PER INCURIAM
An Exposition of the concept of Per
Incuriam in Sri Lankan Law
The
strength of a legal system lies not merely in its capacity to decide disputes,
but in its ability to correct itself without undermining its own foundations.
The doctrine per incuriam represents one such carefully regulated
mechanism. It is neither a device of insubordination nor a shortcut to avoid
precedents, but a principled exception that permits the law to undo an error
where such errors arise from ignorance of binding laws or decisions.
In
its classical formulation, a decision is said to be per incuriam literally,
“through lack of care”, when it has been rendered in ignorance or forgetfulness
of a binding statutory provision or a binding judicial authority. The doctrine does not apply merely because a
decision is considered incorrect. It applies only where the court has failed to
notice a rule of law which was directly applicable and which, had it been
considered, would necessarily have altered the outcome.² This distinction is
fundamental. It preserves the authority of precedent while ensuring that such
authority is not extended to decisions founded upon oversight of law.
The
doctrine traces its origin to the English common law system, within which the
principle of stare decisis, the binding force of precedent, was developed. The
earliest authoritative articulation of the doctrine is found in young v.
Bristol Aeroplane Co Ltd, ³ where the Court of Appeal held that it is generally
bound by its own prior decisions, subject to limited exceptions, one of which
is where the earlier decision was given per incuriam. Subsequent
authorities, including Morelle Ltd v. Wakeling,⁴ emphasized that the doctrine
must be applied sparingly and only in clear cases of oversight. These
principles have since been absorbed into Sri Lankan jurisprudence, forming part
of the inherited common law tradition.
In
Sri Lanka, the doctrine has been recognized and refined through a series of
judicial decisions. In Billimoria v. Minister of Lands and Land Development,⁵
the court acknowledged that a decision rendered without reference to a relevant
statutory provision cannot be treated as binding. Similarly, in Hettiarachchi
v. Seneviratne,⁶ the Supreme Court emphasized that the failure to consider
binding law undermines the authority of a decision. More recent jurisprudence
has reiterated this position with greater precision. In Subasinghe
Mudiyanselage Rosalin Bertha v. Maththumagala Kankanamge Juwan Appu,⁷ the Supreme
Court clarified that a decision is not per incuriam merely because it is wrong;
the defect must arise from ignorance of statute or binding precedent. This
position was reaffirmed in Mohammed Kamil Kuthubdeen v. Attorney General,⁸
where the Court further held that failure to consider evidence or material
documents does not fall within the doctrine, such matters being properly
addressed through the appellate process.
A
particularly instructive application of the doctrine in the Sri Lankan context
is found in Jane Nona and others v. Surabiel and others[1].
Thorndyke In that case, the Court of Appeal was invited to follow a Supreme
Court decision which had treated the failure to substitute legal
representatives of a deceased party in a partition action as rendering the
decree a nullity. The Court of Appeal declined to do so, holding that the
Supreme Court had failed to consider the express provisions of section 81(9) of
the Partition Law No. 21 of 1977, as amended. The earlier decision was
therefore characterized as per incuriam. This decision is significant not
merely for its conclusion, but for the constitutional and jurisprudential
principle it affirms: that statutory law prevails over judicial precedent, and
that a decision rendered in ignorance of such law cannot command binding
authority.
This
leads to a question of considerable importance: whether a judge of a lower
court may, in appropriate circumstances, decline to follow a decision of a
higher court on the ground that it is per incuriam. The answer, though
delicate, must be stated with clarity. The doctrine does not exist solely for
courts of co-ordinate jurisdiction. It is a principle of legal reasoning that
applies across the judicial hierarchy, albeit with strict limitations. Where a
lower court is confronted with a decision of a higher court that demonstrably
falls within the narrow definition of per incuriam—that is, where it is shown
that the decision was rendered in ignorance of a binding statutory
provision—the lower court is not compelled to perpetuate that error.¹⁰
However,
this power must be exercised with the utmost caution. The doctrine is not a
licence for judicial disagreement. It is a duty to be exercised only where the
oversight is clear, the ignored law is binding, and the consequence of the
omission is decisive. Anything less would undermine the very structure of
judicial authority. The decision in Jane Nona v. Surabiel illustrates this
careful balance. The Court of Appeal did not reject the Supreme Court decision
lightly; it did so only after demonstrating that the statutory provision in
question had not been considered and that its consideration would have
materially affected the outcome.
