ON THE LIBERATION OF APPELLATE JUDGES HOW NOT TO DO IT!

THE

MODERN LAW REVIEW Volume 35 September 1972 No. 5

ON THE LIBE~RATION OF APPELLATE JUDGES

HOW NOT To DO IT * I. INTRODUCTORY

WE may think of the House of Lords Practice Statement of 1966, by which its members purport to take liberty to " depart " from their earlier decisions when they think it '' right " to do so, as a certain watershed in inst i tut ional (as distinct from individual) judicial acknowledgment of the creative elements in appellate decision-making. Certainly, we are now in the presence of self- searching and overtness of choice in English appellate activity as never bef0re.l We may think of the sudden implosions in Boys v. Chaplin concerning foreign torts in British courts. The Court of Appeal and the House have vied with each other to bring forth a whole crop of competing rules, few of them matching what has been done in the preceding century under that rule. We may think of Gallie V. Lee where the appellate judges achieved consensus on the kind and degree of error or misunderstanding needed to base the non

of the staid learning on the rule in Phill ips V. Eyre

* The substance of this article waa first delivered as the Fourth Wilfred Pullagar Lecture a t Monash University on May 31, 1972. The treatment of Jones v. Secretary of State for Social Seroices 119721 1 All E.R. 145 (H.L.) has, however, been rather extended for the present purpose.

1 For illustrative earlier materials, see Lord Wright, Legal Essays and Addresses (1939) xxv; Lord Radcliffe dissenting in Lister v. Royford Ice Co. 19571 A.C. 555 , 591-592; Stone, Legal Sys tem and Lawyers Reasonings F 1964) cvii (pass im); idem, '' The Ratio of the Ratio Decidendi " (1959) 22

M.L.R. 597 (passim). 2 [1968] 2 Q.B. 1; [1968] 2 W.L.R. 328; [1968] 1 All E.R. 283 in the Court

of Appeal, as affirmed in the House of Lords [1971] A.C. 356; [1969] 3 W.L.R. 322; [1969] 2 All E.R. 1085. See, for full analysis, Julius Stone, " A Court of Appeal in Search of Itself. . . . (1971) 71 Columbia L.R. 1420-1442. ~ ~

3 (1870) L.R. 6 Q.B. 1. 4 [lo691 2 Ch. 17; [1969] 2 W.L.R. 901; [1969] 1 All E.R. 1062, in the

Court of Appeal, also affirmed in the House [1971] A.C. 1004; [1970] 3 W;,L.R. 1078: r19701 3 All E.R. 961. For a full analvsis. see Julius Stone. The LimitsLof N k Est Factum after Gallie v. Lee (1972) 88 L.Q.R. 190.'

VOL. 35 (6) 449

1

450 THE MODERN LAW REVIEW VOL. 35

est factum plea, reinterpreting or discarding a mass of cases, and leaving a rich residue of unclarities in the process. We may think, too, of the wide range of varying judicial positions on the duty of care, laid bare in the House of Lords consideration of Dorset Y a c h t Co. v. Home O f i ~ e . ~ Lord Diplock, indeed, made a rather unique attempt, for an English judge, to set the working out of the limits of Lord Atkin’s duty notion into a frame of continuing judicial choice-making, on the basis of what he called ‘( the judges’ con- ception of the public interest in the field of negligence . . . based upon the cumulative experience of the judiciary of the actual consequences of lack of care in particular instances.”

At one remove from these trends runs an unresolved debate in the Court of Appeal about whether that court, too, can and should “ liberate ” itself from Young v. Bristol Aeroplane C O . ~ and become free to depart from its own decisions when it deems it right to do so. As early as Conway v. Rimmer Lord Denning M.R. had in a dissent urged that the House of Lords Practice Statement must also change the Young case precedent rule for the Court of Appeal; but his brethren continued to insist on regarding the Young case rule as unaffected. in 1969, Lord Denning concurred in a result on the merits with Salmon and Russell L.JJ.; but he did so by his own path of overruling Carlisle Banking Co. v. Bragg,lo a co-ordinate precedent. Salmon L.J., while regretting that the Young case rule required adherence to earlier decisions, even when this involves “ inconsistency, injustice and an affront to common sense,” thought that the rule could only be removed by a unanimous court.ll But Russell L.J. denied that even a unanimous court could do so; and he thought that it should not, since this would decrease the reliability of case law for practitioners, clients and judges.I2

Since members of the House also disapproved of the Bragg case, one might have expected that all this would amount to a continuing slide away from the Young case rule, and an intensification in Lord Denning’s campaign against it. Certainly, one need not have expected the next stage to be a confrontation between the Court of Appeal and the House of Lords. Much less was one to expect that a unanimous Court of Appeal, including Lord Denning M.R., would be found reproving the House for departure from its own earlier decisions, or seeking to hold the House after 1966 to a

In Gallie v. Lee

5 (H.L.(E.) ) [1970] A.C. 1004; [1970] 2 W.L.R. 1140; [1970] 2 All E.R. 294. 0 (H.L.(E.) ) 19701 A.C. at p. 1058, and see esp. pp. 1063-1064. 7 [1944] 1 K.4. 718; [1944] 2 All E.R. 293; (1944) 171 L.T. 113. 8 1967 1 W.L.R. 1031, 1037; [1967] 2 All E.R. 1260, 1263. 9 119691 2 Ch. 17, 57; [1969] 2 W.L.R. 901, 913-914; [1969] 1 All E.R. 1062. 1082.

10

11 El9691 2 Ch. 17, 49; [1969] 2 W.L.R. 901, 924-925; [1969] 1 All E.R.

12 [1969] 2 Ch. 17, 41-42; [1969] 2 W.L.R. 901, 918; [1969] 1 All E.R. 1062,

19111 1 K.B. 489 (C.A.).

1062, 1082.

1076.

SEW. 1972 O N THE LIBERATION OF APPELLATE JUDGES 451

technical rule of the Young case about decisions given per incuriam, or even apparently challenging the House’s authority to change “ t h e common law.’’ Yet all this appears to have happened in Broome v. Cassell.l3 The House rejected the Court of Appeal’s reproof, in what may well be the most hostile af imat ion of a Court of Appeal decision in our history.14

All this, besides being unexpected, is also perhaps a most frustrating outcome for expectations that the watershed of the 1966 Practice Statement might lead to fpller understanding by appellate judges of the creative nature of their tasks, with the recognition that this may require development or change in existing rules, whether by review of earlier decisions or otherwise. It is this aspect which is the main concern of this paper and which has led me to entitle it as I have, and dedicate it to the distinguished and creative Australian judge whom it commemorates.

11. THE NARROW ISSUE: WAS BROOME v . CASSELL WITHIN LORD DEVLIN’S CATEGORIES ?

Captain Broome, the plaintiff in Broome V. Cassell, claimed that he was libelled in the book, The Destruction of Convoy PQ17, an account of a dramatic naval tragedy of World War 11, by its publishers, Cassell (the fnst defendant) and its author (the second defendant). The alleged libels concerned the performance by the plaintiff, Captain Broome, of his naval duties as commander of that convoy, responsibility for the tragic loss of the convoy being attributed to defects in the plaintiff’s conduct and character. The evidence showed that both defendants knew before publication that the passages concerned were false, and, moreover, that they persisted in publishing without correction, despite the fact that the falseness of the statements complained of was more than once drawn to their attention on the printer’s proofs by the plaintiff, the Admiralty, and others. The jury assessed the compensatory damages a t 215,000, and the exemplary a t 225,000.

The main issue on which Broome v. Cassell came to the Court of Appeal was whether the jury was debarred by the law as laid down by the House of Lords in Rookes v. Barnard (per Lord Devlin) in 1964,15 from awarding the 225,000 “ exemplary ” damages, over and beyond damages required (including any for the ‘$ aggravated ” nature of the defendant’s conduct) to compensate the plaintiff. This additional amount of ‘‘ exemplary ” damages has for its purpose (in the Lord Chancellor’s ‘‘ vindicate the strength of strictly penal provisions.ls

13 [1971] 2 Q.B. 354; [1971] 2 14

1s 119641 A.C. 1129. 1221-1231: 19721 1 All E.R. 801.

E.R.-367, 407-413. 16 [1971] 2 All E.R. 187 (C.A.);

later words in Cassell v. Broime) to the law and act as a supplement to its

W.L.R. 853; [1971] 2 All E.R. 187.

[1964] 2 W.L.R. 269, 324-332; [1964] 1 All

[1972] 1 All E.R. 801 (H.L.), 829.


Rookes v. Baynard was a case concerning intimidation in industrial relations, in the course of which a question arose whether “ exemplary ” damages could be awarded in respect of a flagrant breach of contract. In that case, Lord Devlin, with the unanimous approval of all his brethren, reviewed the law, and laid down that exemplary damages could only be awarded in three categories of case. These concerned, first, oppressive action by officers of the Crown (not here involved); secondly, cases where the defendant had ‘( with a cynical disregard for a plaintiff’s rights . . . calculated that the money to be made out of his wrong-doing will probably exceed the damages a t risk ” 18; and, thirdly, cases where statute ‘‘ authorised ” exemplary damages (this last also was not here involved).*g

Lord Devlin also expressed three ‘‘ considerations ” applicable to all cases of exemplary damages: first, that the plaintiff cannot recover such damages unless he is himself the victim of “ the punishable behaviour.” Secondly, ‘‘ exemplary ” damages can be used both for and against liberty, and are a punishment without the safeguards of a criminal trial, so that the weapon must be used with restraint, and the House might have to “ place some arbitrary limit on such awards,” despite the respect due to assessment of damages by juries. Thirdly, the financial means of the parties, though irrelevant to compensatory damages, are relevant to exemplary damages.

The fact that exemplary and compensatory damages must thus be presented differently to the jury, Lord Devlin also indicated, did not necessarily mean that the jury must make two separate awards. It should, however, be directed that exemplary damages should only come into play if it regards the amount which it has fixed for compensation as inadequate in the circumstances to punish and deter the defendant and mark its disapproval for his outrageous conduct.

