Balfour v Balfour
[Precedent – distinguishing]
A husband promised to pay his wife £30 a month while she remained in
and he worked in
Their marriage broke down and the wife brought an action to reclaim money
she said her husband owed her.
common law does not regulate the form of agreements between spouses....
each house is a domain into which the kings writ does not seek to run
This case distinguished by Lord
Merrit v Merrit  CA
Boys v Chaplin  CA
^[Precedent – additional reason CofA will depart - where the decision was
given by a two-man court in interlocutory proceedings]
C injured in a road accident in
C asked to proceed under English law because under Maltese law damages
would have been substantially less.
Held: Allowed C’s claim.
Departing from the decision in Machado v Fontes  which had
been made by a two-man court in interlocutory proceedings - where legal
points are rarely fully argued.
The rule in
Young v Bristol Aeroplane,
does not apply to decisions such as these.
Director General of Fair Trading v The
Proprietary Association of
Great Britain (2001) CA
[Precedent – courts must follow the ECHR]
did not to stop a trial because of the alleged lack of independence of one
member of the Court (Dr Rowlatt had applied
for a post at an economic consultancy, one of the directors of which gave
expert evidence on behalf of the Director General).
Appeal against the decision allowed.
Article 6 of ECHR was applied.
Ratio in R
v Gough (1993) HL (on bias) refined.
Doughty v Turner
[Precedent – additional reasons CofA will depart - where it has been
disapproved by the Privy Council]
D the factory owners where C was badly burned when cement was knocked into
a bath of molten metal causing a violent and unexpected chemical
Held: In Re Polemis  the
Court of Appeal held that a person who performed a negligent act was
liable for all its direct consequences.
However, in The Wagon Mound  the Privy Council had
disapproved the rule in Polemis and held that liability existed only where
the kind of damage was reasonably foreseeable. The CofA followed the PC
ruling and found D not liable for C's injuries,
“I take it that whether The Wagon Mound is or is not binding on
this court we ought to treat it as the law.”
is binding on the CofA.
Fitzsimons v Ford Motor Co  CA
[Precedent – binding nature of CofA]
D employed C who contracted Raynaud's disease because of vibration in the
drill he had to use. He claimed for an industrial accident.
Held: Departed from its own
earlier decision in Steel v Cammell Laird  - that an accident
required a sudden and decisive attack.
Following instead Burrell v Selvage (1921) HL - that a disease
arising from employment could under certain circumstances be regarded as
Froom v Butcher  CA
[Precedent – binding nature of CofA decisions on lower
C was injured in a road traffic accident but was not wearing a seat belt,
which at the time was widely recommended but not legally required.
Decisions were never consistent whether it was contributory
negligence and if it were, what level of compensation was payable
Held: C’s damages were reduced by 25%. Failure to wear a seat belt
is contributory negligence if use of a belt would have avoided or lessened
the injuries sustained in the accident.
For the future a deduction of 25% where
wearing a seat belt would have prevented the injuries, or 15% where there
would still have been some injuries but they would have been less severe.
Gould, R v  CA
^[Precedent – criminal division does not apply stare
decisis as rigidly as civil division]
D remarried in the honest, but
mistaken belief that his first marriage had been dissolved.
R v Taylor  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.
does not apply the doctrine of stare decisis with the same rigidity
as in its civil jurisdiction: if on due consideration it is of the opinion
that the law had been misapplied or misunderstood in an earlier decision
and can depart even though the case could not be brought within any of the
Young v Bristol Aeroplane Co (1944)
In principle there is no difference in the
application of stare decisis in the civil and criminal divisions,
however, in addition to the Young exceptions, because a person's liberty
may be at stake, precedent is not followed as rigidly in the criminal
R v Wheat  not
followed as it conflicted with the authorities which establish that a bona
fide claim of right is a defence even if it is founded upon a mistake of
law. The judgment in R v Wheat  was mostly obiter and was overruled by
This case was heard by the newly created CofA
Hamblin v Field (2000) CA
[Precedent – use of reports]
Excessive citation of authorities - particularly in the form of case law
summaries (in this instance one from Lawtel) which did not use the
language used by the judge and in which it was unclear whether the
judgment had been summarised by a professional lawyer - were to be
These recent cases indicate that it is perhaps time that a thoroughgoing
examination of the use of the burgeoning number of law reports and digests
of reported and unreported cases was made by the judiciary. Only then will
lawyers and information professionals have certainty about what is and
what is not to be allowed.
