Restitution Discussion Group Archives
| Sender: |
Robert Stevens |
| Date: |
Thu, 17 Oct 2002 11:53:47 +0100 |
| Re: |
Great Peace |
Solle v Butcher and Magee v Pennine Insurance are not
the only decisions of Lord Denning that Great Peace is departing from.
In Miliangos v George Franks the Court of Appeal (with the leading judgment
from Lord Denning) held that a Court of Appeal decision which is inconsistent
with a preceding House of Lords decision is still binding upon the Court
of Appeal. We now have conflicting Court of Appeal decisions on this point
(see also Noble v Southern Railway).
Where Court of Appeal decisions conflict the Court of
Appeal in a subsequent case is generally thought to be able to choose
which to follow.
Unfortunately, unlike most legal rules this confusion
cannot be settled by the House of Lords as any statement in the House
on this issue will necessarily be obiter (eg Lord Simon's approval of
the view of Lord Denning in the HL in Miliangos).
Whilst as a matter of principle I would agree that Solle
v Butcher is wrong I wonder whether the court should have been so bold.
Even if Solle v Butcher is accepted, this was not an appropriate case
for the exercise of the court's discretion, as Toulson J demonstrated
in his superb judgment.
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