The trial judge in Broome v. Cassell regarded himself as bound by this House of Lords decision in Rookes v. Barnard. The judge instructed the jury that in relation to the instant facts they should only award exemplary damages as a separate item, and only if the case fell within Lord Devlin’s second category of calculation of profits against damages.*O The jury, as already observed, awarded g25,OOO on the exemplary head. This, then, came to the Court of Appeal to determine whether the exemplary damages were impermissible or excessive, counsel for both defendants arguing

17 [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367. 18 [1964] A.C. a t p. 1227; [1964] 2 W.L.R. at p. 328; [1964] 1 All E.R. at

19 At pp. 1126-1127; 320-329; 410-411 respectively of the same reports. 20 [1972] 1 All E.R. 801; 811-812, 815, 839, 843, and (for Lawton J.’a actual

words, see the Court of Appeal report [1971] 2 All E.R. 187, 200 (per Lord Denning M.R.).

pp. 410-411.

SEW. 1972 ON THE LIBERATION OF APPELLATE JUDGES 453

that there was no evidence of ‘‘ calculation ” (interpreting Lord Devlin’s language here in a narrow literal sense).

On the narrow issue, whether the facts fell within Lord Devlin’s second category, Lord Denning M.R. and all members of the Court of Appeal left no doubt that in their view they did; though they treated it as only their secondary ground of decision. Assuming, that is, that Lord Devlin’s statement of the law was binding on them (which in their main ground they denied), they would still hold that the facts fell within the second category of exemplary damages permitted by Rookes v. Barnard. The defendants had persisted in uncorrected publication, calculating (as their lordships said, and as the trial court had said, and as also proved to be true) that the profits and royalties from this sensation-creating book, with its uncorrected libellous assertions, would exceed any damages awarded against them. This, they thought (as later did the House of Lords), sufficed to meet Lord Devlin’s category; there was no need to show an actual arithmetical calculation with pencil and paper.

This alone, of course, would have sufficed as a ground for dismissing the appeal. And the House later affirmed its decisive- aess.21 But all the members of the Court of Appeal were at great pains to subordinate it to their wider ground that the limits set on recovery of exemplary damages by Lord Devlin’s statement were not binding on the courts. All of them 22 dealt, first of all, and at length, with the wider question whether Lord Devlin’s statement bound them, adding the above narrow ground, only in case the House of Lords should reject the wider one. To this wider ground I immediately turn.

111. ISSUES INVOLVED IN THE COURT OF APPEAL’S WIDER GROUND THAT ROOKES u. BARNARD WAS DECIDED PER INCURIAM OF EARLIER

CONTRARY HOUSE OF LORDS DECISIONS All members of the Court of Appeal chose (as already noted) to place the main brunt of their argument on the per incuriam point. They said that the House of Lords’ endorsement of Lord Devlin’s expos6 of the law in Rookes v. Barnard in 1964 did not bind the court, because it ignored two House of Lords cases, I fu l ton v. Jones 23 and L e y v. Hamilton,24 which had approved exemplary damages beyond Lord Devlin’s limits. They asserted that Lord

2 1 The majo:ity called the aFpellant’s attempt to escape Lord Devlin’s second category a forlorn hope [1972] 1 All E.R. 801, 812. They stressed the importance of his “ considerations ” for the judge’s directions to the jury, even apart from his three exceptional categories (p. 816). Viscount Dilhorne, though dissenting as to the adequacy of the judge’s directions, agreed that the second category was applicable (at p. 852).

22 See resp. [1971] 2 All E.R. 187, Lord Denning at p. 200, Salmon L.J. at p. 208, Phillimore L.J. at p. 214.

23 [1910] A.C. 20. 24 [1935] 153 L.T. 384.


Devlin had said in 1964 that the House itself had never “ in any decision ” approved an award of ‘‘ exemplary ” damages, and was thus free to review the whole matter,25 when there were in fact the above two House of Lords cases approving such damages. The Rookes v. Barnard decision on “ exemplary ” damages was thus given per incuriam of those two cases. On this basis they claimed freedom to choose the law in these earlier overlooked cases rather than that in Rookes v. Barnard; they indeed advised trial judges to instruct juries on the same basis.

The line oE thought thus vigorously embraced by the Court had been canvassed in Australian cases which refused to follow Lord Devlin, notably Uren v. Pairfax 2o and Consolidated Press v. U ~ e n , ~ ~ though those decisions certainly did not purport to rest on the per incuriam ground. As used by the Court of Appeal against the House of Lords, this wider ground turned on four distinct issues :

(1) Was there a House of Lords rule of practice in 1964, analogous to the Young case 2s rule in the Court of Appeal, under which the House was not bound by its own decision given per incuriam of its own earlier decisions ?

(2) Assuming that the House had such a rule, could an inferior court also use it to free itself of the authority of the House’s decision given per incuriam ?

(3) Was it in fact true that the two House of Lords cases vouched against Rookes v. Barnard were contrary to that decision and were overlooked per incuriam ? The members of the Court of Appeal either assumed, or sought to prove, affirmative answers to all the above three questions; a negative answer on any one would defeat their wider ground. Yet a close analysis will suggest that the answers to most of them are in the negative.

In relation to the future work, both of the House of Lords and

25 Rookes v. Barnard [1964] A.C. 1129, 1221; [1964] 2 W.L.R. 269, 324; rig641 1 ~ i i E.R. 367, 407.

26 (1967j117 C.L.R. 118; [1967] A.L.R. 25; (1967) 40 A.L.J.R. 124. 27 [1969] 1 A.C. 590. The hare of per incuriam was perhaps started by Mr.

Clive Evatt, Q.c., in the pair of Australian cases in which Mr. Uren was plaintiff: see Uren V. John Pa i r fa , etc. (1965) 83 W.N. (Pt. 2) 185 (N.S.W. Full Court) ; [1967] A.L.R. 25 (H.Ct., Full Court), Australian Consolidated Press Co. Ltd. v. Uren [1967] A.L.R. 54 (H.Ct.); [1969] 1 A.C. 590. See esp. Mr. Evatt’s argument as to Hulton’s and Ley’s cases in [1969] 1 A.C. a t pp. 612-616. While the Privy Council took note that the per incuriam submission might some time arise in England, it refrained from passing upon it (pp. 640-641). Opposing senior counsel, Mr. Anthony Larkins, Q.C. (now Larkins J. of tk N.S.W.,, Supreme Court), sought to relate Lord Atkin’s use of the term punitive to th: usage in the fir:! six editions of Salmond on Torts, in which “ aggravated damages were equated. See e.g. 5th ed. at pp. 129-130. H e also observed that Ley’s case was cited in Salrnond’s 7th edition (1936) to support the editor’s view that the damages there were ib solatiurn and not a punishment. And see alsotki~l2th edition bv Heuston. PP. 709-710.

and “ punitive

28 Y&g v. &%ol Aeroplane Co. [1944] E.B. 718; [1944] 2 All E.R. 293; (1944) 171 L.T. 113.

SEPT. 1972 ON THE LIBERATION OF APPELLATE JUDGES 455

the Court of Appeal, a fourth question arises concerning the scope of the per incuriam doctrine, with which it is also convenient to deal at this point:

(4) Assuming that the House formerly had a per incuriam rule, as above, what was the effect on it of the Practice Statement of 1966 allowing the House to depart from its own decisions ?

IV. FIRST PER INCURIAM ISSUE: DID THE HOUSE OF LORDS HAVE A PER INCURIAM RULE IN 1964 ?

The Court of Appeal itself, of course, only in the Y o u n g case in 1944, tightened up the shackles of precedent on itself." It there a e m e d that it was bound by its own or co-ordinate decisions, unless inter alia those decisions were given per incuriam. The term per incuriam has, of course, shown itself fertile in ambiguities, and even on its declared face in 1944, it covered rather disparate matters. The incuria alleged to be involved in Broome v. Cassell is of prior contrary decisions of the court concerned or of a court co-ordinate to it. And as applied to such decisions, the notion has shown itself particularly slippery, and is, perhaps, a nice example of a category of concealed multiple reference.30

Whichever reference be correct, however, it is reasonably clear that per incuriam impeachment does not embrace precedents where all that has happened is that the earlier case was considered by the precedent court, but was given a meaning which the instant court thinks wrong, or even absurd. And this boundary line will later be seen to be vital in determining the third per incuriam issue, namely, whether Lord Devlin's statement was per incuriam of two earlier House of Lords cases. Conceivably, per incuriam could be extended to cover some degree of gross and egregious error in interpreting an earlier case: but only, I believe, by destroying even the modicum of determinacy that still attaches to the notion of binding precedent.

Whatever the scope of the per incuriam exception for prior overlooked cases, it was still in doubt,81 right until the Practice Statement of 1966, whether the House of Lords recognised such a rule for itself in relation to its own decisions which, from the London Tramways case in 1898 32 to the Statement of 1966, were theore- tically binding on itself. Moreover, as will later be suggested, since the 1966 Statement freed the House generally to depart from

29 Ibid. 80 The central doubt is as to whose view is decisive on the point whether the

earlier precedent was contrary to the later one. See Stone, Legal S y s t e m and Lawyers ' Reasonings (1965), pp. 235-300.

81 So far as is known, the House o f Lords had never committed itself to such an exception, though it is easy to argue that, in common sense, there must have been an exception, at any rate for incuria-of a statute in force. Incuria of earlier decisions is a different matter: but the Court of Appeal assumed there was a House rule covering this also.

82 London T r a m w a y s v. L.C.C. [1898] A.C. 375.


its own prior decisions, this doubt is now never likely to be fully removed. A forum thus free deliberately to depart from its prior decisions can scarcely need such an exception to permit i t to do so by inadvertence.

