Editorial Committee of the Cambridge Law Journal

The Precedence of PrecedentsAuthor(s): Roy StoneSource: The Cambridge Law Journal, Vol. 26, No. 1 (Apr., 1968), pp. 35-38Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505203 .

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C.L.J. Case and Comment 35

greater co-ordination and mutual recognition of decrees is to be

welcomed where the welfare of the children is involved, but it remains

uncertain whether the technique of circumventing the unequivocal

provisions of an Act by means of a device which is less than a

clear-cut rule of the conflict of laws is the right means of achieving this aim,

K. Lipstein.

C.L.J. Case and Comment 35

greater co-ordination and mutual recognition of decrees is to be

welcomed where the welfare of the children is involved, but it remains

uncertain whether the technique of circumventing the unequivocal

provisions of an Act by means of a device which is less than a

clear-cut rule of the conflict of laws is the right means of achieving this aim,

K. Lipstein.

the precedence of precedents

Although Conway v. Rimmer [1967] 1 W.L.R. 1031 was an

interlocutory appeal from a judgment of Browne J. overruling an

order for the discovery of documents by the district registrar, it

raises an important question of precedent in the Court of Appeal. This concerns the status and effect of the recent Practice Statement in the House of Lords, [1966] 1 W.L.R. 1234, about the precedence of precedents. The question raised may be put like this: when and where can a decision of the House of Lords, namely Duncan v. Cammel Laird [1942] A.C. 624, be overruled, modified, criticised, doubted or disapproved?

In answer to the question "

When? "

Lord Denning M.R. suggests that the words of the Practice Statement,

" when the House considers it right to do so

" mean when the English law can be brought into

accord with the communis opinio of the Commonwealth, whereas for the other judges it is for the House itself to decide when it is

right to do so. On the question " Where? "

Lord Denning considers that it can be done in the Court of Appeal; for the others, Edmund Davies and Russell L.JJ., it can be done only in the House of Lords.

I did not think that the nightmare conditions described in Kafka's Trial would have followed quite so closely upon and quite so soon after the Practice Statement in the House of Lords. Waismann

pictures the nightmare thus:

The ranks of officials in this judiciary system mount endlessly so that even adepts cannot survey the hierarchy as a whole. . . , There are only legendary accounts of ancient cases. The judge can grant an acquittal, and the accused walks out of the court a free man. But he is only ostensibly or, more exactly, provisionally free. The judge has not the power to grant a final acquittal: that power is reserved for the highest court of all, which is quite inaccessible to ordinary man. When the charge is lifted from the accused man's shoulders, it therefore continues to hover above him and can, as soon as an order comes from on high, be laid upon him again. . . . No document is ever lost. The court never forgets anything. One day, quite unexpectedly, some higher judge may take up the documents, recognise that the charge is still valid and order an immediate

the precedence of precedents

Although Conway v. Rimmer [1967] 1 W.L.R. 1031 was an

interlocutory appeal from a judgment of Browne J. overruling an

order for the discovery of documents by the district registrar, it

raises an important question of precedent in the Court of Appeal. This concerns the status and effect of the recent Practice Statement in the House of Lords, [1966] 1 W.L.R. 1234, about the precedence of precedents. The question raised may be put like this: when and where can a decision of the House of Lords, namely Duncan v. Cammel Laird [1942] A.C. 624, be overruled, modified, criticised, doubted or disapproved?

In answer to the question "

When? "

Lord Denning M.R. suggests that the words of the Practice Statement,

" when the House considers it right to do so

" mean when the English law can be brought into

accord with the communis opinio of the Commonwealth, whereas for the other judges it is for the House itself to decide when it is

right to do so. On the question " Where? "

Lord Denning considers that it can be done in the Court of Appeal; for the others, Edmund Davies and Russell L.JJ., it can be done only in the House of Lords.

I did not think that the nightmare conditions described in Kafka's Trial would have followed quite so closely upon and quite so soon after the Practice Statement in the House of Lords. Waismann

pictures the nightmare thus:

The ranks of officials in this judiciary system mount endlessly so that even adepts cannot survey the hierarchy as a whole. . . , There are only legendary accounts of ancient cases. The judge can grant an acquittal, and the accused walks out of the court a free man. But he is only ostensibly or, more exactly, provisionally free. The judge has not the power to grant a final acquittal: that power is reserved for the highest court of all, which is quite inaccessible to ordinary man. When the charge is lifted from the accused man's shoulders, it therefore continues to hover above him and can, as soon as an order comes from on high, be laid upon him again. . . . No document is ever lost. The court never forgets anything. One day, quite unexpectedly, some higher judge may take up the documents, recognise that the charge is still valid and order an immediate

This content downloaded from 185.44.77.82 on Sat, 14 Jun 2014 09:52:33 AMAll use subject to JSTOR Terms and Conditions

36 The Cambridge Law Journal [1968]

arrest. It is possible for the acquitted man to go straight home from the court and find officers already waiting to arrest him.

