This blog is called Per Incuriam. What does per incuriam mean?
‘Per incuriam’ is, apparently, Latin for ‘carelessly.’ I’ve never studied Latin, nor had any desire to. I studied law in the late-90s after Lord Woolf’s Access to Justice reforms which led to the Civil Procedure Rules, simplified civil litigation; and which did for a lot of – but not all – legal Latin.
The system of precedent – courts being bound by the legal reasoning in earlier decisions – means having to read pre-Woolf reform cases where legal Latin is used more. When I started reading the law, I was lazy in looking up the Latin words and, for a while, read about hearings ‘in camera’ slightly puzzled as to why I’d never seen pictures or film of court hearings. When I did look it up, I discovered in camera means ‘in private.’ So definitely not filmed or photographed.
Indeed, the taking of photographs in courts is prohibited by section 41 of the Criminal Justice Act 1925. Sketching is banned too, so those court artist drawings are done out of court based on what the artist remembers of the scene in court. Perhaps that’s why they always look impressionistic. Section 32 of the Crime and Courts Act 2013 permitted exceptions and some Court of Appeal hearings have been televised since then. And Supreme Court are cases routinely televised – they are on camera unless in camera.
I’m generally against legal Latin because it serves to obscure rather than illuminate the law. But there remain some concepts for which there is no simple English substitution. In these cases, continuing to use the Latin makes sense.
What does per incuriam mean? Where a case is decided without the court considering a relevant legal principle – usually in a statute, a piece of secondary legislation or a case – then the decision is described as per incuriam and it may have no value in terms of precedent. It’s not binding because an applicable legal authority was not considered.
Our system of precedent is itself governed by precedent and a decision made per incuriam is one of the three instances in which the Civil Division of the Court of Appeal does not have to follows its previous decisions. Here’s what Lord Greene, Master of the Rolls, said in Young v Bristol Aeroplane Co Ltd  KB 718:
On a careful examination of the whole matter we have come to the clear conclusion that this court [the Court of Appeal] is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarize:
(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.
(2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.
(3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.
Why is this blog called per incuriam? It’s a quip suggesting that the contents are not always written with the greatest of care or completeness of understanding.
Crime and Courts Act 2013, s 32 (link is to legislation.gov.uk)
Criminal Justice Act 1925, s 41 (link is to legislation.gov.uk)
Young v Bristol Aeroplane Co Ltd  KB 718 (link is to bailli.org)
Lord Chancellor’s Department, Access to Justice, Final Report (Stationery Office Books 1996) (link is to national archives.gov.uk)