lord Goff:
Occasionally, a judicial development of the law will be of a more
radical nature, constituting a departure, even a major departure, from
what has previously been considered to be established principle, and
leading to a realignment of subsidiary principles within that branch of
the law. . . It is into this category that the present case falls; but it
must nevertheless be seen as a development of the law, and treated as
such.

when the judges state what the law is, their decisions do, in the
sense I have described, have a retrospective effect.
I must confess that I cannot imagine how a common law system, or
indeed any legal system, can operate otherwise if the law is be applied
equally to all and yet be capable of organic change.
Knuller v DPP [1973]
HL

[Precedent HoL - examples of refusing to depart or overrule]


D published a gay contact magazine thereby conspiring to corrupt public
morals.
Held: In Shaw (1962) the House of Lords held that the common law
crime of "conspiracy to corrupt public morals existed despite many
commentators believing that it did not exist; effectively the HoL created
it.
Lord Reid had dissented in Shaw, and still believed it to be wrong, but it
did not follow that it should now be reconsidered.
Lord Reid stated:
I dissented in Shaw's case. On reconsideration I still think that the
decision was wrong and I see no reason to alter anything which I said
in my speech. But it does not follow that I should now support a motion
to reconsider the decision. I have said more than once in recent cases
that our change of practice in no longer regarding previous decisions of
this House as absolutely binding does not mean that whenever we think
that a previous decision was wrong we should reverse it. In the general
interest of certainty in the law we must be sure that there is some very
good reason before we so act.
Guilty

London Tramways Co
v LondonCounty Counci
l [1898] HL

^[Precedent binding nature of HoL prior to 1966 - certainty of


the law more important than individual hardship]
This case concerned the price the LCC should pay for parts of the
tramways.
Held:
Lord Halsbury, L.C., stated:
I am prepared to say that I adhere in terms to what has been said
[by other Law Lords] that a decision of this House once given upon a
point of law is conclusive upon this House afterwards, and that it is
impossible to raise that question again as if it [had never been decided]
and could be reargued, and so the House be asked to reverse its own
decision. That is a principle which has been, I believe, without any real
decision to the contrary, established now for some centuries, and I am
therefore of opinion that in this case it is not competent for us to rehear
and for counsel to reargue a question which has been recently
decided.

McLaughlin v O'Brian
[1982] HL

[Precedent principle v- policy]


C visited her family in hospital an hour after a road traffic accident. She

suffered psychiatric illness from the shock of seeing one daughter dead
and her husband and two other children seriously injured.
Held: Principle not policy keeps the common law flexible and
consistent.
Miliangos v George
Frank Ltd [1975] HL

[Precedent overruling law incorrectly applied, or rule of law


no longer desirable]
The rule in Re United Railways [1961] HL that required damages to
be awarded in sterling was no longer desirable and was overruled.
Thereby allowing damages to be awarded in the currency of the country
specified in the contract. This change was needed because of changes
in foreign exchange conditions, and the instability of sterling, since
United Railways.

Mills v HM Advocate
and another (2002) PC

^[Precedent influence of ECHR]


C sought to have his conviction set aside because of the unreasonable
length of hearing his appeal. There had been a breach of human rights
(article 6(1) of the Convention for the Protection of Human
Rights and Fundamental Freedoms).
He relied on Darmalingum v The State [2000] which would quash
the conviction. He invited the Board to depart from the decision
in Flowers v The Queen [2000] in so far as it was not compatible
with the authority of the European Court of Human Rights and the
decision in Darmalingum's case.
Held: No weight should be attached to either of those decisions in the
present context. Flowers case was not in the public
interest. Darmalingum's case went too far. There was no precedent
in domestic law for the remedy sought. Jurisprudence of the European
Court of Human Rights did not conflict with this finding.
Sentence reduced by nine months

Murphy
v Brentwood DC [1990]
HL

[Precedent HoL - examples of departing]


D the local authority negligently approved building plans for a house
with inadequate foundations C the purchaser of a house which
developed serious cracks.
Held: A seven-man House departed from the decision in Anns
v Merton BC [1977] saying that the Council owed no duty of care to
the purchaser.
Lord Keith:
There can be no doubt that to depart from the decision would reestablish a degree of certainty in this field of law which it has done a
remarkable amount to upset.
This is often referred to as The Retreat from Anns

Newsome, R v [1970]

[Precedent criminal division does not apply stare decisis as

HL

rigidly as civil division liberty of the subject an addition to


Young]
D remarried in the honest, but mistaken belief that his first marriage
had been dissolved.
Held: In R v Taylor [1950] the Court of Appeal held that in 'questions
involving the liberty of the subject' if a full court considered that 'the
law has either been misapplied or misunderstood' then it must
reconsider the earlier decision. This rule was followed also in R v
Gould [1968]
Not guilty

Oldendorff v Tradax
Export [1974] HL

(The Johanna
Oldendorff, E L
Oldendorff & Co GmbH
v Tradax Export SA
[1974] HL)

^[Precedent departing from an uncertain rule]


