Understanding the Law
September 7, 2018
Understanding important principles in law

Per incuriam

You were in court when an important decision was made. The lawyers on both sides argued and put forth precedents, but everything appeared to be complicated and confused. This is because, to the layman, some principles in law are difficult to comprehend. This is your opportunity to understand some important principles in law.

The doctrine of stare decisis

The doctrine of stare decisis is the foundation on which the common law rests. Because of stare decisis, precedents are made and judges are required to decide in the same way as similar cases that were decided in their highest court. Hence, “save and except in certain exceptional cases, a court is bound to follow previous decisions of its own” to ensure consistency and finality (A B C & D v E) HCVAP No. 1 of 2011. Decisions in one’s jurisdiction are binding, whereas those outside are persuasive. The decisions outside one’s jurisdiction would become binding. One would recall how Caribbean states tried to comply with Pratt and Morgan, the Jamaican Case that was decided by the Privy Council. In that case the justices decided that no one should be on death row for more than five years. After that there was essentially a scramble to adhere to this precedent knowing very well that a similar case from another jurisdiction to the Privy Council would be treated in the same way. Cases that do not follow the stare decisis principle are said to have been decided per incuriam.

Per incuriam

The principles of per incuriam is an exception to the stare decisis rule, and was established in the case of Young v Bristol Aeroplane Limited [1944] K.B. 718. In the case of A B C & D v E, the justices noted that, had the court, in the cases of Morgan & Morgan Trust Corporation v Fiona Trust & Holding Corporation et al (No.13 of 2005) and TSJ Engineering Consultant Ltd. v Al Rushaid Petroleum Investment Company and another (No. 24 of 2010) two cases from the Virgin Islands, “been properly assisted with the authorities that were available at that time, the case would have been decided differently.” They therefore concluded that the decisions were arrived at per incuriam, (Latin) that is, “through lack of care”. In short, in the decisions the judges did not take into account relevant precedents.
TSJ Engineering Consultant Ltd. v Al Rushaid Petroleum Investment Company and another Morgan & Morgan Trust Corporation v Fiona Trust & Holding Corporation et al, used the same rational and decided that Norwich Pharmacal relief for disclosure of information could not be classified as injunction or final decision and hence leave of the Court had to be sought. In A B C & D v E (HCVAP 2011/001), the judges did not follow the above precedent. They found other persuasive and binding precedents.


The exceptions to stare decisis were restated in the case of Brandwood & others Bakewell Management Limited in the Court of Appeal in England in 2003. Ward LJ stated (a) when the Court is confronted with two conflicting decisions of its own, then it may decide which of two decisions it will follow. (b) a decision of its own though not expressly overruled, cannot in its opinion stand with a decision of a higher court ( in this case the Privy Council) which is binding. (c) the court is satisfied that its prior decision was given per incuriam. He also sets out the guiding principles for a court to follow when it concludes that a decision is per incuriam.

Ada Johnson is a solicitor and barrister-at-law. E-mail address is: exploringthelaw@yahoo.com