Yet i t was, ironically, a t this stage, that the majority of the House in Cassell v. Broome seemed to raise the possibility that, in appropriate circumstances, the per incuriam limb of the Y o u n g case rule might be used by the House itself in deciding whether to follow its own prior decisions. It admonished the Court of Appeal that in the court hierarchy each ‘‘ lower tier including the Court of Appeal ” must “ accept loyally the decisions of the higher tiers.” The Lord Chancellor went on: “ Where decisions mani- festly conflicted, Y o u n g v. Bristol Aeroplane c ~ . ~ ~ offered guidance t o each tier in matters affecting its own decisions.” 34

V. SECOND PER INCURIAM ISSUE : ASSUMING THE HOUSE DID HAVE ITS OWN PER INCURIAM RULE, CAN THE COURT OF APPEAL INVOKE

THIS TO IMPEACH A DECISION OF THE HOUSE ? The majority OI the House (and indeed the minority also) flatly rejected the Court of Appeal’s attempt to use the per incuriam exception to discredit, not one of that court’s own precedents, but that of the hierarchically superior House of Lords. The doctrine, they said in effect, directs a court’s penance for its own oversights; it cannot be used as a weapon against precedents of a higher tier.

While the House acted as if all this followed from the mere subordination of lower to higher courts, there are some things to be said, a t any rate in logic, on the other side.35 Yet, of course, even when logic does not compel, the practice of the House itself in insisting that the latest precedent be respected, may impose such a compulsion. And the House in Cassell v. Broome has now clearly ruled that even if a lower court regards the latest House of Lords decision as “ unworkable,” “ wrong,” or “ ultra vires,” or even given per incuriam of the House’s earlier decisions, the latest decision must still be followed.36 The per incuriam exception, said the House, is for each tier to apply on its own level. “ It does not entitle it to question considered decisions in the upper tiers with

33 Cited supra, n. 28. 34 [1975] 1 All E.R. at p. 610. Italics supplied. I have, for purposes of testing

the Court of Appeal’s positions, adopted the interpretation which would include the House in the phrase “ each tier.” In the light of the immediately preceding sentence, however, the phrase could be limited only to each tier which had a tier above i t ; which would, of course, say nothing at all about the House of Lords itself. The Lord Chancellor stressed that even the House approached its own power to depart with caution. See on this Jones v. Secretary of State [1972] 1 All E.R. 145, esp. at pp. 149-150, 154-155, 174, 196-197, discussed iflfra.

85 As to whether e.g. the Court of Appeal must disregard a statute because the House may have done so; or whether mere hierarchy compelled the court to prefer one House of Lords decision to another. Cf. Viscount Dilhorne in [1972] 1 All E.R. 601. 654. 36 Cited supra, n. 14 at p. 809.

457 SEW. 1972 ON THE LIBERATION OF APPELLATE JUDGES

the same freedom.” 37 To allow a lower court to question such a decision would produce “ unedifying disputes ” between the Court of Appeal and the House, and involve other judges in

VI. THIRD PER INCURIAM ISSUE: WERE THERE I N FACT T W O PRIOR HOUSE OF LORDS CASES APPROVING EXEMPLARY DAMAGES

IGNORED BY THE HOUSE IN ROOKES ‘u. BARNARD i’ Perhaps the most astonishing aspect of the Court of Appeal’s action in Broome v. Cassell is its flat assertion ,that the House had in Rookes v. Barnard overlooked two contrary House of Lords decisions. Lord Denning claimed roundly that it ‘‘ went against ” both L e y v. Hamilton30 and Hulton v. Jones.4o Salmon L.J. claimed dl that Hulton v. Jones “ implicitly,” and Ley v. Hamilton “ explicitly ” approved the award of exemplary damages outside Lord Devlin’s limits. Phillimore L. J., somewhat more cautiously, perhaps, relied only on Ley v. Hamilton as an overlooked case.42

Yet it is far from clear that Hulton v. Jones and Ley v. Hamilton were holdings on the range of permissible exemplary damages at all, as distinguished from holdings merely that jury awards in those cases not specified as “ exemplary ” were ‘‘ excessive ’’ in the particular cases. Both are open to the view that they were concerned only with “ compensatory ” The damages issue

5 7 Ibid. 38 The majority’s further point of uncertainty to litigants is not persuasive.

Assuming per incuriam, the uncertainty will be there whatever the lower court does.

so (1935) 153 L.T. 384. 40 [1910] A.C. 20. 5 1 Salmon L.J., [1971] 2 Q.B. 354, 390, [1971] 2 W.L.R. 853, 879; [1971] 2

All E.R. 1817, 208. Lord Denning’s attention is in [1971] 2 All E.R. 187, 199- 200, esp. 199.

5 2 19711 2 Q.B. 354, 397; [1971] 2 W.L.R. 853, 885; [1971] 2 All E.R. 187,

53 Many difficulties of theory, of course, affect both the pre-existing law. and the capital,, distinction zxpounded by $rd Devlin,,, between compensatory (including aggravated damages) and exemplary damages. These must be left for treatment elsewhere. In Rookes V. BaTpard, Lor! Devlin expressly reserved the matter of the diverse components of general damages. There are, he said, cases where damages are a t large, in the sense that you cannot hold the jury to sp:cific amount:: so that they may include in the “ general ” award elements of aggravated damages. Lord Devlin’s position throughout assumes that the compensatory damages may include an amount in respect of aggravated wrong; and he explained the following cases as merely cases of aggravated (but still compensatory) damages, cases of heavy awards such as: Tullidge v. W a d e (1769) 3 Wils. 18; Owen V. Reo [1934] All E.R.Rep. 734; Wil l iams v. Set t le [1960] 2 All E.R. 806. As to Loudon v. Ryder [1953] 1 All E.R. 741, on the other hand, Lord Devlin thought that the award of a separate amount for exemplary damages was unwarranted because award for the assault ,$I that case :!ready obviously included a proper (and so high) allowance for aggravated wrong that there was no room for an even larger additional m m as exemplary damages. The defendant had there trespassed on the property, in the course of a dispute concerning it, and beaten the woman plaintiff and dragged her down the steps.

For a fuller analysis and critique of the capital distinction above see Stone, ” Double Count and Double Talk: The End of Exemplary Damages? ”, forthcoming Australian Law Journal July 1972.

a13.


in Hulton v. Jones 44 was a minor one, and only Lord Loreburn referred to it, and in but general terms. As to whether the damages were excessive, he said that though the damages were heavy, there were in the case ‘‘ ingredients ” of “ recklessness or more than recklessness,” and that the jury was entitled to say that this kind of article was to be condemned, and the House would therefore not interfere.45 Neither the word ‘‘ exemplary ” nor any clear synonym was used even by Lord Loreburn, and the other three Lords concurred in only general terms.

The truth of the per incuriam charge, then, stands or falls on Ley v. Hamilton, of which the House’s decision was reported briefly in the Law Times.46 The report shows that that was an appeal in a case where there had been two distinct counts for libel in the trial below, but the jury had not been instructed to award separate damages for each count. The jury made one award for both, and the question on appeal was whether, in view of the judge’s failure to direct separate awards, the jury’s award was excessive and improper in relation to the facts.47

Lord Atkin, in a short speech dismissing the appeal, agreed with Scrutton L.J. in the court below on the damages issue.48 In libel and some other cases, he said illustratively, damages sometimes have to be at large, and you often cannot separate the element of aggravation from the element of ‘( real ” damage to the plaintiff. “ The ‘ punitive ’ element is not something which is or can be added to some known factor which is non-punitive.” 49

Now, the first point to be made as to Ley v. Hamilton is that Lord Devlin not only referred to Ley v. Hamilton, he also quoted the only relevant part of Lord Atkin’s speech as supporting his view and that of his brethren. So that strictly Ley v. Hamilton did not go per incuriam at all in Rookes v. B a r n a ~ d . ~ ~ Lord Devlin inferred that the term “ punitive ” (in quotation marks) as Lord Atkin there used it, should be read as ‘‘ so-called punitive.” So that the above-quoted sentence merely made the point that “ compensatory ” damages in respect of material losses may not in a libel action be separable off from ‘( aggravated ” elements which compensate for a sense of humiliation and outrage, and other painful consequences of the wrong.

The second point is that even if Lord Devlin’s interpretation of Lord Atkin’s use of the word “ punitive ’’ was mistaken, and even if i t were equally arguable that Lord Atkin intended (as the Court of Appeal insisted) to refer to “ exemplary ” damages in the sense

44 r i m 1 A.C. 20. ~-.~., 45 Ibid. at pp. 24-26. 46 (1935) 153 L.T. 384. 47 Ibid.’at p. 386. 4 8 Ibid. 4 9 Ibid. 59 [1964] A.C. 1129, 1230; [1964] 2 W.L.R. 269, 332; [1964] 1 All E.R. 367,

412-413.


now under debateY5l this would still not be a per hcuriam, as distinct from a possible legal, error by the House of For Phillimore L.J. to complain G3 that Lord Devlin failed to consider whether the House was bound by its decision in Ley’s case is to beg the question whether the House or the Court of Appeal was right: and that is not a question which the Court of Appeal is in a position to beg. And this would be so, even if we thought, with Salmon L.J.54 (as the present writer does not) that Lord Devlin’s rendering of Lord Atkin was so wrong that it was like “ suspending a three-ton truck on a cobweb,’’ a “ conjuring out of the air ”; or with Phillimore L. J. that Lord Devlin’s views on exemplary damages were “ poles apart ” from Lord at kin'^.^^

Even, therefore, if we assumed that the House had in 1964 a rule of per incuriam (which would be dubious), and that the Court of Appeal could use such a rule to discredit a House of Lords decision (which is certainly not the case), Rookes v. Barnard could not be said to have been decided per incuriam of Ley v. Hamilton.56

VII. FOURTH PER INCURIAM ISSUE: ASSUMING THE HOUSE OF LORDS FORMERLY HAD A PER INCURIAM RULE CONCERNING ITS OWN PRECEDENTS, WHAT WAS THE EFFECT ON IT OF THE PRACTICE STATEMENT OF 1966, ALLOWING THE HOUSE TO DEPART FROM ITS

OWN DECISIONS ? The Court of Appeal’s assertion that the Rookes v. Barnard decision on exemplary damages involved an unauthorised amend-

51 Though it is far more difficult than the Court of Appeal seemed aware. After all, Lord Atkin was saying that the damages he called I ‘ punitive ” cannot be assessed as a separate amount additional to the compensatory damages. Whereas the whole *trend of the‘pase law is ,fy distinct assessment of the exemplary, as distinct from the aggravated, component of compensatory damages, the jury taking into account any amount granted for the latter in fixing the total damages, including (if any) the exemplary damages.