The case then begins all over again.... The infinite and nightmarish character of this process depends upon the endless nature of the hierarchy, which implies that no decision is ever final

In Conway v. Rimmer Lord Denning M.R. claimed:

In so holding we were encouraged by the fact that we were in accord with the countries of the Commonwealth. . . They are a veritable roll call. The Supreme Court of Canada.... The

- Supreme Court of Victoria.... The Court of Appeal of New South Wales.... The Court of Appeal of New Zealand.... The Supreme Court of India.... The Supreme Court of Ceylon.... The Collrt of Appeal of Jamaica.... To say nothing of the Court of Session in Scotland backed in this respect by the House of Lords itself in G1asgow Corporation v. Central Land Board, 1956 S.C.(H.L ) 1. Despite this impressive array my brethren . . . feel that we are still bound by the observations of the House of Lords in Dunonn v. Cammel Laird and by the decision of this court in Auten v. Rayner [1958] 1 W.L.R. 1300* I do not agree. The doctrine of precedent has been transformed by the recent state- ment of Lord Gardiner L.C. This is the very case in which to throw oU ffie fetters.... When we find that the Supreme Courts of those countries [of the Commonwealth], after careful delibera- tion, decline to follow the House of Lords because they are satisfied that it was wrong-that is excellent reason for the House to think again. . . * Likewise with this coun. We should draw on the wisdom of those overseas, as they in the past have drawn on ours. Thus we shall do our part to keep the common law a . . . just and uniform system throughout its broad domain.

Russell L.J. remarked: . . . in spite of the three vaIiant attempts made in recent cases in this court (by Athos M.R., Porthos and Aramis L.JJ.) to assert that Duncan's case is no authority for a " class " case, I cannot but recognise it as such and must leave it to the House of Lords to reconsider the whole basis of the case, if it wishes to do so.... The Master of the Rolls has said that the doctrine of precedent has been transformed by the Lord Chancellor's recent statement, but that statement said Ilothing to suggest that this court was in any way freed from the hitherto established principles of precedent in relation to previous decisions either of the House of Lords or of this court.

Both Lord Denning M.R. and Russell L.J. are in difficulties over interpreting the Practice Statement. Lord Denning M.R. is logically correct, though factually (i.e., on the straightforward reporting of the Statement) incorrect. He says that the Statement transforrns the doctrine of precedents even for *s this court," although the Statement

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C.L.J. Case and Comment 37

itself expressly says that " this announcement is not intended to affect

the use of precedent elsewhere than in this House."

On the logical point, however, Lord Denning M.R. is right. If

the Practice Statement asserts that the precedents of the House of

Lords are not binding on the House, and if the Practice Statement is

itself a precedent of the House (and it has been argued elsewhere

that it is: see (1967) 51 Minnesota Law Review 655), then the

assertions in the Practice Statement are not binding, a fortiori the

statement that " this announcement is not intended to affect the use

of precedent elsewhere than in this House" is not binding. Thus

this announcement is nugatory. It is part of the trouble discussed in

the Liar paradox (" I always tell lies," if true is false and if false is

true). If the House of Lords is not bound to treat the announcement

as not affecting the doctrine anywhere else, why should the Court of

Appeal? Russell L.J.'s view is consonant with the wording of the Practice

Statement and its common-sense interpretation, but it violates the **

logic "

of the Statement. Russell L.J. admits that the Statement

has done something to transform the doctrine of precedents, but

uses the Statement, which is now not binding on the House, because

of its self-referring character, to maintain: "... but that Statement said nothing to suggest that this court was in any way freed from the hitherto established principles of precedent in relation to previous decisions either of the House of Lords or of this court" (i.e., the Court of Appeal). Thus Russell L.J. concludes that a Statement that is not binding may bind in part. Compare this result with that of the Liar paradox, and with what Lord Denning claimed in spite of the express terms of the Practice Statement. But now comes the

nightmare position and the logical possibilities. If the decisions of the House of Lords are no longer binding on the House, then the

statement made in the House that the Practice Statement does not

affect the doctrine of precedent in any court other than the House is itself not binding on the House. This now being an open question in the House itself, is not an inferior court, say the Court of Appeal, entitled to treat it as precedent and so not to follow it? It is

suggested that we need to write a consistency rule into the precedence of precedents if we are to save ourselves from the nightmare and from the situation in Rabelais' Gargantua et Pantagruel (Book 3,

Chapter 39), where the judge, Birdoye, defends himself on a charge of deciding cases by the throw of a dice:

First I view and review, read and re-read, thumb over, peruse bills of complaint, subpoenas, appearances, reports, investigations, preliminary proceedings and statements, allegations, complaints, objections, cross-examinations, confrontations and face to facing

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38 38 The Cambridge Law Zournal The Cambridge Law Zournal [1968] [1968]

of witnesses, demands, letters dimissory, royal missives, warrants, demurrers, anticipatories, injunctions, returns of injunctions, appeals, final judgments, citations of argllment, decrees, adjourn- ments for appeal, acknowledgments, executions and other such drugs and spiceries on the one side and on the other, as a good judge is bound to do.

