учебный год 2023 / Appeals-Precedent

Appeals and the Doctrine of Precedent Author(s): O. M. Stone

Source: The Modern Law Review, Vol. 14, No. 4, (Oct., 1951), pp. 493-496 Published by: Blackwell Publishing on behalf of the Modern Law Review

Stable URL: http://www.jstor.org/stable/1089369

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have the Disciplinary Committee and the Solicitors' Practice and Remuneration Rules. Nevertheless the realities of the two cases

are too similar for one's peace of mind. If in fact the Solicitors' Rules produce the result reached in this case-and reasons have been advanced for doubting it-then it may be cogently argued that they too are contrary to public policy just as much as those of the B.M.A. in Pratt's Case, or those of the Association of Dental Manufacturers and Traders recently considered by the Monopolies Commission (see 14 M.L.R. 195).

And even if the solicitor's conduct did, as must be assumed,

constitute a technical breach of the Rules, it is respectfully submitted to the Law Society that they did little service to the profession in instituting proceedings in this case. The lay Press constantly

publish complaints about the alleged high legal costs in conveyancing matters. Most of these complaints are unfair and misconceived but this case gives the critics something to get their teeth into and hardly seems likely to reconcile the public to the much-needed increases in professional scales of remuneration for which the Law Society is pressing. Having regard to the fact that these increases require the blessing of the Government and Parliament it was surely ill-advised gratuitously to antagonise powerful trade union interests ?

L. C. B. GOWER.

APPEALS AND THE DOCTRINE OF PRECEDENT

Vitkovice Horni a Hutni Tezirstvo v. Korner 1 marks the final phase

in the litigation of a preliminary question of procedure, namely the service of notice of a writ out of the jurisdiction under R.S.C. Ord. 11, r. 1 (e) and r. 4. The determination of this question has

diction, was restored, with the qualification (based on the precedent

1 [1951] 2 All E.R. 334.

merely obiter, whereas in the House of Lords two members think the statement was binding and three think the statement wrong but express no opinion on whether it was ratio decidendi or obiter dicta, and two of those appear to lay down a standard of proof intermediate between that required by Lord Goddard and that applied by the dissenting member (Denning L.J.) in the Court of

Appeal.

Altogether the case provides not a very satisfactory object-lesson

on the speed and cheapness of English justice, does nothing to define the graduation from ratio decidendi to obiter dictum, and may well become something of a museum piece for those who contend that the certainty of law is a childish illusion. The plaintiff, in the meantime, is now free to start his substantive action.

O. M. STONE.

LIABILITY OF INVITOR FOR ' UNUSUAL DANGER ' KNOWN TO THE

INVITEE

THEdecision of the Court of Appeal in Horton v. London Graving Dock,l which was thought to have finally set at rest the longstanding controversy over the exact duty owed by an invitor to his invitee, has now been reversed by a majority decision of the House of Lords (Lords Porter, Normand and Oaksey), two strongly dissenting opinions being delivered by Lords MacDermott and Reid: [1951] 2 All E.R. 1. The majority decision suffices to dispose of the controversy but whether in as satisfactory a manner as that arrived at previously by the Court of Appeal may be respectfully doubted.

It will be recalled that the facts of the case were that the

plaintiff was a welder employed by sub-contractors to do repairs to a trawler. Part of the work involved working upon a staging which was provided by the defendants, who were the head contractors. The floor of this staging consisted of boards five feet apart, and while working thereon the plaintiff slipped and was injured. Lynskey J. held that the plaintiff had full knowledge of the dangerous character of the staging, and that accordingly it was not an 'unusual danger' to the plaintiff within the meaning of the rule in Indermaur v. Dames.2 The Court of Appeal reversed this decision on the ground that an 'unusual danger'

danger not normally encountered in the particular circumstances and not just a danger which was unanticipated by the particular

plaintiff. Accordingly it was held that the plaintiff's knowledge of the danger was not decisive to eliminate responsibility, Willes J.,

in Indermaur v. Dames, having merely referred to a warning as one of the modes by which in some circumstances an invitor might

1 [1950] 1 All E.R. 180. See 13 M.L.R. 230. 2 (1866) L.R. 1 C.P. 274.