James and Karimi, R v  CA
^[Precedent - exception - Court of Appeal to follow PC in certain
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.
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.
Jenkins, R v (1983) CA
[Precedent – application of Young in Criminal Division]
D entered a house and inflicted GBH on a person therein. They were
convicted of an alternative charge of ABH.
Held: There were previous conflicting decisions and the CofA could choose
which one to follow, in this case the one favouring the defendant.
Kadhim v Brent
London Borough Council (2001) CA
^[Precedent – exception
- principle binding only if previously argued]
C claimed his human rights had been infringed over the payment of Housing
Held: A lower court was not
bound by a proposition of law which, although part of the ratio
decidendi of an earlier decision, had not been the subject of argument
before, or consideration by that court. However, this exception to the
strict rule of precedent was to be allied only in the most obvious cases.
Merrit v Merrit  CA
[Precedent – distinguishing]
D and C married, but the husband C went to live with another
woman. C agreed to pay D £40 a
month and she was to pay off the mortgage. When it was paid off he would
transfer the house into her sole ownership. The wife paid off the balance
of the mortgage and the husband then reduced the £40 a month to £25 a
Balfour v Balfour 
CA held that a spouse could not sue the
Balfour v Balfour  CA
and Jones v Padavatton  CA, Lord Denning stated that an
intention to create legal relations could found between a husband and wife
where they were living in amity and separated or about to separate.
Per curiam. In
deciding whether or not an agreement is intended to establish legal
relations the surrounding circumstances must be looked at to see whether
reasonable people would regard the agreement as intended to be binding
House belonged to D
Morelle v Wakeling  CA
[Precedent – decisions per
incuriam (by carelessness or mistake) can be avoided]
Lord Evershed MR:
”As a general
rule the only cases in which decisions should be held to have been given
are those of decisions given in ignorance or forgetfulness of some
inconsistent statutory provision or of some authority binding on the
court concerned: so that in such cases some part of the decision or some
step in the reasoning on which it is based is found, on that account, to
be demonstrably wrong. This definition is not necessarily exhaustive…”
Parmenter, R v  CA
[Precedent – binding nature of CofA]
D injured his child by roughly handling him and breaking the bones in his
arms and legs.
there was no proof that D had foreseen the risk of injury, but then had to
decide whether a conviction for assault causing actual bodily harm could
be substituted. One division of the Court had decided in
Spratt  that foresight
was essential to a conviction; on the same day, another division had
decided in Savage  that D need not himself have foreseen any risk of
harm. Faced with two incompatible authorities, the Court had to choose
between them, and chose to follow Spratt. (The House of Lords subsequently
reversed the decision and said Savage was the case that had been correctly
of GBH. Guilty of ABH
v Carty  CA
[Precedent –CofA departing for
C, landlord sought possession of a flat. The tenant D counterclaimed for
the return of overpaid rent.
Held: The earlier decisions
Appeal in Kent v Millmead Properties (1982) had been made
without reference to statutory provisions in the Rent Act 1977
keeping the registered rent in force until a new "fair rent" was
Re A (children) 
^[Precedent – example of judicial
law making – not regarded as precedent]
"Conjoined twin" Jodie and Mary needed to be separated to save the life of
one the twin, but causing the immediate death of Mary.
Lord Justice Ward: this case did not create a precedent for other cases of
There could be no doubt that in English law, a surgeon who performed the
separation knowing that it would inevitably hasten Mary's death would be
held to have caused that death and to have done so intentionally, even
though that would not have been his primary motive. So far as the law was
concerned, the doctrine of double effect did not apply here because Mary's
death would not be a side-effect of treatment that was in her best
interests overall. In the instant case the life to be taken was that of a
person who (although morally blameless) was slowly killing her sister who
was entitled to defend herself.
Declaration approved, operation carried out Mary died Jodie is living a
normal life at the time of writing.
