Judicial Precedent Casesnotes

Topics: Common law, Appeal, Law Pages: 43 (17756 words) Published: September 11, 2013
6.4 Continuity and change in the doctrine of precedent
Miliangos v George Frank [1976] AC 443 (Required)
Key Facts
The claimant (M), who was a Swiss national, supplied yarn (紗線) to an English company under a contract which provided for payment to be made in Swiss francs. The company failed to pay and M made a claim in the English courts. He asked that the award be in Swiss francs and not in English pounds as the value of the pound had fallen. There was a House of Lords decision, Re United Railways of Havana (1960), which stated that judgments could only be given in pounds and not in any other currency. The Court of Appeal in Schorsch Meier GmbH v Hennin (1975) (see 1.4) had refused to follow this decision of the House of Lords. The House of Lords held that the change in the stability of the pound was a good reason to depart from their earlier decision, but they also pointed out that the Court of Appeal had no right to do this. Key Law

(1) The House of Lords had power under the Practice Statement to overrule its own past decisions. (2) Lower courts are bound to follow decisions of higher courts. Key Judgment: Lord Simon
‘Courts which are bound by the rule of precedent are not free to disregard an otherwise binding precedent on the ground that the reason which led to the formulation of the rule embodied in such precedent seems to the court to have lost cogency (使人信服的力量;中肯).’ Key Comment

It seems likely that if the Court of Appeal, in Schorsch Meier GmbH v Hennin, had not departed from the decision of the House of Lords in Re United Railways of Havana, then the case of Miliangos may never have been appealed to the House of Lords. This would have meant that the House of Lords did not have the opportunity to review its earlier decision.

Davis v Johnson [1974] AC 264 (Required)
Davis v Johnson [1978] 1 All ER 1132
Key Facts
A young unmarried mother applied for an injunction ordering her violent partner to leave their flat. The tenancy of the flat was in their joint names. Earlier cases in the Court of Appeal had held that an injunction could not be granted where the partner had a right in the property (in this case a tenancy). The Court of Appeal refused to follow its earlier decisions. On appeal to the House of Lords, it was held that the earlier cases had been wrongly decided, but the House of Lords reminded the Court of Appeal that they were bound to follow its own previous decisions, subject to the exceptions in Young’s case. Key Law

The Court of Appeal is bound to follow its own previous decisions, subject to the exceptions in Young’s case. Key Judgment: Court of Appeal, Lord Denning
‘While this court should regard itself as normally bound by a previous decision of the court, nevertheless it should be at liberty to depart from it if it is convinced that the previous decision was wrong. What is the argument to the contrary? It has been said that if an error has been made, this court has no option but to continue the error and leave it to be corrected by the House of Lords. The answer is this: the House of Lords may never have an opportunity to correct the error; and thus it may be perpetuated indefinitely, perhaps forever.’ Key Judgment: House of Lords, Lord Diplock

‘In an appellate court of last resort a balance must be struck between the need on the one hand for the legal certainty resulting from the binding effect of previous decisions and, on the other side, the avoidance of undue restriction on the proper development of the law. In the case of an intermediate appellate court, however, the second desideratum can be taken care of by appeal to a superior appellate court, if reasonable means of access to it are available; while the risk to the first desideratum, legal certainty, if the court is not bound by its own previous decisions grows ever greater. So the balance does not lie in the same place as a court of last resort.’ Key Comment

The judgments in this case demonstrate the arguments for and against...
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