The ship Oldendorff arrived at Liverpool to unload grain. She was
required by the port authorities to wait within the legal limits of the port
but 17 miles from the docks for a berth to become available.
The question was when could a ship be said to be "in port", upon which
the contract (charterparty) in this case hinged.
Held: The ship was in port when she was "an arrived ship" for purposes
of charterparty liability.
An earlier precedent - The Aello (overruled) had incorrectly
interpreted Leonis Steamship Co Ltd v Rank Ltd (1908), and it had
been wrongly decided. The old rule was so vague that it caused
commercial uncertainty, and so they formulated a new, more certain
rule.
She had arrived

Pepper (Inspector of
Taxes) v Hart [1993]
HL

[Precedent recent examples of judicial law making]


D a schoolteacher benefited from reduced fees for his children. The rate
of tax payable on these fees was to be found in Parliamentary
discussions recorded in Hansard. C was the inspector of taxes.
Held: Allowing the use of Hansard as an extrinsic aid to the
interpretation of statutes (subject to certain conditions). Using
the Practice Statement the HoL departed from its own decisions
in Davis v Johnson [1979] and two other decisions.

Practice Statement
(Judicial Precedent)
[1966] HL

^Lord Gardiner LC:


Their Lordships regard the use of precedent as an indispensable
foundation upon which to decide what is the law and its application to
individual cases. It provides at least some degree of certainty upon
which individuals can rely in the conduct of their affairs, as well as a
basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to
precedent may lead to injustice in a particular case and also unduly
restrict the proper development of the law. They propose, therefore, to
modify their present practice and, while treating former decisions of

this House as normally binding, to depart from a previous decision


when it appears right to do so.
In this connection they will bear in mind the danger of disturbing
retrospectively the basis on which contracts, settlements of property
and fiscal arrangements have been entered into and also the especial
need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent
elsewhere than in this House.
R v Governor Brockhill
Prison ex p Evans
(2000) HL

[Precedent retrospective overruling]


C had been detained about 2 months longer than he should have been
because the governor had calculated his release date on a Home Office
formula that had been approved by the Divisional Court.
Held: The Divisional Court had declared what the law always had been.
The governor had relied on the law as he believed it to be, but it was
now clear that those responsible for his detention had been wrong.
Compensation awarded

R v R (rape - marital
exemption)[1991] HL

[Precedent retrospective overruling]


D living apart from his wife raped her in her parents home, which he
had forcibly entered.
Held: Abolishing a husband's 250 year old immunity from criminal
liability for raping his wife The long-standing rule that a wife was
deemed to have given her consent irrevocably was no longer
appropriate.
Lord Keith:
"This is not the creation of a new offence, it is the removal of a
common law fiction which has become anachronistic and offensive and
we consider that it is our duty having reached that conclusion to act
upon it"
Lord Keith thought this was an example of the common law evolving in
the light of changing social, economic and cultural developments.
Guilty
Also here

Roberts Petroleum Ltd


v Kenny Ltd. [1983] HL

[Precedent use of reports]


Held: Stating per curiam that the House should not allow transcripts of
unreported judgments of the Court of Appeal to be cited in appeals to
the House unless leave was given. The transcript must contain a
statement of a relevant principle of law which was binding on the Court
of Appeal and of which the substance was not be found in a recognised
law report.

Criticised in Michaels & another v Taylor Woodrow Developments


Ltd & ors Chancery Division (2000)
Rogers v Essex CC
[1985] DC, HL

[Precedent binding nature of Divisional Court]


C the parent of a 13 year old girl required to walk an unreasonable
route to school. C appealed against his conviction for failing to send his
child to school, claiming the justices had misdirected themselves as to
what constituted a "reasonable route" for the child to walk.
Held: The Divisional Court allowed Cs appeal and quashed the
conviction and held that the court was prima facie bound by its own
decisions when sitting in its appellate capacity.
In the House of Lords the appeal of the LA was allowed reversing the
decision of the Divisional Court.

Rookes v Barnard
[1964] HL

[Precedent use of precedent to extend the law in another


field]
A claim against members of a union for damages as a result of the
union urging its members to threaten withdrawal of services from the
claimant's employer if he were not removed from his position.
Held: C was entitled to recover damages as he had established against
the members of the union a good cause of action at common law for the
tort of intimidation which was not defeated by the Trade Disputes
Act, 1906.
No doubt many of the old cases in which a [claimant] has been held
entitled to recover damages from a defendant who has intimidated a
third party can be explained on the ground of nuisance, or some other
recognized tort, but some cannotand I agree with your Lordships
that the existence of this tort is established by authority.

