Explain the powers of judges in the court of appeal (civil and criminal divisions) to depart from an otherwise binding precedent.

There is a court hierarchy in the English legal system and the Court of Appeal must follow the decisions of the House of Lords/Supreme Court.

Grade: A-C | £0.00.


Source B (at line 20) states that the Court of Appeal should follow binding precedent. Using the source and other examples, explain the powers of judges in the Court of Appeal (Civil and Criminal Divisions) to depart from an otherwise binding precedent. (June 2014).



In Source B, Lord Bingham states they (the Court of Appeal) should follow the binding precedent and emphasises the principle of certainty which is involved in the concept of precedent. The Court of Appeal is a fundamental and integral part of our legal system so it is hardly surprising that it has its place in upholding precedent in its decision making. The Court of Appeal cannot divorce itself from the principles of precedent just because it does not want to follow a decision which it does not like.


Shortly after the issue of the Practice Statement in1966, Lord Denning, then Master of the Rolls, embarked upon a course which would bring him into direct conflict with the House of Lords over the question of whether the Court of Appeal was bound by its own previous decisions. As a result of these clashes we are left with a legacy of cases and the arguments voiced by the senior judiciary at the time.

Lord Denning made his views clear in Gallie v Lee (1969) "I do not think we are bound by prior decisions of our own, or at any rate, not absolutely bound. We are not fettered as it was once thought. It was a self-imposed limitation: and we who imposed it can also remove it. The House of Lords have done it. So why should not we do likewise?" He was rebuked by Lord Scarman in the House of Lords when he made the point that the House was the court of last resort and that only the House needed the power to review whereas the Court of Appeal was an intermediate appellate court and did not need such powers.

A starting point is to remind ourselves that there is a court hierarchy in the English legal system and that the Court of Appeal must follow the decisions of the House of Lords/Supreme Court. The Court of Appeal is also bound by the decisions of the European Court of Justice. This was made abundantly clearly by the Lord Chancellor, Lord Hailsham in Broome v Cassell & Co (1971). The Court of Appeal, led by Lord Denning, had refused to follow the decision of the House of Lords in Rookes v Barnard (1964), on the rules for the award of exemplary damages in defamation. The Court of Appeal took the view that Rookes v Barnard was wrong and decided per incuriam (by mistake or carelessly) in ignorance of two previous decisions of the House. When, eventually, Broome v Cassell & Co reached the House of Lords, the Law Lords severally reprimanded the Court of Appeal for its disloyalty to the higher courts.

This issue came to a head in the cases of Schorsch Meier GmbH v Henning (1975) and Miliangos v George Frank (Textiles)Ltd (1976).


In the case of Schorsch Meier GmbH v Henning (1975) the Court of Appeal, led again by Lord Denning, did not follow the House of Lords decision in Havana Railways (1961) which determined that damages should only be awarded in sterling, and the award was made in Deutschmarks. This led to the case of Miliangos reaching the House of Lords, and judgement was given in Swiss Francs. The House had been given the chance of overruling the Havana case and took the opportunity to do so. Had the decision in Schorsch followed the House of Lords decision in Havana Railways, the Swiss firm of Miliangos would not have appealed and would have taken judgement in sterling and the House of Lords would not have had the opportunity to overrule the Havana case.

It is also important to remember that the Court of Appeal (Civil Division) is normally bound to follow its own past decisions as set out in
Young v Bristol Aeroplane Co Ltd (1944). Whereas the Criminal Division of the Court of Appeal is allowed some flexibility to depart from a decision when dealing with a case where a person's liberty is at stake (R v Taylor (1950). This principle was re-stated in R v Gould (1968) where a defendant to a bigamy charge had wanted to withdraw a guilty plea on the basis that he had honestly and reasonably believed that a decree absolute had been granted dissolving an earlier marriage but had been refused permission by the court. On appeal the Court of Appeal had allowed the appeal, Lord Diplock stating that 'the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction.'


