Precedent and the Court of Appeal: Lord Denning’s views explored

Abstract

Stare decisis provides the framework of certainty in the codeless English legal system. Even since 1966, when the House of Lords announced its power to depart from earlier authority, it has shown great reluctance to do so and has underlined this need for certainty. Given the small number of cases that filter through to the House of Lords, it is, however, the Court of Appeal that plays the vital role in the supervision of the lower courts and in the maintenance of support for the strict theory of binding precedent. Situated at the focal point of our legal system it is responsible, according to Lord Scarman, for its ‘stability, its consistency and its predictability’. Orthodox theory demands that the Court of Appeal, at least in its Civil Division, be bound by its own decisions and look to the House of Lords or Parliament to deal with unsatisfactory law. Yet recently, the Master of the Rolls held that an earlier Court of Appeal decision should, in part, be ignored. It would appear, therefore, that Lord Denning's ‘one man crusade’ (to quote Lord Diplock in Davis v Johnson) against the strict application of stare decisis in the Court of Appeal continues. This article will consider Lord Denning's various pronouncements throughout his career on precedent as it affects the Court of Appeal and will attempt to assess the theoretical justifications of his unorthodox views.