Per incuriam

Meaning 'through carelessness or lack of care' including without regard to appropriate statutory provision or binding precedent.

We often encounter this term by chance when we are not necessarily looking for this phrase as such but  looking at the circumstances in which courts are bound by its previous decision.


It is only natural to start with the Supreme Court (previously the House of Lords) as it is our most senior court in the English legal system and its decisions do, after all, bind all other courts in the system. Prior to 1898 the House of Lords took the view that it had the right to overrule its own past decisions but in London Street Tramways v London County Council (1898) the House settled on the opinion that certainty in the law was more important even though individual hardship may result from having to follow past decisions. This view prevailed from 1898 to 1966 although the House did accept it did not need to follow a decision which had been made per incuriam or by mistake. The notion of error was further limited by the view that the error did not include mistaken arguments but was limited to circumstances where an error had been made by failing to consider the effect of a relevant statute. This was considered to be far from satisfactory as it effectively fettered the House's ability to develop the law and move with the social development needs of the country. It seemed unjust that 'wrong' decisions could not be changed by the House of Lords.


Contrast this situation with the post 1966 Practice Statement era of the House (now the Supreme Court) and the subsequent development of the law and the recent unanimous admission by the Supreme Court that many years ago a mistake was made by the courts when interpreting foresight in the context of joint enterprise offences. This gave rise to a mistake in applying the law as it should be, namely by reference to intention. The cases involved were R v Jogee (Appellant) and Ruddock (Appellant) v The Queen (Respondent) (Jamaica) (2016). The first case concerned a stabbing in Leicestershire and the latter case concerned an appeal to the Judicial Committee of the Privy Council against a murder conviction in Jamaica.


The Supreme Court focused their attention on an earlier Privy Council appeal decision in Chan Wing Siu v R (1985) in which it had been held that for an accomplice to be guilty of murder it was sufficient for the prosecution to establish that he foresaw death or grievous bodily harm as a possible incident of the common design being carried out. The subsequent cases of R v Powell and another; R v English (1999) also came under scrutiny as they had also followed the decision in Chan Wing Siu. In so doing the Supreme Court called into question the decision in the case of Chan Wing Siu which is said to have taken a 'wrong turn' in blurring the distinction between foresight and intention with the result that the courts in following Chan Wing Siu have not been faithfully applying the law as it stood at the time.


The Court of Appeal is normally bound by its previous decisions subject to three exceptions which were set out in the case of Young v Bristol Aeroplane Co Ltd (1944).


One of these exceptions was where its previous decision was made per incuriam which as stated above means through carelessness or without regard to the law. Put simply a provision has been missed or ignored when it should have been considered. The other two exceptions are a) that its own previous decisions conflict - in which case the court can choose which decision to follow or b) where its previous decision had been implicitly overruled by the House of Lords (now the Supreme Court).


Some cases have elaborated upon the nature of the mistake or error. We are helped by the words of Lord Evershed MR in Morelle v Wakeling (1955) when he said: “As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive…” The material facts in the case were significant as they concerned a claimant's contention of ownership of leasehold land. A similar situation had arisen in an earlier case before the Court of Appeal, and the court was asked to decide that that case had been decided per incuriam. The previous case had involved an area of law which had fallen into disuse known as 'mortmain'. See also Williams v Fawcett (1985).

In Duke v Reliance Systems Ltd (1988) the Court of Appeal was claimed to have failed to have proper regard to a European Directive when considering the retirement ages of men and women in the private sector. It was Lord Donaldson MR who stated that ‘I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding on it or a statute, and that in either case it has to be shown that had the court had this material, it must have reached a contrary decision . . I do not understand the doctrine to extend to a case where, if different arguments had been placed before it, or if different material had been placed before it, it might have reached a different conclusion.’

R v Jogee and Ruddock v The Queen – YouTube

Williams -v- Fawcett; CA 1985 |

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