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Source: p 84 Bottom. Introduction to The Study of Law (2010, 7 ed) by Stephen M Waddams.

  1. Miliangos v. George Frank (Textiles) Ltd., [19761 A.C. 433 (H.L.). It can never be part of the ratio decidendi of a House of Lords decision that the Court of Appeal [hereafter EWCA] should have considered itself bound by earlier authority. If the substantive conclusion of the Court of Appeal is correct the House of Lords is bound to affirm it, however much it may disapprove the conduct of the Court of Appeal.

I reference solely the UKSC, as it superseded the Appellate Committee of the HoL.

Why's the above true? Wouldn't this constraint on the UKSC, cause the UKSC to acquiesce in judicial activism by EWCA (even if the EWCA's substantively correct)?

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Stare decisis (i.e. case law developed through precedent) is designed to be a flexible tool that usually, but not always, honors past precedents and deviates from past precedents under a variety of circumstances. If the UKSC believes that an old precedent should be superseded, getting the law right is more important than following a precedent that has outlived its usefulness. And, while the EWCA is supposed to defer to the UKSC, the UKSC does not have to defer to the precedent that that the EWCA should have deferred to in the same way.

Also, keep in mind that the line between when new facts or circumstances make a past precedent no longer applicable, and when the precedent itself is contradicted, is often not as clear in practice as it is in theory.

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If the Court of Appeal's decision is correct, albeit based on flawed reasoning, how do you overturn it? What order would the Supreme Court issue?

In Miliangos v George Frank (Textiles) Ltd, the Court of Appeal correctly anticipated that the House of Lords would depart from its own precedent, and entered judgment in favour of Miliangos. Strictly speaking, that was naughty. However, since the House of Lords agreed on the substantive point that Miliangos deserved to keep his favourable result, the outcome was that the House of Lords affirmed the Court of Appeal's decision.

Now, what is the ratio decidendi of the House of Lord's decision? Nobody can ever agree on the ratio of anything, but on the face of the judgment the House of Lords is basing its decision on the value of adhering to a more fundamental principle at the expense of a precedent where the basis of that precedent is practical and those practical considerations have ceased to exist. The ratio is not 'the Court of Appeal should have considered itself bound by earlier authority.'

The House of Lords or Supreme Court does not acquiesce in the Court of Appeal's judicial activism. It criticises it publicly, as it did in the Miliangos case.

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