учебный год 2023 / appeals and the doctrine of precedent
.pdfAppeals and the Doctrine of Precedent Author(s): O. M. Stone
Source: The Modern Law Review, Vol. 14, No. 4 (Oct., 1951), pp. 493-496 Published by: Blackwell Publishing on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1089369
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OCT. 1951 |
NOTES OF CASES |
493 |
have the Disciplinary Committee and the Solicitors' Practice and Remuneration Rules. Nevertheless the realities of the two cases
are too similar for one's peace of mind. If in fact the Solicitors' Rules produce the result reached in this case-and reasons have been advanced for doubting it-then it may be cogently argued that they too are contrary to public policy just as much as those of the B.M.A. in Pratt's Case, or those of the Association of Dental Manufacturers and Traders recently considered by the Monopolies Commission (see 14 M.L.R. 195).
And even if the solicitor's conduct did, as must be assumed,
constitute a technical breach of the Rules, it is respectfully submitted to the Law Society that they did little service to the profession in instituting proceedings in this case. The lay Press constantly
publish complaints about the alleged high legal costs in conveyancing matters. Most of these complaints are unfair and misconceived but this case gives the critics something to get their teeth into and hardly seems likely to reconcile the public to the much-needed increases in professional scales of remuneration for which the Law Society is pressing. Having regard to the fact that these increases require the blessing of the Government and Parliament it was surely ill-advised gratuitously to antagonise powerful trade union interests ?
L. C. B. GOWER.
APPEALS AND THE DOCTRINE OF PRECEDENT
Vitkovice Horni a Hutni Tezirstvo v. Korner 1 marks the final phase
in the litigation of a preliminary question of procedure, namely the service of notice of a writ out of the jurisdiction under R.S.C. Ord. 11, r. 1 (e) and r. 4. The determination of this question has
taken |
five |
years |
and involved |
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four |
appeals, |
culminating |
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in |
a |
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unanimous |
decision |
by |
the House |
of |
Lords |
in |
favour |
of |
the |
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ruling |
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first given |
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by a Master in Chambers. |
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an |
action |
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arrears |
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In |
April, |
1946, |
Emil |
Korner |
brought |
claiming |
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of pension |
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and |
salary |
due |
to him |
in England |
under |
alleged |
contracts |
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with the |
appellants, |
who |
were |
a Czechoslovak |
firm, |
since |
national- |
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ised; |
and |
he |
applied |
for leave |
to |
serve |
notice |
of the |
writ in Czecho- |
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slovakia. |
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Leave |
was granted |
by |
Master |
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Moseley |
in |
Chambers |
in |
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May, |
1946. |
On |
an |
application |
by |
the |
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Czechoslovak |
firm |
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under |
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R.S.C. |
Ord. |
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12, |
r. 30, |
this order |
was |
set |
aside |
by |
Master Grundy |
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in November, |
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1948. |
Korner's |
appeal |
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to |
Slade |
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J. in |
Chambers was |
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dismissed |
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in |
June, |
1949, |
but |
his |
further |
appeal |
to |
the |
Court |
of |
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Appeal was allowed |
by |
Bucknill |
and |
Singleton |
L.JJ. |
(Denning |
L.J. |
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dissenting) |
in |
January, |
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1950, |
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and |
the |
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original |
order |
of |
Master |
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Moseley, |
granting |
leave |
to serve |
notice |
of |
the |
writ |
out |
of |
the |
juris- |
diction, was restored, with the qualification (based on the precedent
1 [1951] 2 All E.R. 334.
