Per incuriam, literally translated as "through lack of care" is a device within thecommon law system ofjudicial precedent. A finding ofper incuriam means that a previouscourt judgment has failed to pay attention to relevant statutory provision or precedents.
The significance of a judgment having been decidedper incuriam is that it need not be followed by a lower court. Ordinarily, therationes 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 if the earlier judgment was decidedper incuriam.
TheCourt of Appeal for England and Wales recognised this as an exception to the general application ofstare decisis inYoung v Bristol Aeroplane Co Ltd. Judges have interpreted the meaning of the doctrine in a variety of ways.[1]
In the Court of Appeal caseDuke v Reliance Systems Ltd, SirJohn Donaldson MR stated the doctrine as follows:
I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding upon it or a statute, and that in either case it has to be shown that, had the court had this material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been placed before it or if different material had been placed before it, it might have reached a different conclusion.[2]
InSimpson v R, the English Court of Appeal preferred a definition fromBennion on Statutory Interpretation:
The basis of theper incuriam doctrine is that a decision given in the absence of relevant information cannot be safely relied on. This applies whenever it is at least probable that if information had been known the decision would have been affected by it.[3]
Examples ofper incuriam are uncommon partly because the device is perceived by upper courts as a type oflèse-majesté, and respectful lower courts prefer todistinguish such precedent cases if possible.
TheCourt of Appeal inMorelle Ltd v Wakeling [1955] 2 QB 379 stated that as a general rule, the only cases in which decisions should be held to have been givenper incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned and so in such cases some part of the decision or some step in reasoning on which it is based is found, on that account, to be demonstrably wrong.
InR v Northumberland Compensation Appeal Tribunal ex parte Shaw [1951] 1 All ER 268, a divisional court of theKing's Bench division declined to follow a Court of Appeal decision on the ground that the decision had been reachedper incuriam for failure to cite a relevantHouse of Lords decision.
Some academic critics have suggested thatRe Polemis[4] was decidedper incuriam as it did not rely upon the earlier decision inHadley v Baxendale 1854.
Similarly, others[5] have suggested thatFoakes v Beer[6] was decidedper incuriam as it failed to note the recent House of Lords decision inHughes v Metropolitan Railway Co 1877.[7]