Instances
of lower courts invoking the doctrine in Sri Lanka are rare, and rightly so.
Apart from Jane Nona v. Surabiel, earlier judicial thinking may be traced to
observations in Ramanathan Chettiar v. Wickramarachchi,¹¹ where the Court of
Appeal recognised that certainty in the law must not be achieved by
perpetuating error. Although not a direct application of per incuriam, the
reasoning reflects the same underlying principle: that precedent must yield
where it is demonstrably flawed by reason of oversight of law.
The
advantages of the doctrine are both practical and principled. It enables the
correction of clear legal errors without the necessity of prolonged and costly
appellate proceedings. In appropriate cases, it allows an aggrieved party to
seek relief without incurring the substantial expenses associated with appeals,
revisions, or applications for restitutio in integrum. More importantly, it
serves a systemic function: it ensures that the law remains coherent, that
statutory provisions are not overlooked, and that judicial decisions retain
their legitimacy.
There
is also an ethical dimension to its application. Where a matter clearly falls
within the ambit of per incuriam, the role of the legal practitioner transcends
that of mere advocacy. The objective is not to secure an advantage for a
client, but to restore the law to its correct position. In such circumstances,
it is both appropriate and desirable that the legal profession exercise
restraint in the matter of fees and approach the issue as one of professional
responsibility. The correction of a per incuriam decision is not merely a
service to a client; it is a contribution to the integrity of the legal system.
Ultimately,
the doctrine of per incuriam must be understood as a doctrine of necessity, not
convenience. It exists to prevent the law from being bound by decisions that
were never properly grounded in law to begin with. Yet it must be applied
sparingly, lest it erode the certainty that the doctrine of precedent is
designed to secure. When used with discipline and care, it enables the law to
correct itself without diminishing its authority. When misused, it risks
unsettling the very foundations it seeks to preserve.
Footnotes
Young
v. Bristol Aeroplane Co Ltd [1944] KB 718.
Subasinghe
Mudiyanselage Rosalin Bertha v. Maththumagala Kankanamge Juwan Appu, S.C.
Appeal No. 160/2016, S.C.M. 02.12.2022.
Young
v. Bristol Aeroplane Co Ltd [1944] KB 718.
Morelle
Ltd v. Wakeling [1955] 2 QB 379.
Billimoria
v. Minister of Lands and Land Development (1978–79–80) 1 Sri LR 10.
Hettiarachchi
v. Seneviratne, Deputy Bribery Commissioner (1994) 3 Sri LR 293.
Subasinghe
Mudiyanselage Rosalin Bertha v. Maththumagala Kankanamge Juwan Appu, S.C.
Appeal No. 160/2016, S.C.M. 02.12.2022.
Mohammed
Kamil Kuthubdeen v. Attorney General, S.C. (Spl) L.A. No. 24/2024, S.C.M.
11.07.2025.
Jane
Nona and others v. Surabiel and others (2013) 1 Sri LR 346.
See
also Young v. Bristol Aeroplane Co Ltd [1944] KB 718; Government of Andhra
Pradesh v. B. Satyanarayana Rao (2000) 4 SCC 262 (persuasive authority).
Ramanathan
Chettiar v. Wickramarachchi (1978–79) 2 Sri LR 395.
Per Incuriam and Section 189 of the
Civil Procedure Code. Authorities
The
law, in its mature form, recognizes that not all judicial errors are of the
same character, and therefore not all admit of the same remedy. Some errors are
mechanical, arising from slips of the pen or failures of expression; others are
juridical, arising from a failure to notice or apply the law itself. The
distinction between these two classes of error is reflected, in Sri Lankan law,
in the contrast between the doctrine of per incuriam and the corrective
jurisdiction conferred by section 189 of the Civil Procedure Code.
Section
189 embodies a limited but important power. It permits a court, at any time, to
correct clerical or arithmetical mistakes in its judgments, decrees, or orders,
as well as errors arising from any accidental slip or omission. The purpose of
the section is not to reopen adjudication, but to perfect the record—to ensure
that the decree accurately reflects what the court intended to decide. It is,
therefore, a power of correction, not reconsideration.