52 So also, as to whether Lord Devlin or the Court of Appeal was right in their respective understanding:, of why Lord Atkin used quotation marks around the words “ real ” and

53 [1971] 2 Q.B. 354, 397; [El711 2 W.L.R. 853, 885; [1971] 2 All E.R. 187, 213. 54 Ibid. at pp. 390, 879 and 207-208 respectively. 5 5 As Lord Denning himself, indeed, assumed in saying that the House may have

“ misunderstood the Ley case ” (ibid. at pp. 381, 199 and 870 respectively). I add that Lord Atkin i:, Ley’s case agreed ( (1935) 153 L.T. 384, 386) I ‘ in every possible particular with the material part of Scrutton L.J.’s dissent in Ley’s case ( (1934) 151 L.T. 360 (C.A.) ). This dissent in no way bore on “ exemplary damages.” Nor did the majority judgments, except as to one ambiguous comparison of the amount with a penal fine. (See Greer L.J., (1934) 151 L.T. a t p. 369).

56 Cf. Lord Hailsham in Cassell V. B r o o m [1972] 1 All E.R. at p: 809. ‘The House thus rather oversimplififP the per incuriam issue by concentrating SO much on the “ constitutional And it is also worth recording that the facts in Ley’s case were such that, had it been decided after Rookes v. Barnard, i t would have fallen within Lord Devlin’s second exreption permitting exemplary damages. Lord Atkin stressed that the defendant had there published the libel “ to deprive the plaintiff of the pxrticular business and secure it for the defendant.” See (1935) 153 L.T. 384, 386.

punitive.”

point of hierarchy.

460 THE MODERN LAW REVIEW V O L . 35

ment of “ the common law ” 57 depended, and (as we have already seen) depended in vain, on the per incuriam point. To press the point in the circumstances of Broome v. Cassell, the court raised still another interesting new issue concerning the per incuriam doctrine. This was that that doctrine applied in 1964 when the House regarded itself as bound by its own precedents under the London Tramways case,58 even though the House had since, by the Practice Statement of 1966, declared itself free to depart from its own decisions when i t considers i t “ right ” to do

Were the members of the Court thus saying that if Rookes v. Barnard had arisen after the 1966 Statement, they would not have objected that Lord Devlin’s formulation could be ignored as decided per incuriant of earlier decisions (presumably because the 1966 Statement removed the objection to the House’s exercise of lawmaking power)? Salmon L.J. a t least seemed to be saying precisely this. “ The legislature,” he said, “ and possibly since 1966, the House of Lords, could abolish exemplary damages. They have not done so.” 6Q

If this were so, then, regardless of outcome for the law of exemplary damages, the whole issue of the status of House of Lords decisions taken per incuriam, would now be obsolescent, if not obsolete. On the whole, this seems correct on principle, subject perhaps to some refinements. As regards the House’s power to seek the best instant decision, whatever its prior decisions, it can scarcely be decisive after 1966 whether i t does this by ignoring an earlier decision, or by overruling it.61

While p e r incuriam may thus have become of mere antiquarian interest for the House, the present aspect of it still has potential importance in relation to some matters close to Lord Denning’s heart. If the Court of Appeal itself came, as Lord Denning desires,62 to depart from its decisions, the per incuriam rule would presumably

57 [1971] 2 Q.B. 354, 380-381; [1971] 2 W.L.R. 853, 869-870; [1971] 2 All E.R. 187,i98-199.

5 8 [1898] A.C. 375. 59 Both Salmon L.J. and Ph,i!limore L.J;, were careful to stress that the date

of the House’s purported legislative activity in Rookes V. Barnard was 1964, when the House under the London Tramways case rule was still ‘‘ absolutely bound by its own decisions.’’ 19711 2 Q.B. 354, 384, 391, 396; [1971] 2 W.L.R. 853, 873, 880, 885; [1971\ 2 All E.R. 187, 202, 208, 212. And Lord Denning made the same point more casually: I ‘ I t was not open to the House in 1964 to go against those decisions.’’ ( Ibid. a t pp. 387, 870, and 199 respectively.) Cit. supra n. 53, at pp. 387, 856, and 205 respectively.

61 It is just conceivable perhaps that the considerations in an overlooked precedent would make !,he d i e c e petween the House holding or no t holding tha t it w a s ” right t o depart from another precedent. But this would not turn on any binding force attributed to the overlooked precedent. See, later than Bzoome v. Cassell, Barrington v. L e e [1971] 3 W.L.R. 963 (C.A.), Lord Denning at p. 965: “ W e no longer look to see if the case can be brought within the exceptions stated in Young V. Bristol Aeroplane Co. L t d . [1944] K.B. 718.” But his brethren, Edmund Davies L.J. at p. 974 and Stephenson L.J. at p. 977, disagreed. And see Stone, article cited supra n. 4.

62 See supra text at notes 7 et sep.


also cease to apply to cases overlooking decisions of the Court of Appeal itself. With the Court of Appeal, as with the House, once it is free to overrule its earlier precedent, it is straining at a gnat while swallowing a camel to say that mere oversight of such an earlier precedent would discredit the Court's decision. I shall consider, in the concluding sections, the bearing of the recent House of Lords deliverances in Jones' case,63 on its freedom to overrule its own decisions.

VIII. THE COURT OF APPEAL AND JUDICIAL LAWMAKING Lord Denning seemed, at moments, to be saying that the Lords had no power to overrule their earlier precedents, whether before or even after 1966, at any rate when these represented, as he thought the pre-1964 cases on exemplary damages did, " well- settled " '' common law " doctrines.G4 He certainly was not careful to limit his attack on the House's " law-making " to the period before the 1966 Practice Statement.

He thoughtYss for example, that only the legislature and not the House could '' overthrow " such doctrines as exemplary damages in 1964 and this was quite independent of his argument on per incuriam, and it was also independent of his criticisms of Lord Devlin's views as bad and illogical in terms of policy. The clear implication that appellate judges may not, in the course of their tasks, modify the common law, sits strangely on lips of one so proud of the creative judicial role.

the vehemence of the other two Lords Justices' attack on Rookes v. Barnard sug- gests that they too saw the matter as one the crux of which was in the nature of judicial power rather than relative dates. More important, however, than the personal incongruities is the fact that all the members of the court seem to identify the power to alter and mould the existing common law exclusively with the power to depart from precedents. They appeared to ignore, both in their criticisms of the House, and in choosing their own course for making these criticisms effective, what is now so widely known about the sources of movement and change in the common law. They ignored, above all, the areas for judicial choice-making built into the theory

63 [1972] 1 All E.R. 146. 04 Cit . supra n. 53 a t pp. 380-381, 870, and 199 respectively. 65 See [1971] 2 All E.R. 187, 199-200, esp. 199. 66 Salmon L.J. was more restrained.

Though their individual positions varied

H e granted that " possibly " the House could since 1966 legislate the abolition of exemplary damages just as the legislature could. (See Salmon L.J. [1971] 2 W.L.R. 853, 876; [1971] 2 All E.R. 187, 205.) Phillimore L.J. was less clear. H e object$ to the Hemp " clearly making new law," involving departures from the common law which produced different versions of the common law in other common law countries which reject the innovation. (He added, mysteriously, that the name " common law " referred to the " law of the Pope " commonly applied by " all the countries of Western Europe ") (mt pp. 884 and 212 respectively).


of the ratio decidendi for almost any case, including Rookes v. Barnard and the cases which they asserted to conflict with Rookes v. Barnard.

IX. WAS THE RATIO DECIDENDI OF THE ROOKES v. BARNARD DECISION AS TO EXEMPLARY DAMAGES BINDING FOR THE FACTS

OF BROOME v. CASSELL ? It would, I believe, have been open to the Court of Appeal in Broome v. Cassell to proceed otherwise. They could have examined how far Lord Devlin’s statement on exemplary damages in Rookes v. Barnard, granting it the full weight of a considered statement in the House, need necessarily be regarded by either the House of Lords or itself as part of the binding ratio of the decision in that case.”? No member of the Court of Appeal referred to this matter at all.

The mere fact, after all, that Lord Devlin and his colleagues in Rookes v. Barnard made certain propositions about exemplary damages in general, could not in itself, in either the theory or the practice o€ precedent, warrant these ipsissima verba as constituting part of the ratio decidendi of Rookes v. Barnard, binding for the facts of Broome v. Cassell. The facts of the former case, for example, concerned intimidation, industrial relations and recovery for breach of contract, the facts of the latter involved libel. It will be objected immediately, of course, that this simple truth cannot limit so deliberate and unanimous a pronouncement of the House of Lords as that now in question. Yet the House of Lords itself has recently provided a striking answer to any such objection in the manner in which the House, in Conway v. Rimmer,G8 disposed of Viscount Simon L.C.’s statement in Duncan v. Cammell, Laird G9 of the law on Crown privilege from producing documents. Viscount Simon L.C., speaking for an impressive unanimous House, including Lords Thankerton, Russell of Killowen, Clauson, Macmillan, Wright and Porter, affirmed in Duncan’s case that if the Crown asserts that production of a document would be ‘‘ injurious to the public interest,” or that secrecy of a class of documents is ‘‘ necessary for the proper conduct of the public service,” that assertion is final and conclusive, and the document need not be produced. This was a rather unlimited proposition. The House, nevertheless, found it

6‘ Plaintiff’s counsel in Austral ian Consolidated Press Pty. Ltd. v. Uren [1969] 1 A.C. 590, 596, 612, 014, 615, argued that, on the exemplary damages point, the d i o den’dendi of Rookes v. Ba771urd was limited to intimidation, so that for the instant libel case, Lord Devlin’s statement was obiter. The Privy Council not only noted this point, without deciding it, but ventilated the idea that in Lord Devlin’s formulation, libel cases constituted a category of their own, especially apt for exemplary damages, and not subject to the limits of his better known two categories. See [1969] 1 A.C. at p. 639, invoking Lord Devlin’s language in the Rookes case 19641 A.C. at p. 1127, and Mayne and McGregor on Damages (12th ed., 1961\, pp. 196-197, in support.

