''Per incuriam'', literally translated as "through lack of care" is a device within the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

system of

judicial precedent Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...

. A finding of ''per incuriam'' means that a previous

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

judgment has failed to pay attention to relevant statutory provision or precedents. The significance of a judgment having been decided ''per incuriam'' is that it need not be followed by a lower court. Ordinarily, the '' rationes'' 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 decided ''per incuriam''.

Examples of ''per incuriam''

Examples of ''per incuriam'' are uncommon partly because the device is perceived by upper courts as a type of ''

lèse-majesté ''Lèse-majesté'' or ''lese-majesty'' ( , ) is an offence or defamation against the dignity of a ruling head of state (traditionally a monarch but now more often a president) or of the state itself. The English name for this crime is a mod ...

'', and respectful lower courts prefer to

distinguish In law, to distinguish a case means a court decides the holding or legal reasoning of a precedent case that will not apply due to materially different facts between the two cases. Two formal constraints constrain the later court: the expresse ...

such precedent cases if possible. The

Court of Appeal An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to Hearing (law), hear a Legal case, case upon appeal from a trial court or other ...

in ''Morelle Ltd v Wakeling''

955 Year 955 ( CMLV) was a common year starting on Monday of the Julian calendar. Events By place Europe * August 10 – Battle of Lechfeld: King Otto I ("the Great") defeats the Hungarians (also known as Magyars) near Augsburg (Germa ...

2 QB 379 stated that as a general rule, the only cases in which decisions should be held to have been given ''per 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. In ''R v Northumberland Compensation Appeal Tribunal ex parte Shaw''

951 Year 951 (Roman numerals, CMLI) was a common year starting on Wednesday of the Julian calendar. Events By place Europe * King Berengar II of Italy seizes Liguria, with help from the feudal lord Oberto I. He reorganizes the territorie ...

1 All ER 268, a divisional court of the King's Bench division declined to follow a Court of Appeal decision on the ground that the decision had been reached ''per incuriam'' for failure to cite a relevant

House of Lords The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...

decision. Some academic critics have suggested that ''

Re Polemis '' In Re'' ''Polemis & Furness, Withy & Co Ltd'' (1921) is an English tort case on causation and remoteness in the law of negligence. The Court of Appeal held that a defendant can be deemed liable for all consequences flowing from his neglig ...

'' was decided ''per incuriam'' as it did not rely upon the earlier decision in ''

Hadley v Baxendale ''Hadley & Anor v Baxendale'' ''& Ors'' 854EWHC J70is a leading English contract law case. It sets the leading rule to determine consequential damages from a breach of contract: a breaching party is liable for all losses that the contracting pa ...

'' 1854. Similarly, others have suggested that ''

Foakes v Beer is an English contract law case, which applied the controversial pre-existing duty rule in the context of part payments of debts. It is a leading case from the House of Lords on the legal concept of consideration. It established the rule that p ...

'' was decided ''per incuriam'' as it failed to note the recent House of Lords decision in '' Hughes v Metropolitan Railway Co'' 1877.''Hughes v Metropolitan Railway Co'' (1876-77) LR 2 App Cas 439, 2 App Cas 439,

877 __NOTOC__ Year 877 ( DCCCLXXVII) was a common year starting on Tuesday of the Julian calendar. Events By place Europe * Summer – King Charles II ("the Bald") sets out for Italy, accompanied by his wife Richilde and a number ...

UKHL

Examples of ''per incuriam''

References

See also