H418/02 - Departing from and evaluating precedent

Departure in the Supreme Court

The Supreme Court normally follows its own decisions and those of the House of Lords, but it can depart when doing so is justified. The Practice Statement 1966 allowed the House of Lords to treat its previous decisions as normally binding while departing when it appeared right to do so. It recognised that rigid adherence could perpetuate injustice or unduly restrict legal development, while stressing certainty, reliance and the special need for certainty in criminal law.

The Practice Statement continues to operate in the Supreme Court. Austin v Southwark [2010], paragraphs 24–25, confirmed that continuity. Current Practice Direction 3.5 records it; Practice Direction 3.4 requires a party seeking departure to say so clearly in the permission application. Older materials refer to Practice Directions 3 and 4 under earlier arrangements. The document numbers are historical locators, rather than different substantive exceptions.

“Appears right” does not mean a new panel may change the law whenever it prefers another solution. A persuasive request should explain the earlier rule's defect, its consequences, any legal or social developments and the disruption change might cause. Reliance matters where people have organised contracts or other transactions around an established rule. Lower courts cannot use the Supreme Court's departure power themselves.

In Knauer v Ministry of Justice [2016], the Supreme Court changed the old approach to calculating future dependency losses after a death. Earlier House of Lords decisions required use of the date of death; the Supreme Court adopted the date of trial, recognising that the previous approach could undercompensate and that the legal and actuarial approach to damages had developed. It overruled the relevant earlier authorities, including Cookson v Knowles and Graham v Dodds. The Court also emphasised caution before departing, because precedent promotes certainty. You do not need to calculate the damages to understand the precedent point.

An original hypothetical rule has produced a demonstrated error for decades. That supports correction, but parties' reliance and the availability of Parliament to legislate may support restraint. A convincing argument weighs both; neither the age of a decision nor a bare claim that it is unjust automatically determines departure.

Court of Appeal exceptions

The Court of Appeal's ability to depart from its own decisions is narrower than the Supreme Court's. Young v Bristol Aeroplane [1944] established that the Court of Appeal is normally bound by its earlier decisions, with three recognised exceptions.

Per incuriam means decided through a legally significant oversight, not simply that a later judge thinks the argument weak. A disappointed litigant cannot turn every criticism into this exception. Likewise, two cases reaching different outcomes on materially different facts do not necessarily contain conflicting rules.

An original hypothetical civil appeal concerns a notice deadline. An earlier Court of Appeal decision overlooked an applicable section expressly giving seven days and adopted a three-day deadline. Demonstrating that overlooked statutory provision may support per incuriam. If the panel considered the section and interpreted it unfavourably, personal disagreement with that interpretation does not establish the same exception. A binding superior decision would be a different basis for correction.

The Criminal Division also follows precedent, but has some additional flexibility concerning its own decisions where the law has been misapplied or misunderstood and adherence would cause injustice, particularly because personal liberty is at stake. R v Gould [1968] illustrates this cautious approach. It is not a general freedom to disregard Supreme Court authority or reopen any conviction on preference. Civil certainty and criminal protection from wrongful deprivation of liberty give the divisions somewhat different concerns.

An argument about departure should specify the alleged exception and facts supporting it. “The Court of Appeal is always bound” misses Young's limits; “the Court can choose whatever seems fair” abandons the limits. Identifying the actual legal conflict or oversight is the decisive reasoning step.

Overruling and reversing

Overruling changes a legal principle established in a different, earlier case. Reversing changes a lower court's decision on appeal in the same case. A judgment can do both, but the objects of the two actions differ.

A superior court can overrule a lower court's precedent, or a court with the appropriate departure power can overrule its own previous rule. The earlier litigation's historical outcome is not automatically undone; the legal principle ceases to govern later cases. Separate rules determine whether other concluded cases can be challenged. Knauer illustrates a Supreme Court decision overruling earlier House of Lords principles about the calculation date for future dependency losses.

R v G [2003] provides an example with both mechanisms. Two boys aged 11 and 12 lit newspapers, and the fire spread to buildings. They had not appreciated the risk of that spread. Their convictions were upheld under the earlier Caldwell approach, which could impose criminal-damage recklessness where an obvious risk was not considered. The House of Lords overruled Caldwell's rule and required awareness of the relevant risk and unreasonableness in taking it in the circumstances known to the defendant. It allowed the boys' appeals and quashed their convictions.

Overruling describes what happened to the principle in the separate Caldwell case. Reversing describes what happened to the lower courts' decisions in G's own prosecution. Saying that Caldwell's historical conviction was automatically quashed would confuse the two. The new recklessness principle also does not mean nobody can be reckless: a person who appreciates an unreasonable risk can still satisfy it.