учебный год 2023 / principle of precedent

NOTES OF CASES

county council hospital, were sued for negligent performance of an opera-

Governorsof St. Bartholemew'sHospital, [I909] 2 K.B. 820), they must be independent contractors who are unable to claim the benefit of the Act (Tilling, Ltd. v. Dick Kerr & Co., [I905] i K.B. 562). Atkinson, J., thought this an interesting argument to which he might have been disposed to attach some weight had it not been for two previous decisions to the contrary by which he thought himself bound. It is clear from the judgment of the majority of the Court of Appeal in Wardell v. Kent C.C., [I938] 2 K.B. 768, that the common law classification into servants and inde-

pendent contractors is not necessarily exhaustive where the interpretation of a statute is concerned, and we respectfully agree with the learned judge who is reported in [I939] 4 All E.R. 30, at p. 34, as saying: " It seems to me really almost an absurdity to ask me to regard the defendants as inde- pendent contractors. they are officers of a public body

performing a public duty imposed upon the county council, a duty which can only be performed through and by individuals."

The second, and more interesting, point concerns the nature of the authority by which the learned judge held himself bound. In two previous cases, one a decision of the Court of Appeal and the other a considered judgment of McCardie,J., it had been conceded by the plaintiff and assumed by the Court without argument that medical officers in the position of the defendants were within the protection of the statute. Whether these cases created precedents which had to be followed in the instant case is a matter on which there is little authority. The older view is summed up in Viner's Abridgment, tit. Precedents (A) 2, in which it is said that "precedents which pass without challenge of the party or debate of the Justices

the application of the maxim to situations which arise not infrequently when a court assumes a point of law in ignorance of the fact that it has previously been decided the other way after argument. A moder example of this can be found in Fisher v. Oldham Corporation, [1930] 2 K.B. 364, in which McCardie, J., refused to follow a line of decisions based on the

assumption that a police officer is the servant of the corporation which engages and pays him, in which older authorities to the contrary were not discussed or even cited. But the question in the instant case concerned the importance to be attached to an assumption about the interpretation of a statute when no conflicting judicial view had been expressed. Such an assumption must be of a persuasive and not a binding nature, and its weight must vary with its reasonableness and the length of time during

which it has passed unchallenged. If the assumption is obviously wrong,

226 MODERNLAWREVIEW Jan., 1940

as was the case in Cookneyv. Anderson (I863), i De G. J. & S. 365, where Lord Westbury assumed that the statutory provisions governing the issue before him were contained in Acts of I830 and 1832, in ignorance of the

fact that those Acts had been amended in I840, the assumption will not be by (Drummond v. Drummond (I866), L.R. 2 Eq. 335, affirmedL.R. 2 Ch. App. 32). If it is not obviously wrong,

a judge is free to accept or disregard it, and the decision will depend on whether satisfactory arguments can be adduced ex post facto in its support. But if it has stood unquestioned for some years, a judge will be loath to overrule it even if he personally thinks it wrong, and his attitude will gradually harden into one of unqualified acceptance if there continues to be no challenge. The situation is exactly comparable to that which arises when a superior court is faced with a point on which there is a consistent line of authority in the lower courts (Bourne v. Kean, [I919]

that the matter has not been argued and made the point of a decision. It is still open to be dealt with, but when one finds that for quite a long time a certain rule has been accepted as law, it would take a great deal to convince one that it was wrong." The opening words of this quotation down to "open to be dealt with" do not appear in the Law Reports or in the version in 56 T.L.R. 2, but this omission affects the clarity and not the force of the argument.

From the nature of the case, any challenge to prevent time running in favour of the assumption cannot come from the Bench, for then there would be a conflict of judicial opinion, and the remarks of Parker, C.J.,

quoted above, would apply. Acceptance or non-acceptance, therefore, could be proved only by reference to the opinion of the profession as reflected in textbooks and articles. Some confirmation of the attitude of

Atkinson, J., can be found in A.-G. v. Hancock, [1940] i All E.R. 32, where

Wrottesley, J., in deciding that the Courts Emergency Powers Act, 1939, did not bind the Crown, thought it "not unimportant and not entirely irrelevant" that an Irish Court had assumed that the similar statute passed in I9I4 did not apply to the Crown and that no person had previously come forward "either in respect of the Courts Emergency Powers Act, I914, during its pendency, or under the present Act," to maintain the contrary. The less forceful language used by the latter judge can be explained on two grounds, firstly, that Irish decisions are of persuasive authority only in this country, and secondly, that the assumption relied on concerned a statute other than the one before him, though the material parts of both were couched in almost identical language.

D. W. LOGAN.

CorporateEntity

The perennial problem, whether and in what circumstances the veil of corporate entity can be lifted appeared in a somewhat unusual setting

in Smith, Stone and Knight, Ltd. v. Birmingham Corporation, [I939] 4All E.R. II6.

The tendency rigidly to uphold the strict separation between the assets and liabilities of the corporate person and those of the incorporators

prevails in company law proper and in private law in general. A more "realistic" attitude has sometimes been adopted in revenue law. The case