LEGAL PRINCIPLE: APPELLATE PRACTICE – Standard of Review – Power of Supreme Court to Depart from Previous Decisions – Per Incuriam Decisions
PRINCIPLE STATEMENT
A case is decided per incuriam where a statute or rule having statutory effect or other binding authority which would have affected the decision, had not been brought to the attention of the court; the principle appears to be that a decision can only be said to be per incuriam if it is possible to point to a step in the reasoning and show that it was faulty because of a failure to mention a statute, a rule having statutory effect or an authoritative case which might have made the decision different from what it was.
RATIO DECIDENDI (SOURCE)
"A case is decided per incuriam where a statute or rule having statutory effect or other binding authority which would have affected the decision, had not been brought to the attention of the Court... The principle appears to be that a decision can only be said to be per incuriam if it is possible to point to a step in the reasoning and show that it was faulty because of a failure to mention a statute, a rule having statutory effect or an authoritative case which might have made the decision different from what it was."
EXPLANATION / SCOPE
“Per incuriam” (through lack of care) describes decisions made without considering relevant binding authority. A decision is per incuriam when: (1) binding authority (statute, statutory rule, or authoritative case) existed; (2) it wasn’t brought to court’s attention; (3) it would have affected the decision; (4) failure to consider it made reasoning faulty. Requirements are strict: must identify specific reasoning step that was faulty, show binding authority that was overlooked, and demonstrate it would have changed the decision. Not every overlooked case makes decision per incuriam—only binding authorities that would have affected outcome. This doctrine permits: departure from precedent decided in ignorance of binding law, correction of decisions made without full legal consideration, and maintaining doctrinal coherence. However, threshold is high: mere disagreement with decision doesn’t make it per incuriam, must show actual oversight of binding authority, and demonstrate materiality. This serves: stare decisis (respecting precedent) while permitting correction of decisions fundamentally flawed by missing binding law, maintaining legal system coherence, and preventing perpetuation of errors from incomplete legal analysis. Courts rarely invoke per incuriam, requiring clear demonstration of overlooked binding authority materially affecting outcome.