Judicial Precedent: The Supreme Court And Use Of The Practice Statement (Copy)

1.2.1 Sources of Law

The Supreme Court and Use of the Practice Statement

Introduction

• The Supreme Court (formerly the House of Lords until October 2009) is the highest court in the United Kingdom for both civil and criminal cases.
• Its decisions are binding on all lower courts in England and Wales, and highly persuasive in Scotland and Northern Ireland.
• Historically, the House of Lords bound itself absolutely (London Street Tramways v London County Council (1898)), creating rigidity.
• To ease this rigidity, the Practice Statement of 1966 was issued, allowing the highest court to depart from its own previous decisions where it was “right to do so.”

The Position Before 1966

• London Street Tramways (1898): The House of Lords declared itself bound by its own previous decisions, even if wrong.
• Reason: certainty in the law outweighed flexibility.
• Problem: bad precedents could not be changed without legislation.
• Criticisms grew that this led to injustice and hindered the law’s development.

The 1966 Practice Statement

• Issued by the Lord Chancellor on behalf of the House of Lords.
• Allowed departure from previous decisions in order to:
  1. Prevent injustice in individual cases.
  2. Allow the law to develop and adapt to changing conditions.
• Emphasised that it would be used sparingly to maintain certainty.
• Carried over to the Supreme Court when it replaced the House of Lords in 2009 (Austin v Mayor of Southwark (2010) confirmed continuity).

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Early Use of the Practice Statement

• Conway v Rimmer (1968): First civil case where Practice Statement used; allowed departure on disclosure of government documents.
• Herrington v British Railways Board (1972): Overruled Addie v Dumbreck (1929); changed duty of care owed to child trespassers, recognising modern social expectations.

Development in Criminal Law

• Criminal law demands high certainty, so departures are rarer.
• R v Shivpuri (1986): House of Lords overruled itself from Anderton v Ryan (1985) on attempts to commit impossible crimes. Lord Bridge emphasised that certainty is valuable, but correcting a clear error is more important.
• R v G (2003): Supreme Court overruled Caldwell (1982) on recklessness, holding the Caldwell test unfair to children.

Use in Civil Law

• Murphy v Brentwood DC (1991): Overruled Anns v Merton LBC (1978) on negligence in defective buildings.
• Pepper v Hart (1993): Allowed reference to Hansard in statutory interpretation, overruling prior cases excluding Hansard (Davis v Johnson (1979)).
• Hall v Simons (2000): Overruled immunity for barristers in negligence claims, reflecting modern accountability standards.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Principles Governing Use of the Practice Statement

• Sparingly Used: Court stresses that certainty remains crucial.
• Balance: Must weigh the need for stability against correcting error or adapting to social change.
• Retrospective Effect: New rulings generally apply retrospectively, affecting past actions.
• Areas of Sensitivity: More cautious in criminal law due to liberty at stake.

Advantages of the Practice Statement

• Flexibility: Corrects past errors and adapts to new conditions.
• Justice: Prevents unfairness caused by outdated precedents.
• Evolution: Ensures the law can respond to social, economic, and moral change.

Disadvantages of the Practice Statement

• Uncertainty: Excessive use could undermine confidence in stability of law.
• Judicial Activism: Critics argue it blurs line between interpreting and making law.
• Rare Use: Even though available, the courts often prefer Parliament to change the law.

Case Law Summary

Conclusion

• The Supreme Court’s use of the Practice Statement balances certainty with justice.
• It is the mechanism by which precedent can adapt without waiting for Parliament.
• Used sparingly, it has reshaped key areas of tort, contract, statutory interpretation, and criminal law.
• It remains a central illustration of how the doctrine of precedent allows the law to evolve while respecting stability.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course