Introduction
The doctrine of precedent, or stare decisis, forms the backbone of the English legal system, ensuring consistency and predictability in judicial decisions. Courts are generally bound to follow rulings from higher courts within the same hierarchy, fostering a sense of legal certainty. However, rigid adherence to precedent can sometimes hinder justice in cases where societal norms, legal principles, or factual contexts have evolved. This essay explores the circumstances under which courts should depart from precedent, focusing on two landmark cases: Donoghue v Stevenson (1932), which marked a progressive deviation in the law of negligence, and Caparo Industries plc v Dickman (1990), where the approach to establishing a duty of care stirred debate over whether deviation from prior principles was justified. By examining these cases, this essay will argue that courts should depart from precedent when necessary to adapt to changing societal needs or to correct outdated legal principles, provided such departures are principled and reasoned.
The Doctrine of Precedent and the Need for Flexibility
The doctrine of precedent operates on the principle that like cases should be decided alike, promoting fairness and stability in the legal system. As Hart (1994) notes, this principle underpins the authority of judicial decisions, ensuring that lower courts adhere to the rulings of higher courts unless compelling reasons exist to depart. However, absolute adherence can perpetuate outdated or unjust rules, particularly in a rapidly changing society where legal principles must evolve alongside new social, economic, and technological realities.
Indeed, the House of Lords (now the Supreme Court) established in the 1966 Practice Statement that it could depart from its own previous decisions when it appears “right to do so” (Judicial Committee of the Privy Council, 1966). This marked a significant shift, recognising that the highest court must retain flexibility to overrule precedents that no longer serve justice. While this power is exercised sparingly to avoid undermining legal certainty, it highlights the judiciary’s acknowledgment that deviation is sometimes necessary to address societal progress or correct errors in prior reasoning. The question, therefore, is not whether courts should depart from precedent, but under what conditions such departures are justified. This issue is explored through the analysis of Donoghue v Stevenson and Caparo Industries v Dickman.
Donoghue v Stevenson: A Justified Departure in Negligence Law
One of the most celebrated instances of departure from precedent is Donoghue v Stevenson [1932] AC 562, often regarded as the foundation of modern negligence law. Prior to this case, the law of negligence was narrowly construed, with liability typically limited to situations involving contractual relationships or specific categories of harm, as seen in cases like Winterbottom v Wright (1842) 10 M&W 109. In Donoghue, the claimant suffered illness after consuming ginger beer containing a decomposed snail, despite having no contractual relationship with the manufacturer. The House of Lords, in a groundbreaking decision, held that a duty of care existed between the manufacturer and the ultimate consumer, establishing the ‘neighbour principle’ articulated by Lord Atkin: one must take reasonable care to avoid acts or omissions that could foreseeably harm those closely and directly affected.
This decision represented a significant departure from earlier precedents, as it expanded the scope of liability beyond privity of contract. The justification for this deviation was rooted in the changing nature of industrial society in the early 20th century, where mass production meant that consumers often had no direct relationship with manufacturers. Adhering to outdated rules would have denied justice to individuals harmed by defective products. As Lunney and Oliphant (2013) argue, the decision was not merely a legal innovation but a necessary response to evolving social realities, demonstrating that courts should depart from precedent when it no longer aligns with contemporary values or practical needs. The impact of Donoghue continues to resonate, shaping tort law and illustrating how principled departures can advance justice without undermining legal stability.
Caparo Industries v Dickman: A Controversial Deviation in Duty of Care
In contrast to the widely accepted departure in Donoghue, the decision in Caparo Industries plc v Dickman [1990] 2 AC 605 sparked debate over whether the court’s deviation from prior approaches to duty of care was justified. Before Caparo, the scope of duty of care had been broadened through cases such as Anns v Merton London Borough Council [1978] AC 728, which adopted a two-stage test focusing on foreseeability and whether policy reasons negated a duty. However, this test was criticised for being too expansive, potentially imposing liability in an unpredictable manner.
In Caparo, the House of Lords addressed a claim by shareholders who relied on negligently prepared audit reports, suffering financial loss. The court introduced a new three-stage test for establishing a duty of care: foreseeability of harm, proximity between the parties, and whether it is fair, just, and reasonable to impose a duty. This marked a retreat from the broader Anns test, aiming to restrict liability in economic loss cases. Critics, however, argue that this departure introduced uncertainty, as the subjective criterion of ‘fairness’ lacks clear definition (Howarth, 1991). Others, such as Weir (2000), suggest that the decision was a necessary corrective to prevent an unmanageable expansion of liability, particularly in commercial contexts where reliance on professional advice varies widely.
Arguably, the deviation in Caparo reflects the judiciary’s attempt to balance individual justice with broader policy considerations, such as protecting professionals from excessive claims. Yet, the controversy surrounding the fairness criterion illustrates a potential pitfall of departing from precedent: without clear guidelines, such deviations can undermine predictability. This case thus raises the question of whether courts should depart from precedent only when the new approach offers greater clarity and coherence—a standard that Caparo does not wholly meet in the eyes of some scholars.
Broader Implications for Departure from Precedent
The cases of Donoghue v Stevenson and Caparo Industries v Dickman highlight contrasting justifications and challenges in departing from precedent. In Donoghue, the departure was rooted in adapting the law to societal changes, ensuring that justice was accessible to consumers in a modern industrial context. In Caparo, the deviation sought to refine and limit the scope of liability, though it introduced elements of subjectivity that continue to be debated. These examples suggest that courts should depart from precedent when either societal evolution demands legal adaptation or when existing principles risk unjust outcomes or uncontrolled expansion of liability. However, such departures must be guided by clear reasoning and, where possible, objective criteria to maintain legal certainty.
Furthermore, the power to depart from precedent, especially as enshrined in the 1966 Practice Statement, underscores the judiciary’s role as not merely interpreters but also shapers of the law. While this flexibility is essential, it must be exercised cautiously to avoid eroding the foundational principle of stare decisis. Generally, departures are most justified when they address significant gaps or injustices in the law, as seen in Donoghue, rather than introducing ambiguous standards, as arguably occurred in Caparo.
Conclusion
In conclusion, courts should depart from precedent when adherence to prior decisions would perpetuate injustice, fail to reflect societal changes, or result in unworkable legal principles. The landmark ruling in Donoghue v Stevenson exemplifies a justified departure, expanding the law of negligence to protect consumers in a changing industrial landscape. Conversely, Caparo Industries v Dickman illustrates a more controversial deviation, where the shift to a three-stage test for duty of care aimed to curb excessive liability but introduced uncertainty. These cases underscore the importance of balancing legal stability with adaptability, ensuring that departures are principled and reasoned. Ultimately, the judiciary must wield its power to overrule precedent with restraint, prioritising clarity and justice to maintain public confidence in the legal system. The ongoing challenge lies in discerning when deviation serves the greater good without undermining the predictability that precedent provides.
References
- Hart, H.L.A. (1994) The Concept of Law. 2nd ed. Oxford: Oxford University Press.
- Howarth, D. (1991) Negligence after Murphy: Time to Rethink. Cambridge Law Journal, 50(1), pp. 58-71.
- Judicial Committee of the Privy Council (1966) Practice Statement (Judicial Precedent). [1966] 1 WLR 1234.
- Lunney, M. and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press.
- Weir, T. (2000) An Introduction to Tort Law. 2nd ed. Oxford: Clarendon Press.