Seymour, R v [1983]
HL

[Precedent significance of obiter test of recklessness]


D a lorry driver collided with another car. When the driver of the car (V)
got out of the car D drove his lorry into the car and V was crushed
between the two vehicles. V was killed.
Held: The appropriate direction to the jury in a manslaughter case
where death was caused by reckless driving was Lord Diplock's dicta
in Lawrence.
Lord Roskill (obiter) :
[there is]a need to prescribe a single and simple meaning of the
adjective "reckless" and the adverb "recklessly throughout criminal law
unless Parliament has otherwise ordained in particular case. That
simple and single meaning should be the ordinary meaning of those
words as stated in this House in R vCaldwell and in R v Lawrence.
Guilty of death by reckless driving

Shaw v DPP [1961] HL

[Precedent policy and doubtful precedents]


D conspired to corrupt public morals by publishing a booklet containing

details prostitutes, and their services. This was hitherto an unused


common law offence.
Held; Lord Tucker cited precedents for the offence.
Viscount Simonds;
In the sphere of criminal law, I entertain no doubt that there remains
in the courts of law a residual power to enforce the supreme and
fundamental purpose of the law, to conserve not only the safety and
order but also the moral welfare of the state, and that it is their duty to
guard it against attacks which may be the more insidious because they
are novel and unprepared for.
Lord Reid (dissenting) said there were widely differing opinions as to
how far the law should punish immoral acts done in private,
Some think that the law already goes too far, some that it does not
go far enough. Parliament is the proper place, and I am firmly of
opinion the only proper place, to settle that.
Guilty
Shivpuri, R v [1986] HL

[Precedent overruling law correctly applied, or rule of law no


longer desirable]
First time Practice Statement used in a criminal case. D was arrested
entering the country, carrying a package which he believed contained
either heroin or cannabis, but was in fact harmless ground dried
vegetable. D was charged with attempting avoid import restrictions;
smuggling.
Held: Accepting that previous law had been incorrectly applied,
concerning the Criminal Attempts Act 1981.
And acknowledging widespread criticism - that the previous case had
created a distinction that the court now considered to be confusing and
incapable of sensible application - of its decision in Anderton v Ryan
[1985](barely a year old) (given after the Court of Appeal had decided
Shivpuri) HoL applied the Practice Statement to depart from that
decision.
Dismissing the recentness of the decision to be overruled as a factor
weighing in favour of not overruling it, LordBridge said,
"If a serious error embodied in a decision of this House has distorted
the law, the sooner it is corrected the better.
Lord Bridge wrote the main opinion in Shivpuri and had also written one
of the two main opinions in Anderton. The concern that as the court
changes in membership, issues previously dealt with will now be
reargued, overruled seem to be minimized.

Smith, R v (Morgan)
[1998] CA

[Precedent additional reasons CofA will depart - where it has


been disapproved by the Privy Council]
Morgan Smith in 1996 killed a former flatmate, James V, after they
became embroiled in a fight over stolen tools.
His defences were that he did not intend to kill or cause grievous bodily
harm; that he was suffering from diminished responsibility; and that he

was provoked.
The focus of the appeal was on the objective part of the test for
provocation and whether the reasonable person could be given certain
characteristics of the accused, in this case the characteristic of having a
severe depressive illness.
Held: The Court declined to follow the opinion in Luc Thiet Thuan v R
[1996] PC.
Privy Council opinion are only persuasive - and preferred its own
decisions - which it considered binding.
Guilty of manslaughter
Note this case went to the Lords and was later effectively
overruled by Jersey v Holley [2005] PC
Southwark London
Borough Council v Mills
(1999) HL

[Precedent - retrospective change to the law judges are said


to be clarifying the law]
D local authorities. C were tenants of Southwark and Camden councils.
They both complained of being able to hear all the sounds made by
their neighbours because the flats had no sound insulation. It was not a
question of the neighbours being unreasonably noisy.
Held; As an ordinary use of residential premises without more was not
capable of amounting to a nuisance, and a landlord could not be held
liable in tort where he had not authorised the commission of an
actionable nuisance, or for authorising his tenant to do something that
would not be actionable if he did it himself, the appellants could not
invoke the tort of nuisance.
To extend the tort of nuisance would have major implications for all
councils spending vast amounts on sound insulation.
Lord Hoffman:
I think that in a field such as housing law, which is very much a matter
for the allocation of resources in accordance with democratically
determined priorities, the development of the common law should not
get out of step with legislative policy.
Lord Millett
These cases raise issues of priority in the allocation of resources. Such
issues must be resolved by the democratic process, national and local.
The judges are not equipped to resolve them. All that we can do is to
say that there is nothing in the relevant tenancy agreements or current
legislation, or in the common law, which would enable the tenants to
obtain redress through the Courts.
House of Lords is usually careful not to overstep its
constitutional role.
C lost

Vestey v
Commissioners of
Inland Revenue [1979]
HL

^[Precedent HoL departing and overruling]


This case involved the interpretation of taxation law involving private
trusts.
Held: Overruling Congreve v Commissioners of Inland
Revenue [1948] HL. Lord Edmund-Davies
We can now see the startling and unacceptable consequences of
Congreve when applied to circumstances never contemplated when that
case was being considered.
Departing should be exercised sparingly, particularly in relation to
questions of the construction of statutes. But if the circumstances of a
particular case are of a different character, departing is allowed.

White v Jones [1995]


HL

[Precedent - finding the ratio - a good example of the modern


"incremental" approach]
D a solicitor was asked to prepare a will, but negligently failed to do so
before the testator died. Two claimants who should have received
legacies under the will sued D in negligence.
Held: On the question of whether the solicitor D owed the beneficiaries
a duty of care, there was no clear precedent. The majority of the House
agreed that the beneficiaries should succeed.
D lost