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Per incuriam

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doctrine per incuriam

doctrine per incuriam

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  • 1. ‘PER INCURIAM’U.K.‘Incuria’ literally means ‘carelessness’ and the phrase ‘‘per incuriam’’ is used todescribe judgments that are delivered with ignorance of some statute or rule.It is well-settled in the English doctrine of precedents that a judgement renderedin ignorance of a statute, or a rule having statutory force, which would haveaffected the result, is not binding on a court otherwise bound by its owndecisions.In London Street Tramways Co. v. London County Council – (1898) AC 375,the House of Lords recognized that such a judgment was an exception to therule that the House of Lords was absolutely bound by its own judgments.Young v Bristol Aeroplane Company Limited, [1944] 1 KB 718, Court ofAppealThe Court of Appeal is bound to follow its own decisions and those of courts ofco-ordinate jurisdiction, and the "full" court is in the same position in this respectas a division of the court consisting of three members.The only exceptions to this rule are: -(1.) The court is entitled and bound to decide which of two conflicting decisionsof its own it will follow;(2.) The court is bound to refuse to follow a decision of its own which, though notexpressly overruled, cannot, in its opinion, stand with a decision of the House ofLords;(3.) The court is not bound to follow a decision of its own if it is satisfied that thedecision was given ‘per incuriam’ , e.g., where a statute or a rule having statutoryeffect which would have affected the decision was not brought to the attention ofthe earlier court.The Court of Appeal in Morelle Ltd v Wakeling [1955] 1 All ER 708, [1955] 2QB 379 stated that as a general rule the only cases in which decisions should beheld to have been given ‘per incuriam’ are those of decisions given in ignoranceor forgetfulness of some inconsistent statutory provision or of some authoritybinding on the court concerned: so that in such cases some part of the decisionor some step in the reasoning on which it is based is found, on that account, tobe demonstrably wrong.Sir John Donaldson MR in the English Court of Appeal in Duke v RelianceSystems Ltd [1987] 2 WLR 1225 explained it as follows:I have always understood that the doctrine of ‘per incuriam’ only applies whereanother division of this court has reached a decision in the absence ofknowledge of a decision binding upon it or a statute, and that in either case it hasto be shown that, had the court had this material, it must have reached acontrary decision. That is ‘per incuriam’.
  • 2. I do not understand the doctrine to extend to a case where, if different argumentshad been placed before it or if different material had been placed before it, itmight here reached a different conclusion. That appears to me to be the positionat which we have arrived today.Cassell & Co Ltd v Broome (No 1)[1972] UKHL 3 (23 February 1972)1…………………..I turn now to the first question. Does Rookes v. Barnardcorrectly state the law with regard to exemplary damages?The Court of Appeal held that it did not. It was said that it was a decision givenper incuriam. The Court of Appeal refused to allow it and Judges were told todirect juries in accordance with the law as understood before that case.Decisions of this House are binding on all inferior courts and must be followed bythem. There are, I think, two grounds on which the Court of Appeal can justifiablyrefuse to follow what has been said in this House. The first is that what was saidwas obiter. While it might be argued that the observations made with regard toexemplary damages in so far as they related to libel actions were obiter as noquestion with regard to them arose in Rookes v. Barnard where the questionwas, could such damages be given for intimidation, the Court of Appeal did notbase their actionon this ground. The second is where there are two clearly inconsistent decisionsof this House, and the Court of Appeal has then to choose which to follow. In theCourt of Appeal it was asserted that what was said in Rookes v. Barnard was inconflict with two previous decisions of this House, Hulton v. Jones [1910] A.C.20and Ley v. Hamilton (1935) 153 L.T.384 but, as I read the judgments, the Courtof Appeal did not proceed upon this ground.To say that a decision of this House was given per incuriam is, to say the least,unusual and could be taken, though I cannot believe it was so intended, as of asomewhat offensive character. While I regret the use of this expression, I doubt ifit was intended to mean more than that the questions involved deserved moreconsideration in relation, among other things, to libel actions. If that is what wasmeant, it is, I must confess, a view with which I have considerablesympathy…………………………………….The Court of Appeal found themselves able to disregard the decision of thisHouse in Rookes v. Barnard by applying to it the label per incuriam.That label is relevant only to the right of an appellate court to decline to followone of its own previous decisions, not to its right to disregard a decision of ahigher appellate court or to the right of a Judge of the High Court to disregard adecision of the Court of Appeal. Even if the jurisdiction of the Court of Appealhad been co-ordinated with the jurisdiction of this House and not inferior to it thelabel per incuriam would have been misused. The reasons for applying it weresaid to be: first, that Lord Devlin had overlooked two previous decisions of thisHouse in Hulton v. Jones ([1910] A.C. 20) and Ley v. Hamilton (ubi sup);secondly, that the "two categories " selected as those in which the power toaward exemplary damages should be retained had not been previouslysuggested by counsel in the course of their arguments…………………….1 Cite as: [1972] UKHL 3, [1972] 2 WLR 645, [1972] AC 1027