Guidelines have now been laid down in R v Magro (2010). Each defendant appealed against confiscation orders made when the sentence imposed was an absolute or conditional discharge.


The importance of the Young case needs to be seen in the context of the principle of binding precedent and the effect that the decision has on the lower courts. The Divisional Courts are required to follow their own previous decisions (Huddersfield Police Authority v Watson (1947)) and must follow the Supreme Court and the Court of Appeal decisions.


It makes sense therefore that the High Court is bound by the doctrine of precedent to follow the decisions of the Supreme Court, Court of Appeal and Divisional Courts. Ordinarily the High Court is not bound to follow its own past decisions but in the event of two conflicting decisions, the later decision is to be preferred provided it was reached after a full consideration of the law, Colchester Estates v Carlton Industries(1984).


The Crown Court, County Court and Magistrates' Court are regarded as inferior courts and must follow the decisions of the courts above them in the hierarchy which includes the Court of Appeal. Inferior courts do not create precedent. So it can be seen that the principle that the Court of Appeal is normally bound by its own previous decisions will bring about a strong sense of certainty about the law. This is important to bear in mind not only from the point of view of legal advice but also in the context of the merit of cases going to the Court of Appeal on appeal.


There are three exceptions to the normal rule and these were also set out in Young v Bristol Aeroplane.


1.Its previous decision had been implicitly overruled by the House of Lord/Supreme Court.


This means that where a previous decision of the Court of Appeal has been impliedly or expressly overruled by the House of Lords/Supreme Court they must follow the House of Lords/Supreme Court ( for example Family Housing Association v Jones (1990) which concerned the issue of whether a licence or tenancy had been granted). In lqbal v Whipps Cross University Hospital NHS Trust (1997) the Court of Appeal wanted to be more flexible and allow a 'lost years' element to a damages award but felt itself bound by an earlier conflicting decision of its own in Croke v Wiseman (1982). This meant that they felt unable to allow the additional element in a claimant suffering from cerebral palsy. The effect of the decision not only impacted upon the amount of the award of damages in the particular case but would influence awards that would follow in other negotiations and cases unless the Supreme Court took the opportunity to correct the matter.


2. Where there are two conflicting decisions (of the Court of Appeal) they can choose between them.

In Tiverton Estates Ltd v Wearwell Ltd (1975) such a conflict arose. The case involved Section 40 of the Law of Property Act 1920 (now repealed) and the Court preferred to follow older precedents rather than the more recent but inconsistent precedent of Law v Jones (1974). Lord Denning MR saying at the time ‘for over a hundred years, the courts have held that the effect of the words ‘subject to contract’ is that the matter remains in negotiation until a formal contract is executed.’


3.If the decision is made per incuriam (i.e. by mistake or carelessly).


Such cases are rare as acknowledged in Morelle v Wakeling (1955). The material facts in the case were significant as they concerned a claimant's contention of ownership of leasehold land. A similar situation had arisen in an earlier case before the Court of Appeal, and the court was asked to decide that that case had been decided per incuriam. The previous case had involved an area of law which had fallen into disuse known as 'mortmain'.

In Royal Bank of Scotland v Etridge (No 2) (1998) The court refused to follow their earlier decision in Royal Bank of Scotland v Etridge (No 1) (1997) The case involved wives who had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence. In Royal Bank of Scotland plc v Etridge (No 2) (1998), the Court of Appeal held that it was necessary to prove in each case, before a bank was put on inquiry, that the transaction was on its face not to the financial advantage of the wife and that there was a substantial risk that, in procuring the wife to act as surety, the husband had committed a legal or equitable wrong that entitled the wife to set aside the transaction. This case and a number of others went to the House of Lords in 2001. The House held that the Court of Appeal had interpreted the principle of undue influence too specifically and onerously and had erred back in 1998.