This
principle finds authoritative expression in Dharmadasa v. Meraya,⁽¹⁾ where the
Supreme Court was confronted with a partition decree that had failed to give
effect to a life interest clearly reserved in a deed produced at trial. The
omission was not the result of any conscious adjudication, but rather the
consequence of the trial judge’s failure to
notice the documentary evidence. A successor judge, acting under section 189,
amended the final decree so as to include the life interest. Upholding this
amendment, the Supreme Court held that the failure to notice the reservation of
the life interest constituted an “accidental slip or omission” within the
meaning of the section. The Court emphasised that in a partition action, it is
the duty of the judge to investigate title not merely from oral testimony but
from the entirety of the documentary record. Where that duty has not been fully
discharged, and the resulting decree fails to reflect the true legal position
disclosed by the evidence, section 189 may be invoked to correct the error. ⁽¹⁾
The
decision in Dharmadasa v. Meraya is firmly grounded in earlier authority. In
Silva v. Silva (1910)⁽²⁾
and Silva v. Silva (1912),⁽³⁾ it was recognized that a decree in a
partition action may be amended to correct errors arising from oversight, even
after the entry of the final decree. These decisions elucidate the principle that the court retains a
continuing jurisdiction to ensure that its decree is accurate in form and
expression. They do not, however, suggest that the court may revisit the
substance of its decision. The distinction is critical. Section 189 permits the
correction of what the court failed to express, but it does not permit the
court to change what it has decided.
It
is at this point that the doctrine of per incuriam must be carefully
distinguished. Unlike section 189, per incuriam does not operate within the
confines of the same proceedings. It is a doctrine of precedent, concerned not
with the correction of the record but with the authority of judicial decisions.
A decision is said to be per incuriam when it has been rendered in ignorance of
a binding statutory provision or a binding judicial authority. In such a case,
the decision, though formally pronounced, is deprived of its binding force, and
may be disregarded by subsequent courts.
The
classical formulation of this doctrine is found in Young v. Bristol Aeroplane
Co Ltd,⁽⁴⁾
where the English Court of Appeal held that a court is generally bound by its
own previous decisions, subject to certain limited exceptions, including where
the earlier decision was given per incuriam. This principle has been adopted in
Sri Lanka and has been repeatedly affirmed by the Supreme Court. In Subasinghe
Mudiyanselage Rosalin Bertha v. Juwan Appu,⁽⁵⁾ the Court held that a decision will not
be regarded as per incuriam merely because it is erroneous; the defect must lie
in the court’s failure to consider a binding rule of law. This position was
reaffirmed in Mohammed Kamil Kuthubdeen v. Attorney General,⁽⁶⁾ where the Court
emphasised that failure to consider evidence or to appreciate facts correctly
does not fall within the doctrine, such matters being appropriate for appellate
review rather than for invocation of per incuriam.
The
practical distinction between section 189 and per incuriam may thus be stated
in clear terms. Section 189 addresses errors that occur in the expression of
the judgment; per incuriam addresses errors that occur in the formation of the
judgment. The former is concerned with the accuracy of the decree; the latter
with the authority of the decision.
This
distinction assumes particular significance in the context of the Sri Lankan
law of precedent. In Jane Nona and others v. Surabiel and others,⁽⁷⁾ the Court of
Appeal was confronted with a situation in which a prior decision of the Supreme
Court had been rendered without reference to a relevant statutory provision,
namely section 81(9) of the Partition Law. The Court of Appeal declined to
follow that decision, holding that it had been given per incuriam. The
reasoning of the Court is instructive. It did not question the correctness of
the earlier decision on its merits; rather, it demonstrated that the decision
had been rendered in ignorance of a binding statutory provision which would
have materially affected the outcome. In such circumstances, the Court held
that it was not bound to follow the decision.
The
significance of Jane Nona v. Surabiel lies not merely in its application of the
doctrine, but in its affirmation of a broader principle: that the authority of
precedent is contingent upon its conformity with law. A decision rendered
without regard to binding law cannot command obedience merely by virtue of its
source. Yet this principle must be applied with caution. The doctrine of per
incuriam is not a licence for lower courts to disregard the decisions of higher
courts at will. It is a narrow and exceptional doctrine, to be invoked only
where the oversight is clear, the ignored law is binding, and the consequence
of the omission is decisive.
