doctrine per incuriam

1. ‘PER INCURIAM’
U.K.
‘Incuria’ literally means ‘carelessness’ and the phrase ‘‘per incuriam’’ is used to
describe judgments that are delivered with ignorance of some statute or rule.
It is well-settled in the English doctrine of precedents that a judgement rendered
in ignorance of a statute, or a rule having statutory force, which would have
affected the result, is not binding on a court otherwise bound by its own
decisions.
In London Street Tramways Co. v. London County Council – (1898) AC 375,
the House of Lords recognized that such a judgment was an exception to the
rule that the House of Lords was absolutely bound by its own judgments.
Young v Bristol Aeroplane Company Limited, [1944] 1 KB 718, Court of
Appeal
The Court of Appeal is bound to follow its own decisions and those of courts of
co-ordinate jurisdiction, and the "full" court is in the same position in this respect
as a division of the court consisting of three members.
The only exceptions to this rule are: -
(1.) The court is entitled and bound to decide which of two conflicting decisions
of its own it will follow;
(2.) The court is bound to refuse to follow a decision of its own which, though not
expressly overruled, cannot, in its opinion, stand with a decision of the House of
Lords;
(3.) The court is not bound to follow a decision of its own if it is satisfied that the
decision was given ‘per incuriam’ , e.g., where a statute or a rule having statutory
effect which would have affected the decision was not brought to the attention of
the earlier court.
The Court of Appeal in Morelle Ltd v Wakeling [1955] 1 All ER 708, [1955] 2
QB 379 stated that 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.
Sir John Donaldson MR in the English Court of Appeal in Duke v Reliance
Systems Ltd [1987] 2 WLR 1225 explained it as follows:
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 upon 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. That is ‘per incuriam’.

2. 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 here reached a different conclusion. That appears to me to be the position
at which we have arrived today.
Cassell & Co Ltd v Broome (No 1)[1972] UKHL 3 (23 February 1972)1
…………………..I turn now to the first question. Does Rookes v. Barnard
correctly state the law with regard to exemplary damages?
The Court of Appeal held that it did not. It was said that it was a decision given
per incuriam. The Court of Appeal refused to allow it and Judges were told to
direct juries in accordance with the law as understood before that case.
Decisions of this House are binding on all inferior courts and must be followed by
them. There are, I think, two grounds on which the Court of Appeal can justifiably
refuse to follow what has been said in this House. The first is that what was said
was obiter. While it might be argued that the observations made with regard to
exemplary damages in so far as they related to libel actions were obiter as no
question with regard to them arose in Rookes v. Barnard where the question
was, could such damages be given for intimidation, the Court of Appeal did not
base their action
on this ground. The second is where there are two clearly inconsistent decisions
of this House, and the Court of Appeal has then to choose which to follow. In the
Court of Appeal it was asserted that what was said in Rookes v. Barnard was in
conflict with two previous decisions of this House, Hulton v. Jones [1910] A.C.20
and Ley v. Hamilton (1935) 153 L.T.384 but, as I read the judgments, the Court
of Appeal did not proceed upon this ground.
To say that a decision of this House was given per incuriam is, to say the least,
unusual and could be taken, though I cannot believe it was so intended, as of a
somewhat offensive character. While I regret the use of this expression, I doubt if
it was intended to mean more than that the questions involved deserved more
consideration in relation, among other things, to libel actions. If that is what was
meant, it is, I must confess, a view with which I have considerable
sympathy…………………………………….
The Court of Appeal found themselves able to disregard the decision of this
House in Rookes v. Barnard by applying to it the label per incuriam.
That label is relevant only to the right of an appellate court to decline to follow
one of its own previous decisions, not to its right to disregard a decision of a
higher appellate court or to the right of a Judge of the High Court to disregard a
decision of the Court of Appeal. Even if the jurisdiction of the Court of Appeal
had been co-ordinated with the jurisdiction of this House and not inferior to it the
label per incuriam would have been misused. The reasons for applying it were
said to be: first, that Lord Devlin had overlooked two previous decisions of this
House in Hulton v. Jones ([1910] A.C. 20) and Ley v. Hamilton (ubi sup);
secondly, that the "two categories " selected as those in which the power to
award exemplary damages should be retained had not been previously
suggested by counsel in the course of their arguments…………………….
1
Cite as: [1972] UKHL 3, [1972] 2 WLR 645, [1972] AC 1027

