Per Incuriam
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The term per incuriam, which literally translates to "through lack of care", is an important concept in the common law system of judicial precedent. When a judgment is found to be per incuriam, it indicates that the court failed to consider a relevant statutory provision or precedent that should have been applied. The significance of such a finding is that it allows lower courts to depart from an otherwise binding decision made by a superior court. Ordinarily, the ratio decidendi (the legal reasoning) of a judgment is binding on lower courts in similar cases. However, if a judgment is determined to have been decided per incuriam, lower courts are not obliged to follow it.
Instances of per incuriam judgments are rare, partly due to the fact that courts, particularly upper courts, view it as a serious critique, akin to a type of lèse-majesté, and therefore, lower courts typically prefer to distinguish such precedents rather than label them as per incuriam outright. The Court of Appeal in Morelle Ltd v Wakeling (1955) established a general rule for identifying per incuriam cases: such cases typically arise when a decision was made without considering or remembering an inconsistent statutory provision or a binding authority relevant to the matter. As a result, a part of the decision or a step in the court's reasoning may be demonstrably incorrect based on that oversight.
One illustrative case is R v Northumberland Compensation Appeal Tribunal ex parte Shaw (1951), where a divisional court of the King's Bench division declined to follow a previous Court of Appeal decision on the basis that the earlier judgment had been made per incuriam for failing to cite a relevant decision from the House of Lords. This demonstrates how lower courts can reject the authority of superior court decisions when they are shown to have ignored critical legal sources.
There are also academic discussions around certain notable cases being potentially per incuriam. For instance, some critics have argued that Re Polemis was decided per incuriam as it did not consider the earlier case of Hadley v Baxendale (1854). Similarly, it has been suggested that Foakes v Beer might have been decided per incuriam because it failed to take into account the recent House of Lords decision in Hughes v Metropolitan Railway Co (1877). Such critiques highlight the ongoing debates within the legal community regarding the application and identification of per incuriam judgments.
Instances of per incuriam judgments are rare, partly due to the fact that courts, particularly upper courts, view it as a serious critique, akin to a type of lèse-majesté, and therefore, lower courts typically prefer to distinguish such precedents rather than label them as per incuriam outright. The Court of Appeal in Morelle Ltd v Wakeling (1955) established a general rule for identifying per incuriam cases: such cases typically arise when a decision was made without considering or remembering an inconsistent statutory provision or a binding authority relevant to the matter. As a result, a part of the decision or a step in the court's reasoning may be demonstrably incorrect based on that oversight.
One illustrative case is R v Northumberland Compensation Appeal Tribunal ex parte Shaw (1951), where a divisional court of the King's Bench division declined to follow a previous Court of Appeal decision on the basis that the earlier judgment had been made per incuriam for failing to cite a relevant decision from the House of Lords. This demonstrates how lower courts can reject the authority of superior court decisions when they are shown to have ignored critical legal sources.
There are also academic discussions around certain notable cases being potentially per incuriam. For instance, some critics have argued that Re Polemis was decided per incuriam as it did not consider the earlier case of Hadley v Baxendale (1854). Similarly, it has been suggested that Foakes v Beer might have been decided per incuriam because it failed to take into account the recent House of Lords decision in Hughes v Metropolitan Railway Co (1877). Such critiques highlight the ongoing debates within the legal community regarding the application and identification of per incuriam judgments.