In
this respect, the role of the judge particularly the judge of a court of first
instance—requires careful reflection. It is not the function of such a judge to
challenge precedent lightly. But neither is it his duty to perpetuate a
demonstrable error of law. Where a decision of a higher court clearly falls
within the strict confines of per incuriam, the judge is not only entitled, but
obliged, to give effect to the correct legal position. This is not an act of
defiance; it is an act of fidelity to the law itself.
The
availability of these doctrines also serves a practical purpose. Section 189
allows for the correction of minor but consequential errors without the need
for costly and time-consuming appellate proceedings. The doctrine of per
incuriam, in turn, permits the correction of more fundamental errors without
requiring litigants to pursue elaborate remedies such as appeal, revision, or
restitutio in integrum. In appropriate cases, these mechanisms enable the law
to be corrected with minimal expense, thereby enhancing access to justice.
There
is, moreover, an ethical dimension to their application. Where a matter clearly
falls within the ambit of section 189 or per incuriam, the role of the legal
practitioner is not merely to advance the interests of a client, but to assist
in restoring the law to its proper course. In such cases, the emphasis shifts
from adversarial advantage to judicial accuracy.
It
is not inappropriate to suggest that, in these limited circumstances, the legal
profession bears a responsibility to act with a measure of moderation in
relation to financial considerations, recognizing that the correction of such
errors serves the broader interests of justice and in actual fact the members
of the noble profession are taking an effort to put right what it otherwise
ought to have been keeping in mind the principle that an act of court will
prejudice none. In other words, the maxim Actus curiae neminem gravabit (“An
act of the court shall prejudice no one.”) which complements section 189 of the
Civil Procedure Code and the doctrine of per incuriam, both of which allow
courts to correct errors. The law not only delivers justice, but it ensures
that its own mistakes do not defeat it.
The
maxim stands as a reminder that no act of the court shall work injustice upon a
litigant. It is not a doctrine of immunity, but one of responsibility,
requiring the court to recognise, correct, and where necessary make amends for
prejudice caused by its own inadvertent error, even where such error arises
from a mere slip of the pen.
In
conclusion, section 189 of the Civil Procedure Code and the doctrine of per
incuriam represent two distinct but complementary mechanisms within the law’s
architecture of correction. The former ensures that the record speaks
accurately; the latter ensures that the law speaks correctly. Together, they
reflect a legal system that is not only authoritative, but self-correcting—a
system that recognises that justice is not diminished, but strengthened, by the
capacity to acknowledge and rectify error.
Actus curiae neminem gravabit
Actus
curiae neminem gravabit may be regarded as one of the highest blessings the law
confers upon the judicial office, both here and hereafter, not as an escape
from accountability, but as an assurance that any error of the court will not
be allowed to mature into injustice. It reflects the enduring principle that
while judges, being human, may err, the law itself does not permit such error
to prejudice those who come before it. Actus curiae neminem gravabit stands as
one of the highest blessings attached to the judicial office, in this life and
beyond, in that it ensures that no act of the court shall work injustice upon a
litigant. It is not a doctrine of immunity, but one of responsibility—requiring
the court to correct its own errors so that justice remains unsullied. It
enables the court to correct and make amends for prejudice caused to a party by
its own inadvertent error.
Actus
curiae neminem gravabit may be regarded as one of the highest assurances the
law confers upon the judicial office, both in this life and beyond. It does not
operate as an escape from accountability, but as a principled assurance that
any error of the court will not be permitted to ripen into injustice. It
reflects the enduring truth that, while judges are human and may err, the law
itself does not allow such error to prejudice those who come before it.
Play
music for Footnotes
Dharmadasa
v. Meraya (1948) 50 NLR 197.
Silva
v. Silva (1910) 13 NLR 87.
Silva
v. Silva (1912) 15 NLR 146.
Subasinghe
Mudiyanselage Rosalin Bertha v. Maththumagala Kankanamge Juwan Appu, S.C.
Appeal No. 160/2016, S.C.M. 02.12.2022.
Mohammed
Kamil Kuthubdeen v. Attorney General, S.C. (Spl) L.A. No. 24/2024, S.C.M.
11.07.2025.
Jane
Nona and others v. Surabiel and others (2013) 1 Sri LR 346.
Comments
Post a Comment