494 |
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THE |
MODERN |
LAW |
REVIEW |
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VOL. 14 |
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of Thomas |
v. |
Iamilton |
(Dowager |
Duchess) |
2) |
that |
judgment |
could |
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not |
be recovered |
for |
arrears |
of |
salary |
unless |
it |
appeared |
at the |
trial |
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that |
his |
claim |
under |
this |
head |
was payable |
in England. |
The |
firm |
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appealed |
to |
the |
House |
of |
Lords, |
who |
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unanimously |
held |
that |
leave |
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for |
service |
out |
of the jurisdiction |
had |
been |
rightly |
granted |
by |
the |
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Court of |
Appeal |
and, |
with |
the |
exception |
of |
Lord |
Oaksey |
(who |
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expressed |
no opinion |
on |
the |
matter), |
declared |
that |
the |
qualification |
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inserted |
as |
to |
the claims |
under |
the service |
agreement |
was undesir- |
able, but allowed it to stand because Korner had not cross-petitioned
on this |
point. |
|
leave for service out of |
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Slade |
J. |
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In |
refusing |
the jurisdiction, |
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had considered |
himself |
bound |
by |
a |
statement |
by |
Lord Goddard, |
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C.J., |
in |
the |
Court |
of |
Appeal |
decision |
in Malik |
v. |
Narodni |
Banka |
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Ceskoslovenska |
3 that, |
on an application |
for leave for |
service |
out |
of |
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the jurisdiction |
under Ord. 11, r. 1 (e), |
the burden on the plaintiff |
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under |
R.S.C. |
Ord. 11, |
r. 4, was to |
make |
out a prima facie case that |
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there |
was a contract |
and a breach |
of |
it, |
but to |
' satisfy |
' the |
Court |
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that the breach had occurred |
within the |
jurisdiction. |
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The findings |
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of the |
judges |
in the |
superior |
Courts on this |
point |
of |
precedent |
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perhaps |
merit |
some |
consideration. |
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In the Court of Appeal- |
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Bucknill |
L.J.- |
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(a)doubted if Lord Goddard's words bore the meaning which Slade J. attributed to them,
(b) |
thought |
that |
if |
they |
bore |
that |
meaning |
they |
were |
obiter |
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|
and |
therefore |
not |
binding |
on |
the |
learned |
judge |
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or |
the |
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Court of Appeal, |
and |
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(c) |
thought |
that |
if |
they |
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were not obiter they were inconsistent |
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with |
the |
decision |
of |
the |
Court of |
Appeal |
in |
Thomas v. |
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|
Hamilton. |
(Dowager |
Duchess),' |
those |
of the |
Court of Appeal |
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|
and |
the |
House |
of |
|
Lords |
in |
Badische |
Anilin |
und |
Soda |
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|
Fabrik |
v. |
Chemische |
Fabrik |
vormals |
Sandoz4 |
and |
of |
the |
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House |
of |
Lords |
in |
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Tyne |
Improvement |
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Commissioners |
v. |
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Armement |
Anversois |
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S.A. |
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(The |
Brabo),5 |
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Singleton |
L.J. |
thought |
that |
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Lord Goddard's remarks were part of |
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the |
ratio |
decidendi |
in |
Malik's |
Case,3 |
and |
were |
binding |
both |
on |
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Slade J. and the Court of Appeal, |
but he |
differed |
from |
Slade |
J. |
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on the facts and thought |
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the |
heavier |
burden |
of |
proof had been |
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discharged. |
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Denning |
L.J. |
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agreed that Lord |
Goddard's |
statement |
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was |
part |
of |
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the |
ratio |
decidendi |
in |
Malik's |
Case, |
thought |
that |
'it |
may |
not |
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be |
absolutely |
binding |
on |
us, |
but |
we |
ought |
to |
follow |
it |
unless |
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there |
are |
strong |
reasons |
for not |
doing so |
, |
but |
that |
there were |
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2 17 Q.B.D. |
592. |
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2 All |
E.R. 663. |
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3 176 L.T. |
136; |
[1946] |
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488 L.T. 490; 90 L.T. 733.
5[1949] A.C. 326.
OCT. 1951 |
NOTES OF CASES |
495 |
no such strong reasons since it was not inconsistent with Lord Porter's speech in Tyne Improvement Commissioners v. Armement Anversois S.A. (The Brabo). He agreed with Slade J. that the required evidence of a breach of contract within the jurisdiction of the English Courts was not available, for reasons which the learned Lord Justice set out at length under five heads, and would have dismissed the appeal.