3. India
Philip Jeyasingh vs The Joint Registrar (1992) 2 MLJ 309
…….Edition, Vol.26, at 296 to 302, Paragraphs 577 to 580. It is sufficient to
extract the following passages found therein for the purpose of this case:
A decision of the House of Lords occasioned by members of the House being
equally divided is as binding on the House and on all inferior Tribunals as if it
had been unanimous. Decisions of the House of Lords are binding on every court
inferior to it. It is not open to the Court of Appeal to advise judges to ignore
House of Lords decisions on the ground that they were decided per incuriam or
are unworkable. But if there is no discernible ratio decidendi the Court of Appeal
may adopt any reasoning which appears to it correct provided it supports the
actual decision of the House. (Paragraph 577)
The decisions of the Court of Appeal upon questions of law must be followed by
Divisional Courts and Courts of first instance, and as a general rule, are binding
on the Court of Appeal until a contrary determination has been arrived at by the
House of Lords. Unlike the House of Lords, the Court of Appeal does not have
liberty to review Appeal has no greater powers than a division of the court and,
except in the cases mentioned above, has no power to overrule a previous
decision of a division of the court. Where, however, there is an apparent conflict
between two previous decisions of the court, it is not uncommon for the matter to
be argued before a full court as the decision of such a court carries greater
weight. (Paragraph 578)
A Divisional Court is bound by its own previous decisions, regardless of how
many judges are sitting, with limited exceptions in criminal cases, subject always
to the per incuriam rule. Faced with conflicting earlier decisions the court is free
to decide which to follow. Divisional Court decisions bind judges of first instance,
even of a different division, but not the Employment Appeal Tribunal.
(Paragraph 579)
There is no statute or common law rule by which one court is bound to abide by
the decision of another court of co-ordinate jurisdiction. Where, however, a judge
of first instance after consideration has come to a definite decision on a matter
arising out of a complicated and difficult enactment, the opinion has been
expressed that a second judge of first……………..
Rashmi Rekha Thatoi & Anr v.s State of Orissa & Ors 2012
……………………………..It is worth noting though the Bench treated Adri
Dharan Das (supra) to be ‘per incuriam’, as far as it pertained to grant of
anticipatory bail for limited duration, yet it has not held that the view expressed
therein that the earlier decisions pertaining to the concept of deemed custody as
laid down in Salauddin Abdulsamad Shaikh (supra) and similar line of cases
was per incuria. …………………………….
When the High Court in categorical terms has expressed the view that it not
inclined to grant anticipatory bail to the accused petitioners it could not have
issued such a direction which would tantamount to conferment of benefit by
which the accused would be in a position to avoid arrest. It is in clear violation of

4. the language employed in the statutory provision and in flagrant violation of the
dictum laid down in the case of Gurbaksh Singh Sibbia (supra) and the
principles culled out in the case of Savitri Agarwal (supra)……………….
Sibnath Koley And Ors. vs State Of West Bengal And Ors 2007
……………………Looking at the matter, in view of what has been held to mean
by ‘per incuriam’, we find that such element of rendering a decision ignorance of
any provision of the statute or the judicial authority of binding nature, is not the
reason indicated by the Full Bench in the impugned judgment, while saying that
the decision in the case of Ramkrit Singh was rendered ‘per incuriam’. On the
other hand, it was observed that in the case of Ramkrit Singh the Court did not
consider the question as to whether the consolidation authorities are Courts of
limited jurisdiction or not. In connection with this observation, we would like to
say that an earlier decision may seem to be incorrect to a Bench of a co-ordinate
jurisdiction considering the question later on the ground that a possible aspect of
the matter was not considered or not raised before the Court or more aspects
should have been gone into by the Court deciding the matter earlier but it would
not be a reason to say that the decision was rendered ‘per incuriam’ and liable to
be ignored. The earlier judgment may seem to be not correct yet it will have the
binding effect on the later Bench of co-ordinate jurisdiction. Easy course of
saying that earlier decision was rendered ‘per incuriam’ is not
permissible…………....
Official Liquidator v. Dayanand and Others (2008) 10 SCC 1
……………………….”We are distressed to note that despite several
pronouncements on the subject, there is substantial increase in the number of
cases involving violation of the basics of judicial discipline. The learned Single
Judges and Benches of the High Court’s refuse to follow and accept the verdict
and law laid down by coordinate and even larger Benches by citing minor
difference in the facts as the ground for doing so. Therefore, it has become
necessary to reiterate that disrespect to the constitutional ethos and breach of
discipline have grave impact on the credibility of judicial institution and
encourages chance litigation. It must be remembered that predictability and
certainty is an important hallmark of judicial jurisprudence developed in this
country in the last six decades and increase in the frequency of conflicting
judgments of the superior judiciary will do incalculable harm to the system
inasmuch as the courts at the grass roots will not be able to decide as to which
of the judgment…………………….