Guest editorial on Hastings-Bass

Abstract

Legal history is replete with examples of the turmoil created by the elevation of insufficiently considered dicta by appellate courts (often unnecessary for their decision) into general principles of law. By reason of the strict doctrine of precedent first instance judges are (or feel themselves) bound to follow the guidance proffered, however dubious they may be of its authenticity, but they often healthily betray their hesitation and doubt, engrafting on the statements of principle glosses, qualifications and exceptions perceived as necessary to preserve the integrity of the law and achieve justice in the cases before them. The most recent and glaring example of this phenomenon in the field of trusts is to be found in: (i) the observations made by the Court of Appeal respecting the invalidation of decisions on the exercise of fiduciary discretionary powers of disposition by trustees in the case of Hastings-Bass [1975] Ch. 25; and (ii) the medley of the later first instance judgments, in which judges of the Chancery Division have tussled to interpret, make sense of and apply these dicta, elevated (in legal parlance) to the Rule in Hastings-Bass.