$8 [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874. 69 [1942] A.C. 624.


possible, in Conway v. Rimmer in 1968 (that is, after the 1966 Practice Statement) to sweep the proposition aside without “ departing from it.” 70

What they rather said was that, however solemn and unanimous Viscount Simon’s formulation, and however wide his intention, the House was dealing in Duncan’s case with naval documents about submarines in wartime; while they were now dealing in Conway V. R i m m e r with police reports. H e was dealing with centralised government operations, t hey were dealing with local government. And they pointed to half-a-dozen other diflerentiae of this kind.71 Why was it not open to the Court of Appeal to emulate the House’s own recent model ?

The failure of the Court of Appeal to discuss in Broome V. Cassell what the relevant ratio decidendi of Rookes V. Barnard might be, is the more surprising, since i t was raised by counsel in Australian Consolidated Press v. The majority of the Lords in Cassell v. Broome itself seemed to admit that the mere intention of the precedent judge to state a legal rule, though relevant to determining the ratio, is not in itself conclusive; in other words, that dictum and ratio decidendi still have to be distinguished. For they went on to suggest that the correct way to seek a review of the law should be the use of the ‘‘ leap-frogging procedure ” in a case ‘‘ involving the ratio decidendi of Rookes v. Barnard.” 73

This kind of non-recall of appellate creativeness, in a judge as activist as Lord Denning, remains a puzzle. It is also rather inconsistent in mood with his positions in recent cases that the Court of Appeal should be free to decide what the law is, without being hamstrung by its earlier decisions. It is even tempting, in the light oE this, to speculate whether Lord Denning’s judgment in Broome v. Cassell was not a quixotic reaction to his very lack of success hitherto in initiatives to liberate the Court of Appeal from

70 [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874. Salmon L.J. did draw an analogy from Conway V. R i m m e r as to the rejection of the decision by Commonwealth courts, but not on the present point. See [1971] 2 Q.B. 354, 391; [1971] 2 W.L.R. 853, 880; [1971] 2 All E.R. 187, 208. H e even reduced,,Viscount Simon’s unanimously approved statement there to a mere “ dictum (ibid.) ; but he did not test whether Lord Devlin’s statement could be similarly reduced.

7 1 See rn? detailed flpalysis of these dfflerentiae in terms both of the “ material facts and the rule propounded methods of seeking the ratio, in Julius Stone, ‘‘ 1966 And All That . . .” (1969) 69 Columbia L.R. 1162, esp.

This is no less so if we see the ratio as the rule propounded which is necessary to the holding on the facts. See Stone, Legal S y s t e m and Lawyers’ Reasonings (1964), pp. 267-280, esp. 278-280. On the other hand, if that relation requires only that the rule propounded be a possible reason, and not t h e necessary reason, to explain the decision, there would be more difficulty in questioning its force over its full range. Obviously, Lord Devlin’s propositions could explain the holding. Yet the court would have had ample ground to canvass before reaching that hypothetical difficulty in its bid to persuade the House to review Lord Devlin’s wide language

Cf. Viscount Dilhorne, ibid. a t p . 854.

1171-1182. 72 [1969] 1 A.C. 590, 596.

73 Per Viscount Hailsham in [1972] 1 All E.R. 801, 807, 809.


the Young case rule. He might be saying, as it were, to his more “ conservative ” brethren: “ Very well, but you shall not have it both ways. If the Court of Appeal is to be hamstrung by its own prior decisions, then the House of Lords must be regarded as similarly hamstrung, at any rate before 1966.”

X. RESPONSE OF THE HOUSE OF LORDS TO THE CHALLENGE TO ITS AUTHORITY

So directly did the Court of Appeal’s stress on the per incuriain doctrine raise the question of power, and so sharply did the House respond to this, that all the Lords, with the possible exception of Lord Dilhorne, gave central attention to it as what they called “ the constitutional question.” 74 It was presumably on this account that (as The Times reporter observed) the House consisted “ exceptionally of seven Lords of Appeal.” 75 Lords Dilhorne, Wilberforce and Diplock dissented in result; but they took care to concur (the first half-heartedly, the second “ wholeheartedly ”) on this constitutional question of the relation of the Court of Appeal to the House of Lords.

The Lord Chancellor, speaking for the majority, thought they had need to consider “ with studied moderation,” the propriety and desirability of the Court of Appeal’s “ unusual course.” 76

What followed can be called ‘‘ studied moderation ” only by a combination of British and judicial understatement. First, said the majority, by going beyond what was needful for deciding the case, or even drawing attention to the need for the House to review the matter when a case should arise ‘‘ involving the ratio decidendi of Rookes v. Barnard,” the Court of Appeal had unnecessarily involved the House and the parties in thirteen days of hearing in the House, and the loser with heavy costs of this hearing.17 Secondly, the court had gratuitously advised trial judges “ to ignore House of Lords decisions,” and embarrassed them into having to “ take sides in an unedifying dispute ” between the Court of Appeal and the Thirdly, the effect of this advice on future litigants was to leave them is chaos and uncertainty until the time when one of them should have pressed his suit through to the House of Lords.?O Fourthly, it was necessary that the Court of Appeal, along with other lower courts in the hierarchy, “ accept loyally the decisions of the higher courts.” A court’s freedom to question its own decisions under the Young case rule does not “ entitle it to

74 See [1972] 1 All E.R. 801, 809 (Lord Hailsham), 841 (Lord Reid), 843. (Lord Morris), 859 (Lord Wilberforce), 874 (Lord Diplock). But Bee Viscount Dilhorne at p. 854.

75 The Times, February 24, 1972. 76 [i9721 1 ~ i i E.R. 801, 809. 77 Ibid. at pp. 807-808, 809. 78 Ibid. at p. 809. 7 9 Ibid. 8 0 I b i d .


question considered decisions in the upper tiers with the same freedom.” And the Lord Chancellor hoped, ominously, that “ it would never be necessary ” to make this last point again.82

XI. RESPONSE OF THE HOUSE TO THE COURT OF APPEAL’S EFFORTS TO ENSURE RECONSIDERATION OF THE RULES AS TO EXEMPLARY

DAMAGES In this assertion of its hierarchical authority, the merits of the issue as to damages raised by the Court of Appeal were not entirely neglected. They were, however, incidental and grudgingly short of any full review; and most regrettable of all, they leave the law in even greater uncertainty than that resulting from the Court of Appeal’s ‘‘ unusual course,” which the Lord Chancellor and all the majority judges and even two of the dissenting Lords, joined in rebuking.

This may seem a somewhat stern assessment; but a close view of the speeches unfortunately supports it.

First, the majority (as already seen) rejected squarely the Court of Appeal charges that Lord Devlin’s statement in Rookes v. Barnard was per incuriam and ultra vires and that it was unwork,able and that trial judges should follow the law as it was before Rookes v. Barnard.

Secondly, the essence of the Devlin doctrine, according to the Lord Chancellor, was that “ exemplary ” damages (he used the term “ punitive ” as a synonym here) are, if they are ‘‘ ever permissible,” discretionary, and required the jury to be warned not to resort to them ‘‘ unless satisfied that a purely compensatory award was inadequate.” 83 In other words, “ aggravated damages could and should in every case take care of the exemplary element ” and (apart from the exceptional ‘‘ categories ”) the jury should be neither encouraged nor allowed to award more than such compensatory ‘‘ aggravated ” damages ‘‘ simply to give effect to feelings of indignation.” 84 The use of “ punitive ” to mean (‘ exemplary ” followed by the statement (at least implied) that “ exemplary ” damages are already included within ‘‘ aggravated ” damages, when these are made part of ‘‘ compensatory ” damages, further redarkens the deep terminological confusion which Lord Devlin had tried to lighten.

Thirdly, however, the Lord Chancellor deliberately raised new doubts about Lord Devlin’s exceptional categories. But these were doubts in the opposite direction to the Court of Appeal’s. The

81 Ib id . 82 Ibid. 83 Ib id . at p. 815. 84 Ib id . at DD. 828-829.

It must be left for consideration

84a See Sto’ne, ‘‘ Double Count and Double Talk: The End of Exemplary Damages?” forthmming Australian L a w Journal, July 1972, esp. Section8 111-IV, and VII-IX.


Court of Appeal wanted to reject them in the sense that the limits on the situations in which exemplary damages could be awarded should be removed, so that this range should not be artificially restricted. The Lord Chancellor, however, questioned whether such damages should ever at all be awarded.84b He thought Lord Devlin’s statement might even “ increase its value ” if his ‘‘ three categories ” were wholly “ rejected.” And clearly he meant by this that ‘‘ exemplary ” awards should never be permissible.86 After the Court of Appeal decision, litigants and lawyers had to guess between Lord Devlin’s view limiting exemplary damages to his three categories, and the court’s view that there were no such limits. The House, however, has now added a third available guess, namely, that exemplary damages, beyond what are embraced in “ aggravated ” damages, can never be awarded.

