Abstract
This article explores the possibility that some of the advantages of prospective overruling can be achieved by deploying the weaker prospective lawmaking technique of ‘not following’ which the author claims is a well‐established feature of the common law as is illustrated most recently by Hall v Simons [2000] 3 All E R 673. On the analysis presented, that case abolished the barristerial immunity for the future only. Some of the problems of time can been seen at their most acute in R v Governor of Brockhill Prison, ex parte Evans [2000] 4 All ER 15 and the author ventures to suggest that had sufficient attention been paid to the distinction between ‘authoritatively overruling’ and ‘not following’ the extreme and nonsensical (but legally correct) outcome in that case might have been avoided. The unsatisfactory outcome is traced to the influence of the declaratory theory of the common law which holds that judicial decisions, especially those changing or correcting earlier decisions, are ‘inevitably retrospective’. The author therefore considers time as a problem not only for practice but also for legal theory and is concerned to challenge the descriptive and normative claims of the declaratory theory of the common law, even in the reinterpreted and diluted form which emerged from judicial opinion in, and academic comment on, Kleinwort Benson v Lincoln City Council [1999] 2 AC 349.
Published Version
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