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The Meaning of "Per Incuriam"

Author(s): D. G. Valentine
Source: The Modern Law Review, Vol. 18, No. 6 (Nov., 1955), pp. 602-604
Published by: Wiley on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1090820
Accessed: 25-04-2017 09:34 UTC

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602 THE MODERN LAW REVIEW VOL. 18

of
ofthe
the
close,
close,
and therefore
and therefore
greater in extent
greater
that the ones
in extent
claimed that
in
incounts
countsone andonefourand
of the
four
presentofaction,
the there
present
existed action,
the th
doubt
doubt whether
whetherin proving
intheproving
larger easement
the the
larger
plaintiffs
easement
had t
proved
proved the lesser.
the lesser.
It was heldItthat
wasthere
held
was nothing
that there
objection-was n
able
ableto to
this this
on the on
grounds
theofgrounds
variance, as of
the larger
variance,
easementasof the la
necessity
necessityincluded
included
the lesser. the lesser.
On this decision, Danckwerts J. comments: "If i-he four
judges comprising the court had thought that the original grant
and the evidence of user had disclosed an attempt to impose on
the land a right not recognised by the law as an easement the
plaintiff's case must have failed." Further the learned judge
pointed out that this case was not cited in International Tea Stores
v. Hobbs [1903] 2 Ch. 165 so that he throws doubt on some of the
dicta of Farwell J. in that case and does not follow them. It is
on the authority of these two cases that Danckwerts J. felt h
obliged to hold that a right to walk about, to sit down and po
to picnic can exist as a legal easement.
This learned judgment will of necessity, it is felt, cause a
flutter among the footnotes and a reappraisal of accepted notions.
This is indeed no bad thing; yet one can only judge for oneself
whether adequate authority has been advanced for the upheaval.
D. G. VALENTINE.

THE MEANING OF " PER INCURIAM"

IN Morelle Ltd. v. Wakeling [1955] 2 W.L.R. 672; [1955] 1 All


E.R. 708, the Court of Appeal was asked to consider the meaning
of the words " per incuriam." It will be remembered that it was
held in Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 tha
the Court of Appeal was bound to follow its own previous decisions
and those of courts of co-ordinate jurisdiction except where the
court must choose between its own conflicting decisions or where
a case, although not expressly overruled, cannot stand with a
decision of the House of Lords, and finally where the court is
satisfied that its decision was given per incuriam.
In the present action a limited company registered in Eire,
but neither incorporated nor registered under the Companies Acts
and having no place of business in this country, had accepted the
transfer of the residue of a lease for a term of years of a dwelling-
house and was seeking to sue the sub-tenants for rent that had
become due after the date of this transfer. The sub-tenants
contested this claim mainly on the ground that as the co
had not obtained a licence from the Crown in mortmain, the lease
was forfeit by virtue of section 1 of the Mortmain and Charitable
Uses Act, 1888. This contention was based on the strength of
Morelle v. Watertworth [1955] 1 Q.B. 1, a case decided only a
few months previously by the Court of Appeal, holding that the

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Nov. 1955 NOTES OF CASES 608

