Precedent IN THE Court OF Appeal Professor SIR Rupert Cross distinguishes three fundamental PDF

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PRECEDENT IN THE COURT OF APPEAL PROFESSOR SIR RUPERT CROSSdistinguishes three fundamental " rules of precedent" in English law.These are:Rule 1: "all courts must consider the relevant case law ";Rule 2: "lower courts must follow the decisions of courts above them in the hierarchy "; andRule 3: "app...

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PRECEDENT IN THE COURT OF APPEAL PROFESSOR SIR RUPERT CROSS distinguishes three fundamental " rules of precedent" in English law. These are: Rule 1: "all courts must consider the relevant case law "; Rule 2: "lower courts must follow the decisions of courts above them in the hierarchy "; and Rule 3: "appellate courts are generally bound by their own decisions." 1 Recent litigation over the interpretation of the Domestic Violence and Matrimonial Proceedings Act 1976, in the decisions in Davis v. Johnson,2 has highlighted a conflict of views among some judges in the Court of Appeal and House of Lords about the applicability of rule 3 in the Court of Appeal. It is suggested that this conflict can only properly be understood if an examination is made of the nature of the rules, and the scope of their effect. This paper sets out to provide a basis for discussion, and, further, to suggest some possible solutions to the problems arising.

RULE ONE AND THE COURT OF APPEAL The Court of Appeal, like any other court in the English legal system, has an obligation to consider any relevant previous decisions, particularly of the House of Lords, Court of Appeal and High Court, when reaching a decision in any new case, especially a hard case when there exists no covering statutory provision, or case law provision of the House of Lords.3 The obligation to consider in an easy case is subsumed by the obligation to apply/follow. We shall see in section II that rule 2 binds the Court of Appeal to apply a covering House of Lords provision. A "rule" similar to rule 2 binds the Court to apply statutory provisions as the primary source of law. In a case clearly covered by a statutory provision there are no relevant decisions (except possibly on interpretation), and in a case clearly covered by a previous decision there is only one relevant decision or line of decisions which must be applied. The nature of the obligation to consider is discussed herein in section III. This is clearly, however, the most fundamental rule of

precedent, from which rules 2 and 3, as stated, emanate. As Cross indicates, were there to be ia general repudiation or non-recognition of rule 1 by judges, "the English legal system would have undergone a revolution of the highest magnitude." 4

RULE TWO AND THE COURT OF APPEAL Despite statements in three recent cases5 from some Court of Appeal judges apparently to the contrary, it is clear that rule 2, the nature of which is discussed in section III, binds the Court of Appeal. The Court has a duty to consider relevant decisions, but it has a duty to apply (that is, is bound to follow) any decision of the House of Lords which, and this vital point will be discussed later, actually settles or covers the particular dispute before the Court---a covering decision. A similar duty, to apply any statutory provision which settles clearly the dispute in hand-a covering statutory provision-also exists. It is quite clear that no duty exists under rule 2 to apply a covering decision of the Court of Appeal or High Court. Such a covering decision, being relevant, must be con- sidered very seriously under rule 1, and thus has considerable persuasive value, or, as Professor Dworkin puts it, "gravitational force." 6 It is probably true to say that in practice the Court of Appeal will generally approve land apply a previous covering decision of its own or of the High Court, but this is not because of the binding nature of rule 2 on the Court. A brief look at the cases illustrates and emphasises the truth of these assertions. In Broome v. Cassell and Co. Ltd. the Court of Appeal considered the application of the restrictive rules concerning the award of exemplary damages laid down by the House of Lords in Rookes v. Barnard.7 Lord Denning M.R., Salmon and Phillimore L.JJ. decided that Rookes could not stand and need not be followed on two main grounds. First, in 1964 the House of Lords was bound by its own previous covering decisions on the issue, and thus could not overthrow settled common law principles. Secondly, the decision in Rookes was given per incuriam. There was no real argument before their Lordships; and the decision itself was "hopelessly illogical and inconsistent," 8 and "in conflict with the basic

rules governing the law of this country and . . . unworkable in practice." 9 The argument came to this, that rule 2 has no application in the Court of Appeal. Covering decisions of the House of Lords, at the very least when they are mistaken (and how often can judges skil- fully argue this?), have only persuasive force under rule 1, but no binding force under rule 2. Presumably, however, no member of the Court would have been so ready to argue that a covering statutory provision was mistaken, since there had not been adequate argument in Parliament or the measure was contrary to common sense, and therefore need not be applied? The Law Lords condemned strongly the stance taken by the Court of Appeal. Viscount Dilhorne sug- gested that the Court of Appeal can justifiably refuse to follow the House in only two circumstances.10 The first is where remarks are obiter; but these are not part of any covering decision, and only possess persuasive value. Secondly, the Court can choose which of two clearly inconsistent House of Lords decisions to follow. This must arise very rarely in practice, and in any case the Court is still bound to apply one of the decisions-it cannot ignore them both. It is arguable that the later covering decision is automatically that to be followed, particularly as the 1966 Practice Statement 11 may sup- port a doctrine of implied overruling of a prior decision of the House by a later inconsistent decision of the House. Lord Hailsham of St. Marylebone L.C. was most forceful in putting forward a justification for rule 2 based on necessity: "The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers." 12 Cross points out that the word " necessary" was used not only in an imperative sense, but also "in the sense of 'essential to the working of a judicial system like the English.' When a single decision can settle the law on a particular point, the court in the highest tier must have the last word and, when spoken, that last word must be followed by all low-tier courts, however much they may believe it to have been mistaken." 8S...