Introduction
The doctrine of stare decisis, or binding precedent, is a cornerstone of the English legal system, designed to provide certainty, consistency, and a clear judicial hierarchy. Within this structure, the Court of Appeal occupies a pivotal yet constrained position. The statement that the court "should be freed from the shackles of binding precedent so that errors might be corrected" suggests a fundamental tension between the need for legal certainty and the pursuit of justice in individual cases. This essay will explain how the Court of Appeal is currently bound by the rules of precedent, before discussing the advantages and disadvantages of this position. It will be argued that while the current rules can lead to the perpetuation of errors, the disadvantages of freeing the Court of Appeal from its "shackles" would likely be greater, creating unacceptable levels of uncertainty and undermining the stability of the common law.
The Court of Appeal and the Doctrine of Stare Decisis
The doctrine of stare decisis dictates that courts must follow the decisions of courts higher up in the hierarchy, and that appellate courts are generally bound by their own previous decisions. This creates a predictable and ordered system. The Court of Appeal is bound by two forms of precedent: vertical and horizontal.
Vertical precedent is straightforward: the Court of Appeal is absolutely bound to follow the decisions of the Supreme Court (and its predecessor, the House of Lords). This rule is strict and allows for no exceptions. The judiciary has repeatedly affirmed this principle, viewing it as essential for maintaining the structure of the court system. A notable example is Miliangos v George Frank (Textiles) Ltd [1976] AC 443, where the Court of Appeal, led by Lord Denning, refused to follow a House of Lords decision on the basis that it was outdated. The House of Lords, however, reversed the Court of Appeal's decision, firmly stating that any change to a rule set by the highest court must be made by that court alone. This establishes that the Court of Appeal has no power to correct what it perceives as errors in the law laid down by the Supreme Court.
The more complex and debated issue is that of horizontal precedent, where the Court of Appeal is, as a general rule, bound by its own previous decisions. This principle was solidified in the case of Young v Bristol Aeroplane Co Ltd [1944] KB 718. The court in Young concluded that it was bound to follow its own earlier decisions to ensure consistency and certainty in the law. However, Lord Greene MR also set out three important exceptions where the court could depart from a previous decision. These are:
- Where there are two conflicting decisions of the Court of Appeal, the court may choose which one to follow.
- Where a previous decision of the Court of Appeal has been implicitly overruled by a later decision of the Supreme Court (or House of Lords).
- Where a previous decision was made per incuriam, meaning ‘through lack of care’. This applies only in rare circumstances where the previous court made its decision in ignorance of a relevant statute or a binding authority which would have affected its conclusion.
These exceptions are interpreted very narrowly, meaning that the default position is one of strict adherence. The inflexibility of this rule was famously challenged by Lord Denning, who argued in cases like Davis v Johnson [1979] AC 264 that the Court of Appeal should have the same freedom as the House of Lords (which granted itself the power to depart from its own decisions through the 1966 Practice Statement) to prevent injustice. However, the House of Lords in Davis v Johnson emphatically rejected this view, confirming that the Young exceptions were exhaustive and that any further change must come from Parliament.
The Advantages of the Current System
The strict approach to horizontal precedent in the Court of Appeal has several significant advantages which advocates for its retention highlight. The primary benefit is legal certainty. As the court that hears the vast majority of appeals, its decisions form the basis of the law for most practical purposes. If different divisions of the Court of Appeal could issue conflicting judgments, the law would become fragmented and unpredictable. Lawyers would be unable to advise their clients with any confidence, leading to an increase in speculative litigation. As Sir George Waller stated in Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192, leaving the final decision on a point of law to one single court "is in the public interest that there should be this certainty in the law".
Secondly, the rule promotes consistency and fairness, ensuring that like cases are treated alike, regardless of the individual constitution of the court. This upholds the rule of law by preventing "palace of justice" syndrome, where the outcome of a case depends on the particular judges assigned to hear it. It ensures that the law is applied evenly, which is fundamental to public confidence in the judicial system.
Finally, the doctrine supports the clear hierarchical structure of the courts. The Supreme Court sits at the apex as the final arbiter of English law. Allowing the Court of Appeal to depart from its own decisions whenever it saw fit would blur this hierarchy. It would create a situation where a subsequent panel of three judges in the Court of Appeal could overrule a previous panel, leading to instability. The ultimate authority would become unclear, potentially leading to a flood of appeals to the Supreme Court to resolve internal conflicts within the Court of Appeal, thereby defeating the system’s efficiency (Slapper and Kelly, 2017).
The Disadvantages: The "Shackles" of Precedent
Despite these benefits, the argument that the Court of Appeal is unduly constrained by "shackles" has considerable force. The primary disadvantage, as identified in the question, is the perpetuation of errors. If the Court of Appeal makes an incorrect decision or establishes a "bad" precedent, it cannot correct itself outside of the narrow Young exceptions. The error becomes embedded in the law until a case on the same point can be brought before the Supreme Court. This is a significant problem because appealing to the Supreme Court is an extremely expensive and slow process, available only to a very small minority of litigants. For most, the Court of Appeal is the final court, meaning that an error made by it can lead to sustained injustice.
This rigidity can also stifle the development of the common law. The law needs to evolve to reflect changes in society, technology, and values. A binding but outdated precedent can prevent judges in the Court of Appeal from adapting the law, even when they unanimously agree that it is no longer fit for purpose. This forces the law to remain static and can lead to outcomes that appear illogical or unjust to the public.
Furthermore, the strictness of the rule can lead to courts engaging in artificial "distinguishing". To avoid applying an inconvenient precedent, judges may seize on minor, immaterial factual differences between the present case and the precedent case to justify not following it. While this provides an escape route, it can make the law more complex and less certain, undermining the very certainty that the doctrine of precedent is supposed to promote (Elliott and Quinn, 2019). The narrow interpretation of the per incuriam exception also means that it offers little practical relief, making it very difficult to dislodge an established but flawed decision.
Conclusion
The debate over the binding nature of precedent in the Court of Appeal reflects a fundamental conflict between the systemic need for legal certainty and the desire for substantive justice and doctrinal progress. On one hand, the arguments for maintaining the rule as established in Young v Bristol Aeroplane are compelling. Certainty, consistency, and a clear judicial hierarchy are not mere procedural conveniences; they are integral to the rule of law. Freeing the Court of Appeal from its own decisions could lead to a state of legal chaos, where the law changes depending on the panel of judges hearing the case.
However, the disadvantages are equally real. The current system can chain the Court of Appeal to past errors, causing injustice for litigants who cannot afford the time or money to appeal to the Supreme Court. It can also cause the common law to stagnate. While the "shackles" of precedent can indeed be frustrating, the alternative of an appellate court with fluid and uncertain authority is likely worse. The current system, though imperfect, strikes a necessary, if sometimes difficult, balance. It ensures that the Court of Appeal acts as a vital court of error correction for the lower courts and a source of stable legal doctrine, while rightly leaving the ultimate power to fundamentally change the direction of the common law to the Supreme Court. Therefore, while errors may persist for longer than is ideal, the "shackles" of precedent remain a necessary restraint to preserve the overall stability and predictability of the English legal system.
References
Elliott, C. and Quinn, F. (2019) English Legal System. 20th ed. Pearson.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th ed. Routledge.
Davis v Johnson [1979] AC 264
Miliangos v George Frank (Textiles) Ltd [1976] AC 443
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
R v Taylor [1950] 2 KB 368
Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192
Young v Bristol Aeroplane Co Ltd [1944] KB 718
