Date: Mon, 3 Jul 2006 15:45:13 -0400

From: Lionel Smith

Subject: Question from John Murphy

Surely any judge who thought a decision should be overruled but hesitated solely on the ground that the earlier judge was still alive would be aware that this was entirely unprincipled and so would never admit it, however diplomatically, in public? Overruling raises a lot of difficult questions but I have never heard the suggestion that it should depend on the state of anyone's health.

There is a tenuously related story, however, that can be verified by anyone in the law reports. In Nicholls v. Ely Beet Sugar Factory Ltd., [1936] 1 Ch. 343 (C.A.) at 349, Lord Wright M.R. said of Pollock on Torts that it was "a work, fortunately not a work of authority, but to which we are all as lawyers indebted". This was a small joke because in those days a text book could not be authoritative until its author was dead (as I have heard, since otherwise the author might well change his or her mind). But Mr. Geoffrey P. Langworthy, Esq., the barrister who reported the case much more rapidly for the Law Times, did not get the joke and so you can find Pollock's book described by Lord Wright at 154 L.T. 531, 533 as: "a work, unfortunately not a work of authority, but to which we are all as lawyers indebted".

Those were the days.

Lionel

On 29/6/06 08:18, "John R Murphy" wrote:

Dear all,

I got the following question put to me by a colleague:

"Can you think of any cases in which a judge has said something to the effect that: "The court would have liked to have overruled this precedent some years ago but felt unable to do so while the judge responsible for the precedent was still alive"? Obviously there can't have been anything so brutally worded, and in English law I suppose it could only happen after 1966, but basically I'm looking for examples of where judges have clearly been unwilling to disturb a precedent until the precedent-setting judge was no longer around".

I couldn't think of any case off the top of my head. Is there anyone out there who knows of any such statement?

<<<< Previous Message  ~  Index  ~  Next Message >>>>>