Binding precedent in relation to specific courts

Introduction

Having considered what is capable of being binding, we can now consider which courts bind which other courts and which courts bind themselves. (These may be called, respectively, the vertical dimension and the horizontal dimension.) Combining the two dimensions into a single statement, therefore, we can take the following as a working statement of the doctrine of binding precedent:

The Supreme Court, the Court of Appeal and the High Court bind all lower courts (as did the House of Lords); and (to very significantly varying extents) may also bind themselves.

The use of the phrase lower courts in this statement is a clear reference to the hierarchical nature of the courts, which is shown diagrammatically at p. 54.

The Court of Justice of the European Union and the General Court

As we saw at p. 62, under the Treaty of Lisbon the Court of Justice of the European Union (CJEU) is the successor to the Court of Justice of the European Communities (CJEC), while the General Court (GC) is the successor to the Court of First Instance (CFI). In practice, however, as a half-way house between using the full name and the abbreviation of that name, the CJEU is very often referred to simply as either the European Court of Justice or, even more simply, the Court of Justice. (There can obviously be no half-way house in the case of the General Court, just as there was none for the Court of First Instance.)

In terms of the vertical dimension of precedent, both the ECJ and the GC bind the courts of all member states because EU law prevails over domestic law.

In terms of the horizontal dimension, neither court is bound by its own previous decisions but both do, nevertheless, generally follow them unless there is a good reason not to do so. (Da Costa [1963] CMLR 224.)

The European Court of Human Rights

In terms of the vertical dimension of precedent, the status of decisions of the European Court of Human Rights (ECtHR) within the English legal system can only be fully understood in the light of both the common law and the Human Rights Act 1998.

at common law the English courts have always been willing to have regard to the provisions of the European Convention on Human Rights, but without feeling themselves bound by an instrument which is not actually part of English law;

under the Human Rights Act 1998, English courts must take into account (but are not bound to follow) any relevant decisions of the European Court of Human Rights.

In terms of the horizontal dimension, the ECtHR, in common with the ECJ and the GC, is firmly located within the civil law tradition and, therefore, has no doctrine of binding precedent. However, again in common with the ECJ and the GC, it does generally follow its own decisions unless there is good reason not to do so. One good reason is the need to ‘ensure that the interpretation of the [European Convention on Human Rights] reflects societal changes and remains in line with present day conditions’. (Cossey v United Kingdom (1991) 13 EHRR 622.)

The Supreme Court

The Supreme Court adopts the same approach to the doctrine of binding precedent as did its predecessor, the House of Lords. (Austin v Southwark London Borough Council [2010] UKSC 28, [2010] 4 All ER 16.)

As far as the vertical dimension of precedent is concerned, in Cassell & Co Ltd v Broome [1972] 1 All ER 801, the House of Lords agreed unanimously that the Court of Appeal had been wrong to conclude that an earlier decision of the House of Lords need not be followed because the Law Lords who made it had been unaware of two of the House’s own previous decisions. Treating the issue as a matter of judicial discipline, Lord Hailsham said:

It is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords … The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.

In terms of the horizontal dimension, the Supreme Court inherited the approach which the House of Lords set out in the Practice Statement (Judicial Precedent) [1966] 3 All ER 77, and subsequently developed. The Practice Statement itself may be summarised as follows.

The doctrine of binding precedent is ‘an indispensable foundation upon which to decide what the law is and its application to individual cases’. More particularly, ‘it provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules’. However, ‘too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict proper development of the law’. The House would, therefore, depart from its previous practice of always being bound by its own decisions and would depart from them ‘when it appears right to do so’.

When deciding whether or not to depart from one of its own previous decisions, the House would ‘bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into, and also the especial need for certainty as to the criminal law’.

The changes in the practice of the House of Lords were ‘not intended to affect the use of precedent’ in other courts.

The principal subsequent developments may be summarised as follows, together with some comments.

Merely deciding that a previous decision is wrong is not, in itself, a sufficient ground for departing from that decision. (Jones v Secretary of State for Social Services [1972] 1 All ER 145.)

By way of comment, it may seem odd that a court may choose to follow a decision which it considers to be wrong, but it is far from odd when you consider the alternative.

In some cases, departing from earlier decisions may actually promote certainty rather than undermining it.

By way of comment, this proposition is based on the fact that if a decision is generally felt to be wrong, some judges will go out of their way to find some ground for distinguishing it – even if this means finding an artificial point of distinction – while other judges will be more loyal to the system and will continue the earlier decision (Jones v Secretary of State for Social Services again). Naturally, this makes it very difficult for lawyers to know where they stand when advising clients.

A good ground for departing from an earlier decision is that relevant circumstances have changed since that decision was made.

