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ENGLISH LEGAL SYSTEM: SOURCES OF LAW - CASE LAW (2)

We will start this post with an exercise.


Exercise 1

Match the following words (in bold) to their meanings 1-5. The answers are in the Answer Key at the end of this post.


indispensable, rigid, adherence, binding, to depart from


1. having legal force

2. to vary or deviate from something

3. absolutely necessary

4. not flexible

5. attachment or commitment to something



Until 1966, the Supreme Court of the United Kingdom (then called the House of Lords) was bound to follow and apply its own previous decisions, under the principle of stare decisis. However, this had the potential to create injustice and unfairness. Therefore, in July 1966, the House of Lords (Supreme Court of the United Kingdom) issued the following Practice Statement:


"Their Lordships [the judges of the House of Lords] 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.

This announcement is not intended to affect the use of precedent elsewhere than in this House."


The effect of the Practice Statement is that the Supreme Court of the United Kingdom may now depart from its own previous decisions, and overrule them, but only ‘when it is right to do so’. The kind of situations when the Supreme Court might do this is when ‘it is in the interests of justice and the proper development of the law.’ [1]


The second highest court in England & Wales is the Court of Appeal. This court is therefore below the Supreme Court in the hierarchy of the English court structure. However, it is an important court because most appeals end in the Court of Appeal (there are limited grounds for appealing to the Supreme Court, which we will look at in a later post). The Court of Appeal is also important because it has helped to develop the doctrine of precedent since it was established in the 19th century.


In civil cases, the Court of Appeal (Civil Division) is bound by decisions of the Supreme Court. It also used to be bound by its own previous decisions. However, in 1944, in the case of Young v Bristol Aeroplane Company [2], the Court of Appeal decided that it would no longer be bound by its own decisions in three situations:


· When an earlier decision of the Court of Appeal has been handed down but some important authority had not been considered by the court (for example, an old case or statute) in the earlier case. In this situation, the earlier decision is said to have been made ‘per incuriam’, which means ‘through lack of care’.

· Where there is a conflict between two earlier Court of Appeal decisions.

· Where a previous decision of the Court of Appeal is in conflict with a subsequent (later) decision of the Supreme Court.


In criminal cases, the Court of Appeal (Criminal Division) applies similar principles, but also gives a lot of consideration to the liberty of the subject. In reality, there is far more legislation passed by parliament in relation to criminal matters than civil matters. Of course, the Court of Appeal cannot continue to apply a precedent if legislation has changed the legal situation.


The next court below in the English court hierarchy is the High Court of Justice. We will consider the structure and function of this court in more detail later in this series, when we look specifically at the courts. The High Court is a senior court. It is bound to follow precedents set by the Supreme Court and the Court of Appeal. However, the High Court is not absolutely bound to follow decisions made by previous High Court judges, although it will usually do so.


One key question, which we will start to consider in the next post, is exactly what part – or elements – of a case is binding as a precedent.


Text References

[1] Lord Morris in Conway v Rimmer [1968] AC 10

[2] [1944] 1 KB 718



Exercise 2 – Comprehension Check

Are the following statements true or false?


1. Before the Practice Statement made in 1966, the Supreme Court (then called the House of Lords) was not bound by its own previous decisions.

2. The Practice Statement made it clear that precedent was a very important doctrine under English law.

3. There are two situations when the Court of Appeal (Civil Division) may deviate from its own previous decisions.

4. High Court judges are absolutely bound by previous decisions of other High Court judges.

5. The Latin phrase ‘per incuriam’ means ‘lack of care’.






ANSWER KEY

Exercise 1

1. indispensable – (3) absolutely necessary

2. rigid – (4) not flexible

3. adherence – (5) attachment or commitment to something

4. binding – (1) having legal force

5. to depart from (2) – to vary or deviate from something


Exercise 2

1. False. Before 1966, the Supreme Court (House of Lords) was bound by its own previous decisions.

2. True. The Practice Statement stated that, “

3. False. There are three situations when the Court of Appeal (Civil Division) may depart from its own previous decisions.

4. False. Normally, High Court judges will follow the previous decisions of other High Court judges, but they are not absolutely bound to do so.

5. True.



(c) Cambridge Legal English Academy 2021



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