In the House of Lords-
Lord Simonds (Lord Normand concurring) expressed no opinion whether Lord Goddard's remarks were ratio decidendi or obiter
dicta, thought that on the question of a breach within the jurisdiction something more than a prima facie case was required, ' did not quarrel' with the expression 'a good arguable case ', but thought that Slade J. had set too high a standard and had in effect required to be satisfied on the point ' beyond reasonable doubt '.
Lord Oaksey thought that the standard of proof required on the question of a breach within the jurisdiction did not differ from that on the existence of a contract and a breach of it.
Lord Radclifge said: 'I daresay he (Slade J.) was right in thinking that (Malik's) case did contain a statement of principle which was binding on him but, if it did, I think that the principle was not rightly expressed'. He also thought that no different standard of proof was required on the question of a breach within the jurisdiction from that on the existence of a contract and a breach of it, and said he could not himself be satisfied
where a breach of contract had taken place without being at any rate as much satisfied that the contract existed and had
been broken. He thought a prima facie case too low a standard, but that to be 'satisfied' put the standard too high.
ferred the test of ' a strong case for argument'.
Lord Tucker approved Lord Goddard's remarks in Malik's Case, thought that different standards of proof were required on the different matters, expressly disapproved Bucknill L.J.'s statement to the contrary, ' felt considerable doubt' whether
Slade J. had misdirected himself in the present case, but |
was |
' not prepared to dissent from the conclusion reached by |
your |
Lordships that he used language calculated to give the impression that he considered that a breach within the juris- diction had to be proved to the same extent as matters in issue must be proved at a trial '.
The doctrine of precedent certainly becomes somewhat involved when in the Court of Appeal a majority of two members think that a puisne judge and the Court of Appeal itself is bound by a previous statement in that Court, whilst one member thinks the statement
496 |
THE MODERN LAW REVIEW |
VOL. 14 |
merely obiter, whereas in the House of Lords two members think the statement was binding and three think the statement wrong but express no opinion on whether it was ratio decidendi or obiter dicta, and two of those appear to lay down a standard of proof intermediate between that required by Lord Goddard and that applied by the dissenting member (Denning L.J.) in the Court of
Appeal.
Altogether the case provides not a very satisfactory object-lesson
on the speed and cheapness of English justice, does nothing to define the graduation from ratio decidendi to obiter dictum, and may well become something of a museum piece for those who contend that the certainty of law is a childish illusion. The plaintiff, in the meantime, is now free to start his substantive action.
O. M. STONE.
LIABILITY OF INVITOR FOR ' UNUSUAL DANGER ' KNOWN TO THE
INVITEE
THEdecision of the Court of Appeal in Horton v. London Graving Dock,l which was thought to have finally set at rest the longstanding controversy over the exact duty owed by an invitor to his invitee, has now been reversed by a majority decision of the House of Lords (Lords Porter, Normand and Oaksey), two strongly dissenting opinions being delivered by Lords MacDermott and Reid: [1951] 2 All E.R. 1. The majority decision suffices to dispose of the controversy but whether in as satisfactory a manner as that arrived at previously by the Court of Appeal may be respectfully doubted.
It will be recalled that the facts of the case were that the
plaintiff was a welder employed by sub-contractors to do repairs to a trawler. Part of the work involved working upon a staging which was provided by the defendants, who were the head contractors. The floor of this staging consisted of boards five feet apart, and while working thereon the plaintiff slipped and was injured. Lynskey J. held that the plaintiff had full knowledge of the dangerous character of the staging, and that accordingly it was not an 'unusual danger' to the plaintiff within the meaning of the rule in Indermaur v. Dames.2 The Court of Appeal reversed this decision on the ground that an 'unusual danger'
danger not normally encountered in the particular circumstances and not just a danger which was unanticipated by the particular
plaintiff. Accordingly it was held that the plaintiff's knowledge of the danger was not decisive to eliminate responsibility, Willes J.,
in Indermaur v. Dames, having merely referred to a warning as one of the modes by which in some circumstances an invitor might
1 [1950] 1 All E.R. 180. See 13 M.L.R. 230. 2 (1866) L.R. 1 C.P. 274.