Fourthly, having thus raised this third possibility that the House might in the future altogether ST exclude awards of “ exemp lary ” damages, the Lord Chancellor then proceeded to damp it down. He explained (without any immediate dissent on his own part) that Lord Devlin had preserved the exceptional categories, partly because he felt bound by authority to do so; and partly because he felt that in those categories, besides the elements of injuri4 for which ‘‘ aggravated ” damages provide compensation, there was need for “ an additional sum , . . to vindicate the strength of the law and act as a supplement to its strictly penal provisions.” 88

Fifthly, the Lord Chancellor injected some additional uncertainty into the House’s future course by the elements which he included in compensatory “ aggravated ” damages. He included among these not only loss of reputation, injured feelings and outraged morality, but also what was necessary ‘‘ to enable a plaintiff to protect himself against future calumny or outrage of a similar kind.” This must refer to damages awarded as a deterrent to the defendant and others like him, and it smacks more of the ‘‘ exemplary ” (“ punitive ” in this sense) than of compensation. In so far as juries can in the future, in all kinds of cases, include an amount for such deterrence in their ‘‘ compensatory ” award, the total abolition of nominally ‘‘ exemplary ” damages could be abolition in a formal sense only.

Sixthly, having roundly asserted the ‘‘ workability ” of Lord Devlin’s view, rejecting the Court of Appeal’s contrary conten-

84b This question is the main concern of ,the article last cited. 85 Ib id . at p. 829. Presumably he meant “ first two categories,” since the House

could scarcely prevent legislative provision for exemplary damages in the third category.

86 Juries should not go beyF,nd as generous a solatiurn by way of “ aggravated ” compensatory damages, as was required by the iltjuria,’’ however indignant they felt ([1972] 1 All E.R. at p. 829).

87 This, of course, despite the Lord Chancellor’s sweeping language, could scarcely be carried out as to Lord Devlin’s thid category.

88 [1972] 1 All E.R. at p. 829. 89 l b id .

See n. 85 supra.


tion why it could not work. He said:

the Lord Chancellor for the majority then ventured a reason

“ The difficulty [is] . . . in working a system of punitive (scil. exemplary) damages alongside the system of aggravated and compensatory damage . . . [because] the thinking under- lying the two systems was as incompatible as oil and vinegar, the one based on what the plaintiff ought t o receive, the other based on what 12 reasonable but otherwise uninstructed men and women thought the defendant ought t o pay.” (Italics supplied.) 91

Seventhly, while the Lords expressed themselves as “ not com- plaining ” of the Court of Appeal’s view that ‘‘ Rookes V. Barnard clearly needed reconsideration by the House,” they gave a t that point only two reasons for not c~mplaining.~~ One was because of its poor ‘‘ reception ” by other Commonwealth courts. Yet, of course, Commonwealth court criticisms would point to removal of Lord Devlin’s limits on the award of ‘‘ exemplary ” damages; whereas the majority (subject to the above puzzles) seemed to favour their total abolition. Their second reason was that “ many of Lord Devlin’s statements may have been misunderstood ” 93 : but they did not specify the which or the how of these misunderstandings.

This second reason hints at the eighth and final item which the House left by way of clues for litigants, lawyers and judges agonising as to the course it might yet take as to the range of exemplary damages. This final item is that the Lord Chancellor said (rather early in his speech) that, instead of the ‘‘ unusual course ’’ actually followed, the Court of Appeal could suggest c c so soon as a case of f i s t instance arose involving the ratio decidendi of Rookes v. Barnard, the parties concerned might use the leap-frogging procedure now available ” (italics supplied).94 This implies, as already noted, a view that not the whole of what Lord Devlin said, but only that part of it which represents the ratio decidendi of Rookes v. Barnard is binding, even on courts below the House of Lords. And it implies that what this part is, is still to be determined.

XII. TACTICS AND STRATEGY FOR JUDICIAL LIBERATION Clearly, the Court of Appeal’s demand that the House make a fresh statement of the law of exemplary damages, as it stood before Rookes v. Barnard, was defeated in Broome v. Cassell. I f the court thought that the very drama of a Court of Appeal telling the House of Lords that one of its decisions was given per incuriam would best promise such attention and revision, they were over-sanguine for rather clear reasons.

90 In the terms that numerous judges had already “ worked it ,” and of Widgery J.’s exposition in Manson’s case [1965] 1 W.L.R. 1038; [1965] 2 All E.R. 954.

91 [1972] 1 All E.R. a t p. 829. 92 Ibid. a t p. 821. 93 Ibid. 94 Ibid. at p. 809.


First, the same drama which secured the House’s attention also, by its challenge to power, invited the House to meet it (as i t mostly did) by a simple assertion of power.

Secondly, even if the controversy had not risen to this heat, the effectiveness of the per incuriam approach would still have depended on whether the situation did meet the requirements for discrediting a decision in terms of that rule. We have seen that, for more than one reason, Lord Devlin’s formulation could not be said to have been per incuriam of either of the earlier House of Lords cases invoked.

Thirdly, as soon as drama turned into power struggle, any tactical advantage of using per incuriam, was almost certain to be lost by the fact that Broome v. Cassell was so strategically unfortu- nate a case in which to seek it. For Broome v. Cassell fell by common agreement of the judges concerned into the second exceptional category for which Lord Devlin allowed exemplary damages.

Fourthly (and far more serious than the above matters of personal embarrassment, frustration, and retort of particular judges), are the intellectual dangers resulting from this exchange for future cases between the two highest tiers of English courts. To focus thus on per incuriam, Lord Denning and his colleagues had to indulge the simplistic error that the House had no other means within the pre-1966 precedent system of overcoming one of its own prior decisions. They had to ignore the facts,= recently described by this writer, that in the sixty-eight years during which the House had been c c bound ” by its own decisions from the London Tramways case in 1898 to the 1966 Practice Statement, the inhibiting effect of the rule of that case on the House appears to be quite negligible. They also seemed to overlook that the creative steps taken to dispose of the binding force of Duncan v. Cammell Laird for the facts in Conway v. Rimmer, even after 1966, were by the sophisticated use of traditional pre-1966 techniques, rather than by overruling.D6

Fifthly, it is a sad paradox that in Broome v. Cassell, a case decided a t a point of time when issues of judicial policy choices had begun to stir into open and fruitful debate in the highest English courts, these should now have been re-obfuscated and re-confused behind a whole complex of unreal assumptions concerning the day- to-day appellate judicial process. Truths about appellate judgment already almost won, may now have to be struggled for anew. Not the least of these truths is that the contrast between cases where a court is bound or not bound by its own (and, indeed, even superior court) decisions, is not a contrast between mechanically compelled law application, and free creative law development. Even where a precedent in some sense is c c binding,” the question usually still remains, as Conway v. Rimmer eloquently showed, of fixing what it

95 See the survey in Julius Stone, article cited supra n. 71. 96 [1971] 2 Q.B. 354, 391; [1971] 2 W.L.R. 853, 880; [1971] 2 All E.R. 187,

200.

SEX“. 1972 ON THE LIBERATION OF APPELLATE JUDGES 469

is binding for, in relation to the instant case.g7 The members of the Court of Appeal overlooked the traditional techniques available to themselves, as well as the House, for raising the questions of law and policy which they wished to raise about Rookes v. Barnard. They ignored contemporary knowledge of the methods by which the common law has constantly changed within the precedent system. In terms of judicial tactics, this approached disastrous comedy. In terms of the prospects of steadier and wiser growth in the common law, it approached tragedy. And in terms of understanding of the processes of legal growth in England, it threatens a setback of major dimensi~ns.~S

For all that was really clear in Broome’s case from the opposed analyses of the cases there before the judges, when attention is given to holdings, as well as dicta, and to the ambiguous use of terms such as “ punitive ” and “ solatium,” is that what the authorities amounted to-certainly at the House of Lords level-does not lend itself to clean-cut characterisation as “ correct ” or ‘‘ incorrect.”

What the Privy Council did in the Uren case showed some awareness of this truth. They observed in their conclusion that the issue before them (as to whether the High Court of Australia was compelled to adopt the limits set by Lord Devlin for recovery of exemplary damages) is (‘ an issue which is resolved not so much by asserting that reasoning can lead only to one conclusion, but rather by coming to a decision as to what the policy of the law should be.” O9

XIII. TOWARDS A GUIDE FOR “DEPARTING” AFTER THE JONES CASE

The House of Lords decision in Jones’ case, in December 1971, seems at first sight to offer policy guidelines for the House’s use of its liberty to ‘‘ depart.”

97 See Stone, article cited supra n. 71. a t pp. 1162-1202, esp. 1169-1188. 9s Even Windeyer J.’s very perceptive judgment had culminated disappointingly

in the observation;, that while the House of Lords could overthrow established law for England by declaring it to be mistaken,” the High Court has “ a duty to abide by the law that we have inherited, and having in mind the way it has been declared here ” ( U r e n v. John F a i ~ f a z Pty. Ltd. [1967] A.L.R. 25, 44). The return to a kind of “ declaratory ” theory of appellate choice- making goes rather naturally with the absence of inquiry (with this as with other members of the High Court) about the relation of the ‘‘ declared ” law to contemporary conditions of Australian society. I t certainly fell short of Sir Victor’s vision in Skel ton v. Collins (1966) 39 A.L.J.R. 124, of a High Court which should never be deterred from restating or exposing the true state of the law. In the Privy Council ([1969] 1 A.C. 590, 597-611), counsel for the defendants, Mr. Anthony Larkins, Q.C. (now Larkins J. of the Supreme Court of New South Wales) carried the meticulous search for the correct meaning of all the cases to extremes. The Privy Council (at p. 634) declined to commit itself on what it called “ t b logic of this approach.”

After deciding to convene a full House of seven Lords for the Jones case, the House of Lords decided further to add a new Judicial Direction 12 (1) to its directions for preparation of cases (see Cases

99 [1969] 1 A.C. at p. 642. 1 [1972] 1 All E.R. at p. 146.


The House of Lords was then met, shortly before the opinions in Cussell%. Broome,, by the need to confront overtly related questions of judicial policy choices. In the Jones case the House considered what criteria were relevant t o determine when they would exercise their liberty to “ depart ’’ from a disapproved decision under the 1966 Statement. Four Lords (Wilberforce, Dilhorne, Diplock and Simon) were clear that the House’s 1967 decision in Dowling’s case was wrong and, of these, three thought it should be departed from under the 1966 Statement, but one (Lord Simon) thought it should not. The remaining three Lords (Reid, Morris and Pearson) thought the Dowling decision was right; but in view of the close division, they also addressed themselves to the question whether, if it were wrong, they should depart from it. They indicated clearly enough that they should not. In these circumstances, as Lord Diplock regretfully ~bse rved ,~ since only three Lords favoured overruling Dowling’s case, even though four thought.it to be wrong, Dowling’s case was not overruled. All the Lords seemed agreed on the cardinal point, apparent perhaps from the 1966 Statement itself, that the mere fmding that an earlier decision is wrong, even by a presently unanimous House, would not in itself warrant departing from it.