  • 3. IndiaPhilip Jeyasingh vs The Joint Registrar (1992) 2 MLJ 309…….Edition, Vol.26, at 296 to 302, Paragraphs 577 to 580. It is sufficient toextract the following passages found therein for the purpose of this case:A decision of the House of Lords occasioned by members of the House beingequally divided is as binding on the House and on all inferior Tribunals as if ithad been unanimous. Decisions of the House of Lords are binding on every courtinferior to it. It is not open to the Court of Appeal to advise judges to ignoreHouse of Lords decisions on the ground that they were decided per incuriam orare unworkable. But if there is no discernible ratio decidendi the Court of Appealmay adopt any reasoning which appears to it correct provided it supports theactual decision of the House. (Paragraph 577)The decisions of the Court of Appeal upon questions of law must be followed byDivisional Courts and Courts of first instance, and as a general rule, are bindingon the Court of Appeal until a contrary determination has been arrived at by theHouse of Lords. Unlike the House of Lords, the Court of Appeal does not haveliberty to review Appeal has no greater powers than a division of the court and,except in the cases mentioned above, has no power to overrule a previousdecision of a division of the court. Where, however, there is an apparent conflictbetween two previous decisions of the court, it is not uncommon for the matter tobe argued before a full court as the decision of such a court carries greaterweight. (Paragraph 578)A Divisional Court is bound by its own previous decisions, regardless of howmany judges are sitting, with limited exceptions in criminal cases, subject alwaysto the per incuriam rule. Faced with conflicting earlier decisions the court is freeto decide which to follow. Divisional Court decisions bind judges of first instance,even of a different division, but not the Employment Appeal Tribunal.(Paragraph 579)There is no statute or common law rule by which one court is bound to abide bythe decision of another court of co-ordinate jurisdiction. Where, however, a judgeof first instance after consideration has come to a definite decision on a matterarising out of a complicated and difficult enactment, the opinion has beenexpressed that a second judge of first…………….. Rashmi Rekha Thatoi & Anr v.s State of Orissa & Ors 2012……………………………..It is worth noting though the Bench treated AdriDharan Das (supra) to be ‘per incuriam’, as far as it pertained to grant ofanticipatory bail for limited duration, yet it has not held that the view expressedtherein that the earlier decisions pertaining to the concept of deemed custody aslaid down in Salauddin Abdulsamad Shaikh (supra) and similar line of caseswas per incuria. …………………………….When the High Court in categorical terms has expressed the view that it notinclined to grant anticipatory bail to the accused petitioners it could not haveissued such a direction which would tantamount to conferment of benefit bywhich the accused would be in a position to avoid arrest. It is in clear violation of
  • 4. the language employed in the statutory provision and in flagrant violation of thedictum laid down in the case of Gurbaksh Singh Sibbia (supra) and theprinciples culled out in the case of Savitri Agarwal (supra)……………….Sibnath Koley And Ors. vs State Of West Bengal And Ors 2007……………………Looking at the matter, in view of what has been held to meanby ‘per incuriam’, we find that such element of rendering a decision ignorance ofany provision of the statute or the judicial authority of binding nature, is not thereason indicated by the Full Bench in the impugned judgment, while saying thatthe decision in the case of Ramkrit Singh was rendered ‘per incuriam’. On theother hand, it was observed that in the case of Ramkrit Singh the Court did notconsider the question as to whether the consolidation authorities are Courts oflimited jurisdiction or not. In connection with this observation, we would like tosay that an earlier decision may seem to be incorrect to a Bench of a co-ordinatejurisdiction considering the question later on the ground that a possible aspect ofthe matter was not considered or not raised before the Court or more aspectsshould have been gone into by the Court deciding the matter earlier but it wouldnot be a reason to say that the decision was rendered ‘per incuriam’ and liable tobe ignored. The earlier judgment may seem to be not correct yet it will have thebinding effect on the later Bench of co-ordinate jurisdiction. Easy course ofsaying that earlier decision was rendered ‘per incuriam’ is notpermissible…………....Official Liquidator v. Dayanand and Others (2008) 10 SCC 1……………………….”We are distressed to note that despite severalpronouncements on the subject, there is substantial increase in the number ofcases involving violation of the basics of judicial discipline. The learned SingleJudges and Benches of the High Court’s refuse to follow and accept the verdictand law laid down by coordinate and even larger Benches by citing minordifference in the facts as the ground for doing so. Therefore, it has becomenecessary to reiterate that disrespect to the constitutional ethos and breach ofdiscipline have grave impact on the credibility of judicial institution andencourages chance litigation. It must be remembered that predictability andcertainty is an important hallmark of judicial jurisprudence developed in thiscountry in the last six decades and increase in the frequency of conflictingjudgments of the superior judiciary will do incalculable harm to the systeminasmuch as the courts at the grass roots will not be able to decide as to whichof the judgment…………………….