In Williams v Fawcett (1985) the question of the committal of a person for breach of a non-molestation order became the subject of an appeal. The matter had been the subject of numerous previous decisions by the Court of Appeal. The appeal in Williams rested on the fact that the paperwork handed in had not specified the breaches or to grant an adjournment. On a review of the court rules the Court of Appeal took the view that an appeal could not be based merely on the fact that the order had not been correctly completed. As a result the Court treated the earlier decisions as having been made per incuriam due to a 'manifest slip or error' and refused to allow the appeal. Lord Donaldson MR said “this court is justified in refusing to follow one of its own previous decisions not only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error.”


The divisions do not bind each other. The Court of Appeal (Civil Division) does not bind the Court of Appeal (Criminal Division) and vice versa. In practice they merely persuade (R v Ireland & R v Burstow (1998), Re A (conjoined twins) (2001)).


There are other decisions which come into play and the Court of Appeal has the power to refuse to follow a Supreme Court decision if that decision has been overruled by the European Court of Justice. This was accepted in Sharp v Caledonia Group Services Ltd (2005) an employment appeal case where Ms Sharp claimed she was receiving unequal salary and benefits compared with male colleagues doing work of equal value. The European Court of Justice decision in Brunnhofer v Bank der Osterrichischen Postparkasse (2001) had the effect of superseding an earlier Supreme Court decision which ordinarily the Court of Appeal would have to follow as it is clearly the senior court.


The Court of Appeal refused to follow a decision of the House of Lords in R v Smith (Morgan) (2001) when they decided Attorney General for Jersey v Holley (2005). The case concerned the law on provocation on a charge of murder. Ordinarily the Court of Appeal would be bound to follow the decisions of the House of Lords but they refused and preferred to follow a decision of the Judicial Committee of the Privy Council. The main reason being that the decision in Holley had been heard by nine Law Lords.


The Court of Appeal can also give primacy to rights under the European Convention on Human Rights when interpreting a statute even where this ignores previous cases and this was applied in Mendoza v Ghaidan (2002). In Mendoza the Court decided that it was proper to apply convention rights to do with non-discrimination in the context of statutory tenancy rights which arose following the death of a tenant in a same sex relationship whereby the secure tenancy passed to the survivor.


Finally, judges do not need to follow precedent where the material facts or the legal principles are not the same. This is known as distinguishing and can be used by a judge to avoid having to follow a previous decision which he or she would normally be bound to follow. Judges can distinguish cases and if they can find that the material facts of the case they are deciding are sufficiently different from the previous decision they need not follow the earlier case.


This will enable the judge to make a distinction between the present case and the previous decision which would otherwise form a precedent which the judge must follow. Unless the judge is able to draw such a distinction the judge would be bound to follow the previous case even if he or she did not agree with the legal reasoning. The concept of judicial precedent is strictly adhered to.

There are two cases which are often cited by way of illustration of how distinguishing works. The cases are Balfour v Balfour (1919) and Merritt v Merritt (1971). In both cases a wife made a claim against her husband for breach of contract.

In Balfour v Balfour the claim failed as it was decided that there was no intention to create legal relations (one of the conditions one would normally expect in order to find that a legally binding agreement existed). The arrangement was one which was considered to be a domestic arrangement between a husband and a wife.

The later case of Merritt v Merritt succeeded. The court was able to distinguish that there were material differences in the facts from that of Balfour v Balfour. In the Merritt case the parties were already separated so that the relationship between one family member and another could be seen to be different and more distant. This might explain why the parties decided to put the agreement in writing (which was not the case in Balfour), again suggesting an intention to put the arrangement on a more formal footing.


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As always the links provided will enable you to do further research and enhance your understanding of judicial precedent.

Young -v- Bristol Aeroplane Company - YouTube

British judges not bound by European court of human rights

AS Law Lecture: Judicial Precedent

Courts and Tribunals Judiciary | The Court of Appeal

R v Magro