Does any other guidance for the House’s 1966 self-liberation emerge from Jones’ case, apart from this cardinal point that it is not always “ right ’) to depart from a decision merely because i t is now agreed to be wrong? sought t o balance its regard for precedent as a “ foundation upon which to decide what is the law and its application to individual cases,” affording a degree of certainty and orderly development, against ‘‘ too rigid adherence to precedent,” leading to injustice in a particular case, and hampering “ proper development of the law.” The Practice Statement referred in particular to ‘‘ the danger of disturbing retrospectively )’ contracts, settlements of property and fiscal arrangements and “ the especial need for certainty as to the criminal law.” To the items sheltered from overruling, a majority may have now added, in Lord Reid’s words, “ questions of construction of statutes or other documents,” mainly on the practical ground that often i t ‘‘ cannot be said positively that one construction is right and the other wrong.”

The 1966 Statement itself

(Pmctice Direction) [1971] 2 All E.R. 159.) Litigants invoking the House’s power to “ depart ” must state this clearly in a separate paragraph, drawing special attent,ion to i t , and restating it as one of the ‘‘ Reasons ” for appeal. The inference that a full House will sit in such cases seems confirmed by the fact that Cussell v. Bfoome, in February 1972, was also heard by seven Lords. See the discussion in L. Blom-Cooper and G. Drewry, Final A p p e a l : A Study of the House of Lords in its Judicial C t p a c i t y (forthcoming September 1972, Clsrendon Press), of which the authors kindness has permitted me to see proofs. And see supra p a s s i m .

2 [1967] 1 All E.R. 210. 3 [1972] 1 All E.R. at p. 189. 4 Quoted in full in [1972] 1 All E.R. 149-149. 5 Ibid. at p. 149.

&PI‘. 1972 ON THE LIBERATION OF APPELLATE JUDGES 471

As a more general guide, Lord Reid also did offer the opinion that “ the typical case for reconsidering an old decision is where some broad issue is involved.’’ At least three of the Lords seemed not to go with this, and it is not clear which of the others (apart perhaps from Lord Wilberforce) did. For Lord Reid himself, indeed, there is some incongruity between this general guide and his reason for sheltering questions of construction, namely, that there is often room for conflicting opinions about them. For this is also surely the case for some of the broadest issues of the common law. Certainly a number of notable cases in the House since the 1966 Statement are of this nature, cases, for instance, concerning State privilege for documents in Conway v. Rimmer,7 concerning the duty of care necessary to base recovery in negligence in Home Ofice V. Dorset Yacht Co.,,* concerning liability for torts committed abroad in Boys v. Chaplin,Q and concerning “ aggravated ” and “ exemplary damages ” in Cassell v. Broome.1°

What seems to emerge from all this may perhaps be stated for the time being as follows. The House’s task in determining when it should depart from its old decision has three phases. The first phase, which is also always present whenever a court has to find a rule in the absence of precedent clearly binding upon it, is to determine what the law ‘‘ ought to be.” In such a case, asserted Sir Garfield Barwick C.J. in Mutual Life and Citizen’s Assurance Co. v. Evatt , l l ‘‘ i t is not enough . . . t o say that the function of the court in general is to declare what the law is, and not to decide what it ought to be ”; for, finally, ‘‘ in such a case, the two positions of what [the law] is and what [it] should be are in reality coincident .”

The second phase, which arises when a precedent is challenged as wrong, requires that the rule established by that precedent be measured for its justice and aptness against what is thus found to be the law as i t ought to be. Unless the precedent rule falls sub- stantially short in this regard, no problem can arise of whether it should be departed from under the 1966 Practice Statement. If, however, it does so fall short, the question whether it should be departed from depends on still a third phase of judgment.

In this third phase, the degree of shortfall in the old precedent from what the law ought to be becomes critical, whether we think of this in terms of the ‘( injustice in a particular case ” or (‘ the proper development of the law,” referred to in the 1966 Statement, or in other terms. I t has two sub-phases.

The first sub-phase is the weighing of the degree of shortfall

6 Ib id . 7 [1968] A.C. 910. 8 rig701 A.C. 1004. 9 119683 2 Q.B. 1, affirmed [1971] A.C. 356.

1 0 [1972] 1 All E.R. 801. 11 M.L.C. Assurance v. Evatt (1968) 48 A.L.J.R. 316, 319; (1972) 122 C.L.R.

628.


found, against the negative effects of departing from the precedent. These negative effects, as seen by various of their Lordships in Jones’ case (and already referred to above) included:

(1) The risk of later chopping and changing on such questions as construction, where opinions notoriously differ according to approach. (Lords Reid, Morris and Pearson.) (2) Encouragement of repeated litigation on questions of this nature. (Lord Simon.) (3) The disturbance of cases which might have been decided between the date of the overruled case and the later overruling. (Viscount Dilhorne, Lords Diplock and Simon.)

As mitigating these negative factors, the three Lords who wished to overrule Dowling’s case, offered other relevant considerations. Viscount Dilhorne could see “ no valid reason ” for specially sheltering decisions on matters of statutory construction. And Lords Wilberforce and Diplock, though agreeing that they should in general avoid departing from cases on matters of construction, thought that when a disapproved ratio was of wide importance, “ loyalty to stare decisis ” should give way even on such matters.

To this point, then, decision whether to overrule should turn on whether the shortfall from ‘‘ justice ” and ‘‘ proper legal development ” in the disapproved precedent, outweighs the anticipated negative results of departing from it. The net outcome of this weighing is commonly referred to in terms of loss of c c certainty ”; and there is no harm in this as long as the complexity of the operation is not lost from sight.

There will often, however, be a second sub-phase of this third (degree of shortfall) phase, which adds further complexities, and which was deeply involved in the Jones’ case. This was because it was there much controverted whether the ratio decidendi of Dowling’s case was the narrow one (offered by Lord Morris, and adopted by the lower courts) depending on the supposedly exceptional nature of the facts of a ‘‘ single-identifiable-injury ” also constituting ‘‘ the accident ”; or whether i t consisted of the wider ratio (adopted by Lord Hodson and concurred in by two other Lords) as to the meaning of the word ‘‘ final ” in section 86 (3) of the statute. Lord Wilberforce, on this matter, was clear that if they could have held the case to the narrow ratio, he would have declined to overrule. But since the ratio was, in his view, the wider one, he thought they must overrule. And Lord Simon was making the same point in other terms when he recalled that one purpose of the power to depart under the 1966 Statement was “ to obviate . . . refinement in distinction and . . . capriciousness in result.” I n this light he declined to adopt Lord Morris’ narrow version of the ratio of Dowling’s case, which had neither the agreement of the majority in that case, nor his own. For him, then,


Dowling's case was simply wrong, and could not be distinguished away, and must either be departed from or (as he finally preferred) followed despite its wrongness.12

These positions point to what I am here calling the second sub- phase, once the old precedent appears for one reason or other to be disapproved. I f the attributed ratio (to which the disapproval is directed) can be narrowed so as not to govern the instant case (that is, if i t can be distinguished), then this may offer the House an escape from the hard choice between following a wrong decision and departing from it. But this course also has to be paid for in negative results incurred, since (as the 1966 Statement, as well as some Lords in the Jones' case also, observed) uncertainty and capriciousness grow with refinement of distinction. These negative results may, according to circumstances, outweigh those of openly departing from the precedent. Evasion of disapproved cases has in the past been one of the House's staple methods of developing the law; but one purpose of the 1966 Statement was to reduce the worst uncertainties produced by this technique, by allowing departure instead. So that one inference which can probably be drawn is that the question whether to depart from the disapproved precedent should arise only after the determination that the negative results incurred by the refined distinctions necessary for evading it, would be greater than those incurred by departing from it. And this, in turn, means that the fixing of what distinctions (if any) can and should be made in applying the precedent t o the instant facts (which is the other side of the question of what is the true ratio of the precedent), is as much a part of deciding whether to depart from it, as it. is of the day-to-day applications of precedent in appellate development of the law.

XIV. DECISIONS TO " DEPART ') IN THE SEAMLESS WEB OF APPELLATE OPERATIONS

All this is perhaps a good perspective for viewing the sharp contemporary dispute whether the House of Lords should shift towards giving only a single or collegiate speech for its unanimous or majority decisions,13 or whether (as Lord Reid has repeatedly urged) l4

12 [1972] 1 All E.R. at p. 196. So cf. Owen v. Pook [1970] A.C. 244, where Lords Pearce, Guest and Wilberforce " disapproved " Ricketts v. Colquhoun [1926] A.C. 1, only the first being willing to overrule, the latter two only to distinguish; and (in the C.A.) Hanning v. Maitland ( N o . 2) [1970] 1 Q.B. 580, where Lord Denning purported to exercise the power to depart, but the two other justices only distinguished.

13 Currently urged in the impressive study by L . Blom-Cooper and G. Drewry, o p . cit. supra n. 100. This will assuredly become a standard work on the structure and general functions of the judicial House. See, on the present matter, pp. 90-95, citing in support a public lecture of November 1969 by TJord Diplock not available to the present writer.

1 4 See, e.g. in Gallie v. Lee [1970] 3 W.L.R. 1078, 1081. Cf. Lord Hailsham in Broome V. Gasscll [1972] 2 All E.R. 801, 821, the latter with reference to Lord Devlin's speech on exemplary damages in Rookes v. Barnard.


single speeches in which other members simply concur should be avoided, and multiple speeches should remain the rule. The attack on multiple speeches claims that they produce confusion and uncertainty as to what the law is.15 Part of the answer to this is that confusing divisions may arise from single speeches simply concurred in by other Lords (like Lord Devlin’s in Rookes V. Barnard, or Viscount Simon’s in Duncan v. Cammell Laird, or the single opinions traditional in the Privy Council) as well as from multiple speeches (as in Dowling’s and Jones’ cases).