Re Automatic Telephone and Electric Co. Ltd’s Agreement (1965) CA
[Precedent – example of binding
nature of Stare Decisis]
dissented in Re Schweppes Ltd’s Agreement
(1965) CA but when later the same day the same point was involved in a
similar case the judge said he was bound to follow the decision in the
Re Kay's Settlement  Simonds J
[Precedent – High Court judge not bound by brother judge in High Court but
will usually follow]
C, trustees of a trust in favour of three children sought directions on
their beneficial entitlement in the trust.
Held: Refusing to depart from
Re Pryce  which had ruled that the trustees should not
enforce a covenant for the benefit of volunteers who had given no
Simonds J. refused to direct the trustees to put either covenant for the
benefit of the settlor's children.
Medicaments and Related Classes of Goods (No. 2)  CA
^[Precedent – Court of Appeal not bound by itself in conflict with
A member of the Restrictive
Practices Court had the appearance of bias when it was revealed that she
had applied (unsuccessfully) for a job with a company associated with the
action before the court. The case was brought to decide prices charged
for medical products (medicaments). She should have disqualified (recused)
The Court of Appeal refused to follow a decision of the House of Lords in
R v Gough (1996) because it was different from decisions of
the European Court Human Rights (Strasbourg jurisprudence).
They created a new, objective test; “The question is whether the
fair-minded and informed observer, … , would conclude that there was a
real possibility that the tribunal was biased."
Re S (Adult: refusal of medical
[Precedent – recent examples of judicial lawmaking]
the health authority caring for a
seriously ill 30yr old woman who refused a Caesarean section on religious
grounds. C applied for
a declaration to allow an emergency Caesarean section which was the only
means of saving the patient's life and ensuring the live birth of the
Held: Sir Stephen Brown relied
upon Lord Donaldson's caveat in
Re T (Adult: Refusal of Treatment) 
only possible qualification is the case in which the choice may lead to
the death of a viable foetus', and the American case of Re AC  and granted a
declaration that a caesarean section could be lawfully performed on a
competent woman without her consent.
This case has
heavily criticised both for its substance and its procedural shortcomings,
Rickards v Rickards  CA
[Precedent – early attempts to depart for other reasons]
An appeal which turned on the Court's discretion to extend time limits.
Held: Departing from an earlier
decision refusing jurisdiction in such cases, on the grounds of that it
was manifestly wrong.
Lord Donaldson MR said:
“The importance of the rule of stare decisis in
relation to the Court of Appeal's own decisions can hardly be
overstated. We now sometimes
sit in eight divisions and, in the absence of such a rule, the law would
quickly become wholly uncertain.
However, the rule is not without exceptions, albeit very limited.
These exceptions were considered in Young v Bristol Aeroplane Co
Morelle Ltd v Wakeling 
and, more recently, in Williams v Fawcett , where relevant
extracts from the two earlier decisions are set out.
These decisions show that this court is justified in refusing to
follow one of its own previous decisions not only where that decision is
given in ignorance or forgetfulness of some inconsistent statutory
provision or some authority binding on it, but also, in rare and
exceptional cases, if it is satisfied that the decision involved a
manifest slip or error. In
previous cases the judges of this court have always refrained from
defining this exceptional category and I have no intention of departing
from that approach save to echo the words of Lord Greene MR (in Young's
case  Evershed MR (in
Morelle's case  and
to say that they will be of the rarest occurrence.”
Smith, R v (Morgan)  CA
additional reasons CofA will depart - where it has been disapproved by the
Morgan Smith in 1996 killed a former
flatmate, James V, after they became embroiled in a fight over stolen
defences were that he did not intend to kill or cause grievous bodily
harm; that he was suffering from diminished responsibility; and that he
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
The Court declined to follow the opinion in Luc Thiet Thuan v R 
PC - Privy Council opinion are only persuasive - and preferred its own
decisions - which it considered binding.
Guilty of manslaughter
This case eventually went to the lords but was
effectively overruled by
Jersey v Holley  PC.
Southwark London Borough Council v Mills (1999)
[Precedent - retrospective change to the law – judges are
said to be clarifying the law]
D local authorities.
were tenants of
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.