residue of another similar lease acquired by this sa


was forfeit to the Crown.
In Morelle v. Wakeling, an attempt was made to distinguish
the previous case on the ground that the present action dealt with
registered land, while the previous one did not. Upon failure to
succeed on this point, the only hope of the plaintiffs, or rather of
the Attorney-General who appeared as amicus curiae, was to
challenge the first Morelle case as a decision that had been given
per incuriam.
In seeking to do this, several considerations were advanced:-
that the circumstances of the previous case were of a very special
and unusual character, as they related to the law of mortmain
which is both specialised and highly technical and a matter that
very infrequently comes before the courts. Secondly, that the
arguments in the case had been brief, counsel for the plaintiff
company having only been instructed in the afternoon before the
case came on for hearing. This had led to the absence of any
sufficient emphasis being placed upon the connection of the law of
mortmain with the feudal conception of land tenure, or upon the
fact that the Act of 1888 was a consolidating and amending statute.
It will be observed from this that the Attorney-General is
tacitly accepting as the major premise of his proposition that a
decision given per incuriam means a decision given through
ignorance or forgetfulness of certain relevant facts. As his minor
premise he shows that the first Morelle case was given through
ignorance or forgetfulness of certain relevant facts, which can
only lead to the conclusion that the case was decided per incuriam.
In considering this proposition, the court declared that to accept
the Attorney-General's argument would necessarily involve the
conclusion that it is open to the court to disregard an earlier
decision of its own whenever it is made to appear that the court
upon the earlier occasion had not had the benefit of the best
argument that the researches and industry of counsel could pro-
vide. As it was further stated that " such a result would plainly
be inconsistent with the maintenance of the principle of stare decisis
in our courts," it was clear that the Attorney-General's major pre-
mise was too wide. The court then substituted its own definition of
per incuriam, which though expressly declared to be " not neces-
sarily exhaustive," may be worth quoting in full.
"As a general rule," it was stated, "the only cases in which
decisions should be held to have been given per incuriam are
those given in ignorance or forgetfulness of some inconsistent
statutory provision or of some authority binding on the court con-
cerned; 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."
Though it would be inappropriate to construe these words with
the precision of a statute, it is relevant to note that the phrase

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604 THE MODERN LAW REVIEW VOL. 18

"" part
partof aof
decision
a decision
" must clearly
" must meanclearly
one, or more,
mean or all
one,of or
the
the parts
parts
of a of
decision.
a decision.
Further, the
Further,
inclusion of
thetheinclusion
two grounds of
"some
"some part
part
of the
ofdecision
the decision
or some step
orin some
the reasoning
step "in
canth
only
only mean
meanthat even
thatifeven
a part if
of the
a part
decision
ofis the
not demonstrably
decision is
wrong,
wrong, and and
for that
for reason
that not
reason
able to be
notheldable
per incuriam,
to be heldit p
may
may still
still
be set
beaside
setifaside
its reasoning
if itsis reasoning
demonstrably is wrong.
demonst
This
statement
statement mustmust
be qualified,
be qualified,
however, to however,
the extent that
toonly
the the
ex
steps
steps in in
the the
reasoning
reasoning
that can here
thatbe can
considered
hereare bethose
considere
arising
as
asa aresult
result
of ignorance
of ignorance
or forgetfulness
or forgetfulness
of some statute orof some
som
binding authority-any other errors of reasoning can only be
rectified on appeal.
The import of this declaration is that the court has drawn a
distinction between a case where no argument at all has been
presented on a particular point, and one where the argument was
totally inadequate. If a relevant authority was not mentioned
the decision may be challenged; if it was mentioned, however
cursorily, the decision must stand.
D. G. VALENTINE.

JURISDICTION TO ANNUL A VOIDABLE MARRIAGE

LORD GODDARD C.J. said recently,' delivering the judgment of the


Court of Criminal Appeal, holding that a woman is incompetent to
give evidence on a criminal charge against her former husband
after she has had the marriage annulled on grounds of his
impotence: " Since the decision of the Court of Appeal in
that case,2 in Adams v. Adams3 and De Reneville v. De
Reneville 4 it is, we think, settled that the courts now regard th
parties to a voidable marriage before decree to be for all purposes
truly husband and wife. Unless there is a decree they will live
and die as married persons with all the incidents that attach to
that estate. We think it clear that the reason for the incom-
petency applies to these persons with force at least equal to
case of divorced persons. It would be artificial in the highest
degree to apply a different rule in the two cases. It is with no
disrespect that one can say that what is artificial is the old form
of sentence in these cases, which in truth perpetuates a canonical
fiction."
Before the decision in R. v. Algar, it may be doubted if the
tendency of the courts in purely domestic cases to equate the
annulment of a voidable marriage more nearly with the dissolution
of a valid marriage than the annulment of a void one was as

I In R. v. Algar [1954] 1 Q.B. 279, 284.


2 Re Eaves [1940] Ch. 109 (C.A.).
3 [1941] 1 K.B. 536 (C.A.)
4 [1948] P. 100 (C.A.).
5 My italics

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