A longer answer would also have to add, however, that what sometimes creates especial confusion and uncertainty in a multi- speech decision lies not in the mere fact of separate speeches, but in the relation of their contents to the issues taken by the majority. This is true for dissents, as Mr. Justice Holmes long ago observed: “ When I am going to dissent I almost always make such adjust- ments as to bring out discussion ad idem-which I think is the decent way but which is not practised.” l6 The precept is no less valid (and even more important) for separate concurring speeches. In so far as such a concurrence adds an additional ground, there is no problem. In so far, however, as i t merely covers the same grounds in separate terms, then, if there is sense a t all in offering i t separately, i t should be focused on those respects in which i t seeks to vary the ground or grounds favoured by the majority, so as to minimise creating cross-purposes, false issues and side issues. And this, of course, implies that wherever possible the main majority view should be expressed in a joint judgment.17

After all this is said, the deeper point made by Lord Reid remains, that multiple speeches discourage the tendency to treat judicial opinions as ‘‘ definitions,” and afford the ‘‘ latitude ” necessary for “ further development of law.” For this refers us to the creative choices which tend to be left more open by diverse judicial formulations in the forms of competing rules or competing versions oE rules or by the simple multiplication of words, and which, of course, finally affect the available versions of the ratio decidendi of the case.lS On the appellate level, as Lord Reid

1 5 See the recent examples of Ross Smith v. Ross Smith [1963] A.C. 280; Rondel v. Worsley [1969] 1 A.C. 191; Koufos v. Czamikow L t d . [1969] 1 A.C. 350; O w e n v. Pook [1970] A.C. 244, discussed in L. Blom-Cooper and G. Drewry, op. cit., pp. 90-93, as well as Boys v. Chaplin, and other recent cases cited supra Section I.

16 Holmes-Laski Let ters 240, quoted L. Blom-Cooper and G. Drewry, op. ci t . , p. 87.

17 To this last-mentioned extent, I agree with the tenor of the stimulating discussion by L. Blom-Cooper and G. Drewry, op. c i t . , pp. 84-95.

18 L. Bloom-Cooper and G. Drewry seem to recognise the phenomenon of I ‘ creative choices ” only in part and sporadically. At points they observe that it is “ often ” found, and even that “ stare decisis is merely the name given to a general principle, a judicial philosophy, which refers to the form rather than the precise content of the judicial decision-making process ” (op. c i t . , p. 74). At others, however, they seem to assume, rather inconsistently, that it is exceptional


observed in a recent address,lQ “ it is often not possible to reach a final solution . . . all at once. It is better to put up with some uncertainty-confusion if you like-than to reach a final solution prematurely.” After the limits imposed by the duties of impartiality and promoting certainty have been recognised, he observes, the fact remains that the appellate judge is committed to

“ two inconsistent things: that the law shall be certain and that it shall be just and shall move with the times. . . . Rigid adherence to precedent will not do. And paying lip service to precedent while admitting fine distinctions gives us the worst of both worlds. On the other hand, too much flexibility leads to intolerable uncertainty.” 2o

We must, then, in Lord Reid’s words, “ accept the fact that for better or for worse judges do make law, and tackle the question how do they approach their task and how should they approach it.” 21 In the final analysis, the drawing of the lines between “ latitude ” necessary for “ legal development,” and the excessive flexibility which leads to “ intolerable uncertainty,” prerequires a fuller and steadier awareness of the creative choices which the doctrine of stare decisis itself compels judges to make. In the appellate handling of precedent the search for a “ ratio decidendi ” applicable to the instant case is itself a creative activity, proceeding within a frame of insights and arguments (Lord Reid would perhaps say, of ‘‘ common sense ” and “ principle ”) emerging from the precedents and the judges’ knowledge of the world.

The organic relation of traditional modes of appellate Iaw-application and law-creation to the radical power of departing from disapproved decisions taken by the 1966 Statement was dramatically displayed in the seven able, vaned, complex and finally indecisive speeches of their Lordships in the Jones case. The manner of its display underlines the difficulties faced even by that final instance in confronting its daily tasks without full advertence to their creative rather than declaratory nature. The complexities of the case also set into view the seamless web of appellate operations with disputed legal rules. These operations are seen to stretch without break from low-keyed inquiries as to what the disputed precedent is binding for, that is, what is its ratio decidendi in relation to the instant case (invohing a11 the problems referred to in sections I X and XI1 above) ; to the more openly value-charged inquiries whether its hitherto supposed ratio ought to be emasculated and a narrower residue left standing by the making of distinctions, and, if so, what these distinctions should be; to the traumatic issue

for appellate courts to be confronted wiqh authority which is “ equivocal.” e.g. p. 85, where they assert that it is unequiuocal that the door to jissent is left open ” (italics supplied).

19 ‘ I The Judge as Law-Maker 20 O p . cit. at pp. 29 and 26 respectively. 2 1 Or. cit . at p. 22.

See only ” when “ judicial authority is not

(1972) 12 J.S.P.T.L.(N.S.) 22, 29.

476 THE MODERN LAW REVIEW V O L 3.5

whether (in the light of all those (often problematic) answers) it should rather be departed from, overruled, and deprived of authority for all purposes.

Analysis of the speeches in Jones’ case make clear that responsible decisions of appellate courts whether or not to “ depart ” from earlier disapproved precedents emerge, finally, out of the same kinds of judgments and involve similar kinds of techniques, to those involved in the perennial cultivation of the growth of the common

That the judicial mood involved is also akin to what has characterised great architects of the common law, like the Mans- fields, the Blackburns, the Bowens, the Wrights, the Holmes, and the Cardozos, is clearly seen in the magistral statement accom- panying Lord Diplock’s vindication of Lord Devlin’s 1964 review of the law of exemplary damages.23 The law of damages, he pointed out, is judge-made law par excellence. And this necessarily implied judicial development of the law to meet conditions as judges saw them. “ If the common law stood still while mankind moved, your

What was true for the common law in time, moreover, was also The common law would not have

Lordships might still be awarding bot and wer to litigants. . . . >7

true for its extension in space.

22 For this reason it seems over-simple to say with L. Blom-Cooper and G. Drewry, o p . cit., p. 38, that by the 1966 Statement the House‘ “ ceased to be bound inevitably by its own decisions ”: for it was scarcely inevitably ” so bound, save in a distinctly formal sense, even before 1966. Their further observation is more apt, that it was “ a technical reform which acknowledged tho creativity of judges and gave an added impetus to the supervisory role of the House . . . ; a profound psychological, if not a practical change.”

23 I n Cassell v. Broome [1972] 1 All E.R. at pp. 871-874, Lord Diplock differed from both the majority of the Lords and the Court of Appeal in holding Lawton J.’s instruction to the jury to be inadequate to ensure conformity to the rules laid down in Rookes v. Barnard and to those concerning joint tort- feasors. In attitude towards Lord Devlin’s review and restatement of the law in that case, however, he was in accord with the main conclusions of the majority in general approval of them, subject to one reservation. H e thought that had he participated in Rookes v. Barnard, he would not have preserved Lord Devlin’s first category concerning oppressive action by servants of government. The cases supporting such a category (he thought) arose from the former inadequacy of remedies against the Crown, and in view of recent developments in providing such remedies, the extra protection was unnecessary (at p. 873). This apart, Lord Diplock saw Lord Devlin’s procedure as a constructive use of traditional judicial techniques to identify within the wider I ‘ nebulous range ” of cas:; in which ’14 was not clear whether the damages awarded were merely aggravated (compensatory) as distinct from exemplary, the limited categories of case where exemplary damages had clearly been awarded and sti l l remained in the l ight of modern con- dit ions worthy of special protection. The ‘‘ amorphous ” residual range of cages using language ambiguous between aggravated and exemplary damages, waR left to he dealt with by aggravated damages. In endorsing this action in Rookes v. Barnard, Lord Diplock openly acknowledged, as he believed Lord Devlin had also done, t;,e general uffderstanding up to that time of judges and practitioners that exemplary damages were awardable even In that amorphous residual range. “ The decision of legal policy which this House made in Rookes v. Barnard was to discard this third category.” That decision he endorsed as warranted by the best traditions of appellate cultivation of the law in its generational progress, the removal of anomalies and the clarification of basic principles.


survived in other countries where i t was adopted or imposed, if i t were not also adap ted to the local situations of each country. For contemporary English society, the common law rules must be adapted to new needs, by developing new rules and discarding old ones. And so also the appellate courts of each other common law country have corresponding but independent responsibilities for legal development in t he i r own

Lord Reid, in a recent address already and entitled “ The Judge as Law-Maker,” used these words:

“ There was a time when it was thought almost indecent to suggest that judges make law-they only declare it. Those with a taste for fairy-tales seem to have thought that in some Aladdin’s Cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. . . . But we do not believe in fairy tales any more.”

I think that Lord Reid spoke for some other English judges as well as for himself. The core of his message points to the momentous power wielded by appellate judges in developing the law. Recognition of this power, and of the responsibilities which in democratic society go with power, is the final path to what I have ventured to call “ the liberation ” of appellate judges. To assist with these responsibilities is, in turn, among the higher tasks of vigorous faculties of law, like that of Monash University, which I have felt so privileged, Mr. Deputy Chancellor, to visit for this occasion.

He certainly spoke for me.

JULIUS STONE.*

24 rbia. at pp. 871, 873. 2 5 Address cited supra n. 19 at p. 22. * S.J.D. (Harvard), D.C.L. (Oxford) ; Challis Professor of Jurisprudence and

International Law, University of Sydney, and Permanent Visiting Professor Faculty of Law, Hebrew University of Jerusalem.

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ON THE LIBERATION OF APPELLATE JUDGES HOW NOT TO DO IT!