ROY STONE.

THE LEASEHOLD REFORM ACT 1 967 THE problem of Ieasehold enfranchisement with its attendant problem of fair compensation to the landIord has been with us for nearly a century. The history of the subject and the arguments for and against leasehold enfranchisement are to be found in the Leasehold Committee Final Report of 1950 (Cmd. 7982). This report, though rejecting leasehold enfranchisement in general, revealed a sharp difference of opinion on the question whether a right of enfranchise- ment should be given to ground lessees of residential property. The majority of the Committee did not recommend that any occupying tenant of residential or other premises should be given the right to purchase compulsorily the freehold or any prior interest in the premises; but they did recommend that the protection of the Rent Acts should, as an alternative to leasehold ellfranchisements be extended to occupying ground lessees of dwelling-houses within the rateable value limits for control under the Rent Acts. Two members of the Committee, however, recommended that as a general principle a]l occupying ground lessees of dwelling-houses, who had occupied their houses for at least ten years, should have a right of leasehold enfranchisement by compulsory purchase of the fee simple and any intermediate reversions at a price based, not on the value of the whole property with vacant possession, but upon the fair market value of the reversIon with a sitting tenant who would be protected either by the Rent Acts or by a right to a new lease. This minority view was mainly based on the argument that ground leases of dwelling- houses are inherently unfair to the ground lessee. A ground landlord, it is argued, only provides the land upon which the house stands: and it is most unjust that a right to possession of the house, which was wholly provided by the tenant or a predecessor in title of the tenant, should pass quite gratuitously to the landlord, together with a possibly large claim for dilapidations, at the end of the lease.

The Leasehold Reform Act 1967 adopts with modiScations the recommendations in the Minority Report. Its purpose, according to the White Paper "Leasehold Reform in England and Wales " (Cmnd. 2916) of February 1966 is to remedy the injustice suffered by the occupying long leaseholder. It is based on the principle " that

of witnesses, demands, letters dimissory, royal missives, warrants, demurrers, anticipatories, injunctions, returns of injunctions, appeals, final judgments, citations of argllment, decrees, adjourn- ments for appeal, acknowledgments, executions and other such drugs and spiceries on the one side and on the other, as a good judge is bound to do.

ROY STONE.

THE LEASEHOLD REFORM ACT 1 967 THE problem of Ieasehold enfranchisement with its attendant problem of fair compensation to the landIord has been with us for nearly a century. The history of the subject and the arguments for and against leasehold enfranchisement are to be found in the Leasehold Committee Final Report of 1950 (Cmd. 7982). This report, though rejecting leasehold enfranchisement in general, revealed a sharp difference of opinion on the question whether a right of enfranchise- ment should be given to ground lessees of residential property. The majority of the Committee did not recommend that any occupying tenant of residential or other premises should be given the right to purchase compulsorily the freehold or any prior interest in the premises; but they did recommend that the protection of the Rent Acts should, as an alternative to leasehold ellfranchisements be extended to occupying ground lessees of dwelling-houses within the rateable value limits for control under the Rent Acts. Two members of the Committee, however, recommended that as a general principle a]l occupying ground lessees of dwelling-houses, who had occupied their houses for at least ten years, should have a right of leasehold enfranchisement by compulsory purchase of the fee simple and any intermediate reversions at a price based, not on the value of the whole property with vacant possession, but upon the fair market value of the reversIon with a sitting tenant who would be protected either by the Rent Acts or by a right to a new lease. This minority view was mainly based on the argument that ground leases of dwelling- houses are inherently unfair to the ground lessee. A ground landlord, it is argued, only provides the land upon which the house stands: and it is most unjust that a right to possession of the house, which was wholly provided by the tenant or a predecessor in title of the tenant, should pass quite gratuitously to the landlord, together with a possibly large claim for dilapidations, at the end of the lease.

The Leasehold Reform Act 1967 adopts with modiScations the recommendations in the Minority Report. Its purpose, according to the White Paper "Leasehold Reform in England and Wales " (Cmnd. 2916) of February 1966 is to remedy the injustice suffered by the occupying long leaseholder. It is based on the principle " that

This content downloaded from 185.44.77.82 on Sat, 14 Jun 2014 09:52:33 AMAll use subject to JSTOR Terms and Conditions