Okay, so you'll remember from the ends of the last lecture that we were looking at the way in which the doctrine of precedent works in the Supreme Court. When it was the House of Lords, it was bound by its previous decisions up until 1966. So you'll remember that up until ’66, the London Tramways case said that the House of Lords bound itself. Then in 1966 we have the practice statement from Lord Gardner. He said that the House of Lords could depart from its own previous decisions when it's appeared right to do so. Now the question for today is: how does that work in the Court of Appeal? Well, the short answer is it doesn't. The Court of Appeal has its own set of rules in which it works out whether it can depart from its own previous decisions and not whether it's bound by its previous decisions. And the key case to consider today are the principles that arose from Young and Bristol Aeroplane Company, which goes back to 1944.
In this one the Court of Appeal considered whether it was bound by its previous decisions and it decided that it normally was, but came up with three exceptions. The first of which is where its own decisions conflict with each other. The second is if the previous decision has been overruled by the House of Lords (now the Supreme Court), essentially if a higher Court had said something differently and a previous decision has been overruled. Or finally, if a previous decision has been made per incuriam - don't worry about the Latin there, we'll come on later on to explain what that means in detail. Essentially, it means “wrongly, carelessly”, but part with that for the time being, we'll come back to it in a minute.
So, the first of these exceptions then is where its own previous decisions conflict. Now, you may ask yourself, “Well, how can that happen? Surely the Court of Appeal knows what it's done before and it should be consistent.” Sometimes it doesn't happen like that – the court may be just blissfully unaware of the decision in the earlier case, maybe a very, very recent case. Or, the second case might’ve distinguished the first one. It might have decided that the material facts were different and, as such, the application of the second case or the first case wasn't the same. You'll remember that from when we looked at the ratio of the case and what that meant in earlier lectures. So, there can be situations in which previous decisions of the Court of Appeal conflict with each other.
Which decision does the court follow? Well, you might think that it just follows the most recent one that seems on the face of it to be pretty logical. It represents the most recent thinking of the Court of Appeal. In actual fact, the court can decide which of the two previous decisions it follows; it doesn't have to be the most recent one. In Starmark Enterprises, it did choose the earlier one – but it doesn't always do it. And another example of that is a slightly earlier case of NatWest and Powney, which you can go and look up after the lecture. So, what does that mean for previous decisions if it decides not to follow an earlier one? Does that strike it from the record? Does that disapprove it? Does it wipe its precedent value? Technically, no, it doesn't. Its status isn't affected by the fact that it's not being followed. It could still be adopted in a subsequent case because it would’ve caused conflicts with the decision in the case that the court was considering when it rejected it. So in a future case there would still be two conflicting decisions. So, it could still be adopted in a subsequent case. Slightly messy, but how often does this actually happen? Pragmatically speaking, not very often at all.
You know, we've got two cases there as examples. They're 10 years apart and there aren't a whole bunch of them. However, you need to understand the theory behind this: if previous decisions conflicts the Court of Appeal can choose which one to follow.
The second exception from Young and Bristol Aeroplane is where a previous decision of the Court of Appeal has been overruled implicitly by the Supreme Court, the higher court. So, if there is a decision that's inconsistent with the Supreme Court's decision on the same point of law, then the Court of Appeal can depart from its previous Court of Appeal decision. An example of that is Family Housing Association and Jones from 1990, but again, it doesn't happen very often. It can happen. You may ask, “How could a case get to the Supreme Court without going through the Court of Appeal first?” Remember, from the appeals process which we covered right back at the start of the semester, there is a leapfrog procedure on appeals when cases can go from the High Court straight up to the Supreme Court, bypassing the Court of Appeal in between.
You might also think, “Well if the Supreme Court's a higher court, does it also apply to the Privy Council, which is higher in the hierarchy of the Courts than the Court of Appeal?” And the answer to that is: no. And the authority for that comes from in the matter Re Spectrum Plus Limited from 2005.
Finally, back to our little bit of Latin. If the previous decision is per incuriam, it actually means “through carelessness”. So that's a decision that's been made in ignorance or forgetfulness or through carelessness, without due regard for the relevant law.
Morelle and Wakeling, 1955 defined per incuriam decisions as those that were given in ignorance or forgetfulness of some inconsistent statutes, statutory provision, or some authority binding on the court consent. In other words, if the decision was made without due regard to the correct law. Essentially, if the court got it wrong, if it didn't get the law right, it can happen. Again, there aren't many examples of it, but it can happen. Morelle and Wakeling is a good one. Another one that's not on the slide is Duke and Reliance Systems Limited which comes from 1988.
So, that's been a bit of a gallop through the three exceptions in the Court of Appeal. We've only looked at the Civil Division so far. Remember, of course that there is the Criminal Division as well. Does Young and Bristol Aeroplane apply there? Yes, it does. But the court does have a wider discretion to depart from its previous decisions because the liberty of the individual is at stake in the Criminal Division. So the court has given itself a little bit more latitude as to whether it can depart from a previous decision in the interests of the justice and bearing in mind of the rights and the liberty of the individual, though convicted criminal, who is on appeal at that time.
Lord Diplock put it very well in The Crown against Gould in 1968. And I'll just read what he said, he said: “If upon due consideration, we were to be of the opinion that the law had been either misapplied or misunderstood in a previous decision, we should be entitled to depart from that view as the law expressed in the earlier decision. Notwithstanding that the case could not be brought within any of the exceptions laid down in Young and Bristol Aeroplane.” Essentially what he's saying: if we think that a previous decision was wrong, we should be able in the Criminal Division of the Court of Appeal to disregard it and do what we think is right, even if we can't shoehorn it into one of the Young and Bristol Aeroplane exceptions. So it's a very, very broad discretion in the interests of justice and the rights of the individual before the criminal courts.
Finally, do the Criminal and Civil Divisions bind each other? No idea, never been tested. Really unlikely to come up. If you think about the different subject matters that sit before those two courts, it's unlikely that they'll have similar points of law to consider.
And finally, remember that the Court of Appeal consists, or can consist of a full court of five judges, or a smaller court of three judges. And it's generally accepted that a full Court of Appeal can depart from decisions, earlier decisions of a three-judge Court of Appeal. Essentially, five heads are better than three, and I think that's the logic behind that.
Okay. Thank you.