“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.”
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
Spencer, R v (1985) CA
[Precedent – CofA - additional reasons -
stare decisis - rule not
applicable where liberty of subject concerned -
criminal division does not apply stare decisis as rigidly as civil
D’s charged with ill treating mental patients in a
Members of the jury were directed not to discuss case with
a discharged juror, three members disregarded the direction. The issue was
whether this irregularity affected the trial.
The Criminal Division was bound in the same way as the
Civil Division of the Court of Appeal by the doctrine of stare decisis
and the same general principles applied before either Division could
depart from a previous decision but, since the Criminal Division was
dealing with the liberty of the subject, that Division would not follow a
previous decision where the interests of justice to an appellant required
an earlier authority not to be followed; and that, accordingly, the court
would apply those principles in determining the proper direction to be
given to the jury.
Spratt, R v  CA
[Precedent – significance of obiter]
D caused ABH by shooting a 7-year-old girl twice, with an air pistol. He
was firing from the window of his flat, aiming at a target in the yard
V was playing in the yard D had not known she was there.
They did not follow Lord Roskill's dictum in Seymour, saying that the
recklessness required for offences under the Offences Against the
Person Act as defined in
Cunningham and as envisaged in
v Venna was clearly subjective
recklessness (that is, that D foresaw the risk but went ahead regardless),
because the judgment in
v Venna speaks of recklessness and
intention as being often almost indistinguishable.
R v  CA
^[Precedent – CofA - additional reasons - stare decisis - rule not
applicable where liberty of subject concerned -
criminal division does not apply stare decisis as rigidly as civil
D went through 4 bigamous ceremonies whilst married to his lawful wife
Alice, whom he had not seen for more than twenty years.
By a full court of seven. Overruling R v Treanor (or McAvoy) .
Lord Goddard said that the defence in the 1861 Act was restricted
by Treanor to not hearing from a spouse for seven years only to the first
bigamous ceremony and not to subsequent ones.
He stated that the CofA
would normally consider itself bound by earlier decisions (without
Young v Bristol Aeroplane Co (1944)).
”…but this court has
to deal with the liberty of the subject and if, on re-consideration, in
the opinion of a full court the law has been either misapplied or
misunderstood and a man has been sentenced for an offence, it will be
the duty of the court to consider whether he has been properly
This rule was followed in
R v Gould
R v Newsome
1925 Married Alice
1927 ‘Married’ a second woman
1942 ‘Married’ a third woman
1944 Acquitted of 1942 event because 1927 not a lawful marriage
1945 Acquitted of 1927 no evidence Alice alive, not seen more than 7 years
1946 ‘Married’ Lilian
1948 ‘Married’ Olive
1950 Pleaded guilty to bigamy in 1946 and 1948. He thought he could not
use the defence that Alice he had not heard of her for over 20 years,
because R v Treanor said the defence only applied to a single subsequent
marriage, viz 1927 or 1942.
Williams v Fawcett (1985) CA
[Precedent – exceptions to Young – previous decision
– liberty of the subject]
C was committal to prison for breach of a
non-molestation court order.
The paperwork failed to specify the breaches or to grant an adjournment.
Held: Sir John Donaldson MR:
These were material irregularities for which the order would be quashed.
Previous decisions were
the error had been compounded by a line of cases, and this was an
Young v Bristol
Aeroplane Co Ltd  CA
[Precedent – CofA – initial rules of binding nature of
decisions of the Civil Division]
This case involved compensation for a workman, under the Workmen's
that the Court of Appeal was bound by its own previous decisions the only
exceptions to this rule are: -
The court is
entitled and bound to decide which of two conflicting decisions of its
own it will follow;
the court is
bound to refuse to follow a decision of its own which, though not
expressly overruled, cannot, in its opinion, stand with a decision of
the House of Lords;
the court is not bound to follow a decision of its own if
it is satisfied that the decision was given
e.g., where a statute or a rule having statutory effect which would have
affected the decision was not brought to the attention of the earlier
Decisions of the Court
of Appeal itself are binding on courts below, namely the High Court and
the county courts.