Certainly, a precedent which has been overruled is not an authority, binding or otherwise. However, as we have seen, the process of overruling principles of law is approached with caution by the courts, since this would undermine the characteristic of certainty within the law and would also disturb contractual arrangements and financial agreements. Hence, it is only where a principle is manifestly wrong or has become irrelevant, spent and untenable that it will be overruled.59
The attitude toward the overruling of decisions is intricately bound up with the declaratory theory of the common law. This theory posits that the rules of the com-mon law have existed from time immemorial, hence the comcom-mon law cannot be changed. Rather, certain rules are restated for accuracy. Consequently, the judge’s function is not to create or change the common law, but solely to find the correct statement of law and declare it. The theory proceeds upon the separation of powers principle. The practical effect of this theory is that where a decision is overruled by a higher court, it is decreed to be based on a misunderstanding of the law. The earlier incorrect legal principle is deemed never to have existed. The logical consequence is that judicial overruling operates retrospectively, as opposed to the overruling by statute which operates prospectively.
57 Civil Appeal No. 8 of 1999, decided 21 February 2000 (ECSC, Grenada).
58 Ibid, p 9.
59 See, eg, Miliangos v George Frank (Textiles) Ltd [1976] AC 443, where the House of Lords over-ruled its previous judgment that the judgment debts must be given in sterling.
Challenges to the declaratory theory – creating new legal rules
The notion that judges do not create law, but merely declare it, can be exposed as somewhat of a legal fiction, or at least, a misinterpretation of the judge’s role. We explore the question whether judges make law in more depth later in this chapter.60 Here, it suffices to note that indeed, the declaratory theory as a fundamental tenet of the English common law has been vigorously challenged. This was evident, for example, in the case of Jones v SOS for Social Services.61
There is thus authority for the view that the declaratory theory has been under-mined to a great extent and that the more modern attitude toward the judge’s role is that it is partly declaratory and partly innovative. Indeed, many argue that even the application of existing law to new circumstances, something which common law judges do routinely, is not clearly distinguishable from the creation of a new rule of law.62 Justice Wit, in the newly constituted Caribbean Court of Justice (CCJ), in the landmark case of AG and Others v Joseph and Boyce,63 had this to say:
There is worldwide acceptance that the development of unwritten or common law is not simply the discovery of law and the making of declarations as to ‘what it is and always has been’, but that it is a form of creating law.
As we noted earlier, the power to overrule decisions prospectively has always been recognised in the USA. It should be obvious that if we accept the strict applica-tion of the declaratory theory, the potential for change would be seriously curtailed. It has an even more limiting effect in the Commonwealth Caribbean as there would be little basis for establishing an indigenous jurisprudence in the region.64
We noted earlier that the highest court in the hierarchy will bind all other courts and will consider themselves bound by their earlier decisions. However, the strict application of the latter rule in the landmark London Street Tramcars65 case was dis-credited to some extent in 1966. In that year, the House of Lords in England, in a Practice Statement or Practice Direction made by their Lordships, declared that they would in future depart from their own decisions when it appeared right to do so. The Practice Direction stated that their Lordships ‘recognise that the rigid adherence to precedent may lead to injustices in a particular case and also unduly restrict the proper development of the law’.66 This statement advanced the earlier dicta in the case of Scruttons Ltd v Midland Silicones Ltd67 where, although it was felt that the rule in London Street Tramcars was too rigid, their Lordships considered themselves bound by such a rule until it was altered.
60 See p 159.
61 [1972] AC 944, p 1026.
62 See, eg, Cross, R and Harris, JW Precedent in English Law, 1991, Oxford: Clarendon Press, 4th edn, p 29. The authors believe that the declaratory theory is beneficial in giving judges reasons not to follow a case of which it strongly disapproves. Ibid, p 35.
63 CCJ Appeal No CV 2 of 2005, decided 8 November 2006; Judgment of Mr Justice Wit, p 29, para 41.
64 See the discussion on ‘The Caribbean Perspective – Difficulties in the Operation of Precedent’, below, and Chapter 5 (‘The Reception or Imposition of English Law and Its Significance to Commonwealth Caribbean Jurisdictions’).
65 [1898] AC 375.
