''Per incuriam'', literally translated as "through lack of care" is a device within the

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...

system of

judicial precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great value ...

. A finding of ''per incuriam'' means that a previous

court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...

judgment has failed to pay attention to relevant statutory provision or precedents. The significance of a judgment having been decided ''per incuriam'' is that it need not be followed by a lower court. Ordinarily, the '' rationes'' of a judgment is binding upon lower courts in similar cases. However, a lower court is free to depart from a decision of a superior court where that earlier judgment was decided ''per incuriam''.

Examples of ''per incuriam''

Examples of ''per incuriam'' are uncommon, partly because the device is perceived by upper courts as a type of ''

lèse-majesté Lèse-majesté () or lese-majesty () is an offence against the dignity of a ruling head of state (traditionally a monarch but now more often a president) or the state itself. The English name for this crime is a borrowing from the French, w ...

'', and respectful lower courts prefer to

distinguish The ruling made by the judge or panel of judges must be based on the evidence at hand and the standard binding precedents covering the subject-matter (they must be ''followed''). Definition In law, to distinguish a case means a court decides th ...

such precedent cases if possible. The Court of Appeal in ''Morelle Ltd v Wakeling''

955 Year 955 ( CMLV) was a common year starting on Monday (link will display the full calendar) of the Julian calendar. Events By place Europe * August 10 – Battle of Lechfeld: King Otto I ("the Great") defeats the Hungarians (also ...

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. In ''R v Northumberland Compensation Appeal Tribunal ex parte Shaw''

951 Year 951 ( CMLI) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Europe * King Berengar II of Italy seizes Liguria, with help from the feudal lord Oberto I. He re ...

1 All ER 268, a divisional court of the King's Bench division declined to follow a Court of Appeal decision on the ground that the decision had been reached ''per incuriam'' for failure to cite a relevant

House of Lords The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...

decision. Some academic critics have suggested that ''

Re Polemis '' In Re'' ''Polemis & Furness, Withy & Co Ltd'' (1921) is an English tort case on causation and remoteness in the law of negligence. The Court of Appeal held that a defendant can be deemed liable for all consequences flowing from his negli ...

'' was decided ''per incuriam'' as it did not rely upon the earlier decision in ''

Hadley v Baxendale ''Hadley & Anor v Baxendale'' ''& Ors'' 854EWHC J70is a leading English contract law case. It sets the leading rule to determine consequential damages from a breach of contract: a breaching party is liable for all losses that the contracting par ...

'' 1854. Similarly, others have suggested that ''

Foakes v Beer is an English contract law case, which applied the controversial pre-existing duty rule in the context of part payments of debts. It is a leading case from the House of Lords on the legal concept of consideration. It established the rule that ...

'' was decided ''per incuriam'' as it failed to note the recent House of Lords decision in ''

Hughes v Metropolitan Railway Co ''Hughes v Metropolitan Railway Co'' 877is a House of Lords case considered unremarkable for many years until it was resurrected by Lord Denning in the case of ''Central London Property Trust Ltd v High Trees House Ltd'' in his development of t ...

'' 1877.''Hughes v Metropolitan Railway Co'' (1876-77) LR 2 App Cas 439, 2 App Cas 439, 877UKHL

Examples of ''per incuriam''

References

See also