By way of comment, in Addie (Robert) & Sons (Collieries) Ltd v Dumbreck [1929] AC 358, the House of Lords decided that the only duty which a landowner owed to children who were trespassing on his or her land is not to harm them intentionally. (In other words, realising that the children may harm themselves did not create a duty to protect them.) Over 40 years later, in British Railways Board v Herrington [1972] 1 All ER 749, the House decided that social attitudes towards children had changed significantly since the earlier decision and this justified departure from the earlier case by imposing on landowners a duty of care towards child trespassers.

The Judicial Committee of the Privy Council

In terms of the vertical dimension of precedent, decisions of the Judicial Committee of the Privy Council are never, strictly speaking, binding on any court. (See pp. 59–60 for the nature and role of the Privy Council and its Judicial Committee.) This can be explained on two grounds. First, the Judicial Committee is technically not a court, but merely a committee of another body which itself is also not a court. Secondly, although it is common to speak of decisions of the Privy Council (as this book does), technically its role is limited to advising the Queen, who makes the final decision. However, leaving technicalities aside and returning to the real world, all the Supreme Court Justices are (and all the Law Lords were) members of the Judicial Committee of the Privy Council. It is not surprising, therefore, that Privy Council decisions are usually treated for all practical purposes as having the same status as decisions of the House of Lords or the Supreme Court (provided, of course, that the point of law involved is the same as English law). The Court of Appeal may even choose to follow a decision of the Judicial Committee of the Privy Council rather than following a decision of the House of Lords or the Supreme Court, provided that the Judicial Committee which made the decision consisted of more than its usual tally of five members and all of them were Law Lords (which must now, of course, be read as including Supreme Court Justices). (See Attorney-General for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580.)

In terms of the horizontal dimension, the Privy Council tends to follow its own decisions but is not bound to do so.

The Court of Appeal

In terms of the vertical dimension of precedent both Divisions of the Court of Appeal bind all lower courts.

In terms of the horizontal dimension, there is some divergence between the two Divisions.

The classic statement of the position in the Civil Division is to be found in Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293.

Where the court encounters two conflicting decisions of its own it must choose which one to follow. (This is not as obvious as it may appear to be at first sight. It would be possible to formulate the exception in such a way as to give the court power to decide the case in any way it thought fit, which would include proceeding on a different basis from either of the conflicting decisions.)

Where the House of Lords (now, of course, the Supreme Court) has made a subsequent decision which does not expressly overrule a decision of the Court of Appeal, but which the Court of Appeal nevertheless feels is of such a nature that the two cases cannot stand alongside each other. In such cases the Court of Appeal will refuse to follow its own decision. The position is less clear where the inconsistent House of Lords decision precedes the Court of Appeal decision. In this situation it may be possible simply to conclude that the Court of Appeal decision is per incuriam. (The per incuriam doctrine is discussed at p. 109.)

The court may depart from a decision of its own which it is satisfied was made per incuriam. In this context, the court expressed the view that the per incuriam doctrine should be interpreted liberally.

The court accepted that further exceptions could be developed and, indeed, some such development has occurred, but we do not need to trace the details here.

In terms of the Criminal Division, the court accepts the principles expressed in Young as the basis of its approach. However, it sometimes takes the view that more flexibility is appropriate on the criminal side because the court is dealing with the liberty of the subject. (See, for example, R v Taylor [1950] 2 All ER 170.) But this greater flexibility did not extend to justifying departure from a well-established line of authority on the correct interpretation of a statutory provision which Parliament had done nothing to change, even though it had amended the provision in other respects on four occasions. (See R v Leaney [1995] Crim LR 669, where the court accepted that its refusal to depart would result in injustice to the appellant.)

The High Court

In terms of the vertical dimension of precedent, the High Court binds all lower courts.

In terms of the horizontal dimension, however, the issue of self-bindingness depends on which jurisdiction is being exercised.

When dealing with appeals (i.e. where the correctness of a decision made by another court or other decision-maker is being challenged) it binds itself.

But both at first instance (that is, when dealing with trials) and in judicial review (that is, when dealing with challenges to the legality of the decision-making process of another court or other decision-maker, as distinct from challenging the correctness of the resulting decision) its own decisions are only persuasive (which means that it may choose to follow an earlier decision but is not bound to do so). For further explanation of the difference between appeal and review, see pp. 42–53.

The Crown Court, county courts and magistrates’ courts

The Crown Court, county courts and magistrates’ courts are not bound by their own previous decisions.

Tribunals and Inquiries

The Upper Tribunal binds the First Tier Tribunal and it will usually follow its own previous decisions, but without holding itself bound to do so. Selected decisions are reported and can be accessed online via the Judiciary website (www.judiciary.gov.uk/media/tribunal-decisions).

First Tier Tribunals are not bound by their own decisions and, even if they were, in some chambers there are so many of them it would be impossible for its judges to keep track of everyone else’s decisions while still finding time to make their own. Selected decisions from some chambers are reported on the Judiciary website (see above).

Inquiries operate in fields where decisions are made by applying government policies to the facts of each case. It follows that the question of precedent (which is, of course, limited to matters of law) does not arise.