66 Practice Direction (Judicial Precedent) [1966] 1 WLR 1234, House of Lords. Indeed, the rule of binding precedent is of relatively recent origin, a product of the 20th century. Young v Bristol Aeroplane Co Ltd [1944] KB 718.
67 [1962] AC 446.
The important Practice Direction is regarded as having the force of law. The effects of this change in the law can be seen in subsequent cases such as Jones v SOS for Social Services,68Miliangos v George Frank Textiles69 and more recently, in Murphy v Brentwood District Council.70 The latter involved the question of liability for negligence.
The implications of the new direction of overruling precedent is equally import-ant for the Commonwealth Caribbean, both because the Privy Council and Caribbean Court of Justice (CCJ), the two final courts in the region, will follow it and because it represents an important philosophical change for all superior courts in the region. The new principle was approved in AG of St Kitts and Nevis v Reynolds:71
Neither their Lordship’s Board nor the House of Lords is now bound by its own decisions, and it is for them, in the very exceptional cases in which this Board or the House of Lords has plainly erred in the past, to correct those errors.72
While, as discussed below, the Privy Council is not bound to precedent, it too has been influenced by the more liberal attitude toward the overruling of precedent and has been less conservative in its approach. Vivid examples are seen in the now famous case of Pratt and Morgan73 and in the line of death row cases, discussed further in the following section. In Pratt, the Privy Council departed from its own precedent in Riley74 and agreed that undue delay in hanging prisoners on death row could consti-tute cruel and inhumane punishment as prohibited under s 17 of the Constitution of Jamaica.
Notwithstanding, the power to overrule decisions, such a power is still only to be exercised sparingly.75 In particular, where the court is asked to deviate from precedent in cases which involve questions of policy or highly controversial issues, it will not be moved easily.
Persistent overruling
Usually, when a final court of appeal overrules a past decision, this guarantees a certain finality to the question at hand and it is not expected that the older decision will be revived at a later sitting.76 For example, in Rees v Darlington Memorial Hospital NHS Trust,77 the House of Lords was invited to overturn its earlier precedent of some four years on the question of whether a disabled woman was entitled to costs attrib-uted to her disability of bringing up a healthy child in a case where that child had
68 [1972] AC 944, p 1026.
69 Above, fn 59.
70 (1990) 2 All ER 908. See also British Railways Board v Herrington [1972] AC 877, where the House of Lords refused to follow a previous legal principle relating to the duty of care owed by an occupier or land to the trespassers.
71 (1979) 43 WIR 108, p 123, (Privy Council) St Kitts and Nevis.
72 But note that ordinary practice directions from the English courts will not bind Caribbean courts. See Mohammed v Home Construction Ltd (1988) 43 WIR 380, (Trinidad and Tobago). An English practice direction on civil procedure could not have effect unless it had been adopted in the jurisdiction.
73 (1993) 43 WIR 340.
74 [1982] 3 All ER 469 (Privy Council); [1983] 1 AC 719.
75 See, eg, Knuller v DPP [1973] AC 435, p 455.
76 Cross and Harris note, for example, that there has been no case where this has occurred. Above, fn 18, at p 112.
77 [2004] 4 LRC 102
been born as a result of negligence on the part of the hospital in a failed sterilisation.
The House of Lords said:
It would reflect no credit on the administration of the law if a line of English authority were disapproved in 1999 and reinstated in 2003, with no reason for a change beyond a change in the balance of judicial opinion.78
In other words, this was a vote for stability and consistency.
To overrule and then revive decisions at ‘whim’ would certainly import a high degree of unpredictability into a legal system valued for its constancy. Yet, this kind of inconsistency has been the experience in the Commonwealth Caribbean in recent times. In a line of cases on questions involving the death penalty, such as whether undue delay or its mandatory nature violates the constitutional guarantee of cruel and inhuman punishment, or whether death row prisoners were entitled to stays of execution while awaiting the outcomes of their applications to international bodies, there has been extraordinary vacillation by the Privy Council.79
Theoretically, this unpredictability can be partly explained by the fact that these cases spring from different jurisdictions. However, the more likely explanation is the deep philosophical, ideological and policy issues at play, giving fuel to the notion that there are no ‘right answers’ in law for such hard questions, particularly where they involve the Constitution. It also underscores the notion that such difficult issues are best handled by persons within the society and not by judges disconnected by culture, geographical distance and social reality.