1. Lord Denning, as Master of the Rolls, disagreed with the limitation that the Court of Appeal was bound by precedent, including decisions of the House of Lords. 2. In several cases, Denning refused to follow House of Lords precedents, arguing that the Practice Statement of 1966 allowed the Court of Appeal more flexibility. 3. However, the House of Lords rejected Denning's arguments and affirmed that the Court of Appeal must follow House of Lords precedents, and that only the House of Lords itself could revisit its own precedents.

1. Introductory Thinking... Can you name the word or phrase meant by each of the pictorial clues? Reverse Follow Re Distinguish Overrule ting x er

2. Denning LJ was Master of the Rollsin the Court of AppealThis means that he was head of the civil division, and in a very powerful position. General Rule for the CA and Precedent: The rule for the branches? It can depart from its own previous decisions under... It can , or the decision of a lower court. Bound by... Well, Denning didn’t really like this limitation of his power...

3. Before we look at Denning in more detail, answer these 5 mark problem questions. Remember: Decision... Reason... Example... AORP (b) Consider each of the following situations and explain whether or not the Court of Appeal can depart from the previous decision. (i) A case concerning a death resulting from medical negligence was heard by the Court of Appeal (Civil Division). A year later, a similar issue is being heard by the Court of Appeal (Criminal Division). Now complete the following questions... (ii) A case concerning breach of contract was decided by the Court of Appeal (Civil Division). Days later a similar issue is heard by the same court but the judges now feel that the decision should be different. (iii) A case concerning murder was decided by the House of Lords. The Court of Appeal (Criminal Division) believes the decision of the House of Lords is out of date.

4. The last stand... G152 Sources of Law 2010-11 Denning, Precedent and Debate

5. What was his view He argued that the last sentence of the Practice Statement actually meant: "We are only considering the doctrine of precedent in the Lords. We are not considering its use elsewhere.“ He was saying that the Practice Statement had changed the approach to precedent overall. So if they could change their powers... then so could the CA! The CA created the Young criteria, so why can’t they change them (its only ‘updating the law’!) Realistically, the Court of Appeal is the final appellate court for many, so in the interests of justice, they should be able to act. If it is the final appellate court, then they should be able to use the Practice Statement AND if the decision of the HL was per incuriam, why on earth should the CA be bound to follow it?!

6. Round One: Conway v Rimmer 1967 Denning refused to follow the HL HL? Made it clear that the CA was bound by their previous decision.

7. Round Two Broome v Cassell (1971) Rookes v Barnard was ignored by the CA on the grounds that the decision was per incuriam. HL?: "[I]t is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way… The fact is, … 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.“ Hailsham LJ

8. Round Three... Schorsch Meier GmbH v Henning 1975 and Miliangos v George Frank (Textiles) Co. 1976 CA, again, refused to follow Havana Railways... but only Miliangoswent on appeal to HL! HL? It is not for any inferior court—be it a county court or a division of the Court of Appeal presided over by Lord Denning —to review decisions of this House. Such a review can only be undertaken by this House itself under the declaration of 1966.“ Cross LJ

9. Round Four Davis v Johnson 1979 Read the extracts from Lord Denning, and the reply from Lord Diplock in the House of Lords Answer the questions to show your understanding!

10. Denning’s “Most humilating defeat” The HL rejected all his arguments – both that the Practice Statement could apply to them, and that th CA could extend its powers to avoid precedent by extending the grounds of Young.

11. Do you agree? The lower courts should have more freedom to avoid precedent because... The current operation of precedent should remain because... 1. 2. 3. 1. 2. 3.

12. Consolidate: Take everything you know and decide whether the later case must follow the earlier in each of the following situations (and why!) 1. A case is decided in the Crown Court. A similar case reaches the Court of Appeal 1 year later. 2. A case involving the civil law of negligence is decided in the Court of Appeal. One week later, another negligence case reaches the Court of Appeal but it has slightly different facts. 3. A case decided in the House of Lords in 1993. A similar case reaches the Court of Appeal in 2003 4. A case decided in the House of Lords in 1993. A similar case reaches the House of Lords in 2003 5. The Court of Appeal sets a precedent in a criminal case. Six months later, it wishes to change the precedent in a similar case 6. The House of Lords sets a precedent in 1954. A similar case reaches the House of Lords in 1965 7. The House of Lords sets a precedent in 1954. A similar case reaches the House of Lords in 1969 8. The divisional High Court decides a case in 2005. The High court ordinary hears a similar case in 2006 9. The House of Lords makes an obiter dictum relating to the criminal offence of attempted murder. The Court of Appeal hears an attempted murder case 3 weeks later. 10. The Privy Council sets a new precedent in an Australian case. A similar case reaches the House of Lords 1 year later

13. Which is the odd one out? Pepper v Hart R v Jenkins R v Howe Knuller v DPP Herrington v BRB Milangos 1966 1944 1922 Hunter v Canary Wharf Re: A Grantanio v Radamacher R v Howe R v G&R A v Hoare R v Brown R v Emmett R v Wilson

15. What is this in Latin? Read the source material below and answer parts (a) to (c) which follow. Exercise on Judicial Precedent SOURCE A At first sight, it may seem that the doctrine of precedent means that they common law will almost never alter. But it would be an oversimplification to see the common law as a process of mechanically applying and restating rules of law that have already been created in the past. From time to time, cases arise that are so unusual that there is little or nothing in the way of case law to apply. In addition, judges find ways to avoid applying an existing precedent. No two cases have identical facts. Judges generally have to choose which of a number of precedents to apply to the current case. Earlier cases that are similar, but are in some crucial respect different, need to be distinguished from valid precedents. Some courts may overrulethe decisions of other courts (or themselves) and some courts may reversethe decision of lower courts. SOURCE B There are two factors to bear in mind when trying to establish the ratio of any particular case. Taken together, these factors indicate why there may be scope for debate as to what the ratio is and, often, why there is no simple black and white answer to the question. First, written judgements do not have headings. There is never a clear heading, the ‘ratio decidendi’. The judgements in appeal cases can often run to a dozen or more pages. As a result, it is not always clear what is ratio ad what are obiter dicta. Second, there is always more than one judge in the appeal courts. In the House of Lords there may be up to seven. Each judge is likely to give a separate judgement containing a different set of reasons for deciding the case and a different view of the law. Which judgment provides the ratio? Adapted from ‘Law in Focus’ Simon Jackson, Causeway Press 2003

16. (c) With reference to Source A and B i. Describe the justifications for judges following binding precedents [15]

17. (c) With reference to Source A and B ii. Describe the justifications for judges following binding precedents [15]

18. (a) Source B refers to the terms ratio decidendi and obiter dicta. Describe and illustrate what is meant by both those terms.

19. (B) Source A identifies various methods by which judges avoid having to apply past precedents. Explain which method of avoidance is most suited to each of the scenarios below. Illustrate your answer where appropriate. The House of Lords wish to depart from a past decision of their own. On appeal, the Court of Appeal disagrees with a ruling of the High Court and wishes to replace it with a different decision. A judge in the Crown court does not wish to follow a past precedent of a higher court as she feels that the facts are slightly different