Introduction
The doctrine of judicial precedent, often referred to by the Latin maxim stare decisis (to stand by things decided), is a cornerstone of the English legal system. It ensures that the law is applied consistently and predictably by requiring courts to follow the legal principles established in previous decisions of higher, and sometimes their own, courts. The Court of Appeal for England and Wales sits at the centre of this hierarchical structure, beneath the Supreme Court but above the High Court and other tribunals. The question of whether the Court of Appeal should be strictly bound by its own past decisions is a long-standing debate. While some argue this rigidity creates “shackles” that prevent the correction of errors, others maintain that it is essential for legal certainty. This essay will explain the rules of precedent that bind the Court of Appeal, before discussing the advantages and disadvantages of this system. It will be argued that while the current rules can lead to difficulties, the certainty they provide is of great value, and completely freeing the court from its own precedent could create more problems than it would solve.
How the Court of Appeal is Bound by Stare Decisis
The Court of Appeal’s position within the doctrine of precedent is governed by two key principles: vertical and horizontal stare decisis.
Vertical precedent is straightforward and absolute. The Court of Appeal is bound to follow any relevant decision made by a court superior to it in the hierarchy. This means it must apply the legal principles, or ratio decidendi, from all past decisions of the Supreme Court, and its predecessor, the House of Lords. This rule is strict and allows for no exceptions. Any attempt by the Court of Appeal to depart from a decision of the highest court will be overturned on appeal. A clear example of this occurred in Miliangos v George Frank (Textiles) Ltd [1976] AC 443, where Lord Denning in the Court of Appeal refused to follow a House of Lords decision he believed was outdated. The House of Lords, on further appeal, reprimanded the Court of Appeal and reaffirmed that it had no power to ignore or overrule a decision of the highest court. This reinforces a clear and orderly judicial hierarchy.
The more complex and debated issue is that of horizontal precedent, where a court is bound by its own earlier decisions. The rule for the Civil Division of the Court of Appeal was firmly established in Young v Bristol Aeroplane Co Ltd [1944] KB 718. In this case, the court held that it was bound to follow its own previous decisions. This self-binding rule was justified on the grounds of ensuring consistency and finality in the law for the majority of litigants, for whom the Court of Appeal is often the final court of appeal. However, the court in Young also set out three important exceptions where it could depart from a previous decision:
- Conflicting Decisions: If there are two previous Court of Appeal decisions that conflict with each other, a later court must choose which one to follow and, in doing so, will overrule the other.
- Implicit Overruling: If a previous Court of Appeal decision is inconsistent with a later decision of the Supreme Court (or House of Lords), the Court of Appeal must follow the Supreme Court’s decision. This is effectively an application of vertical precedent, recognising the superior authority of the highest court.
- Per Incuriam (through lack of care): If a previous decision was made per incuriam, meaning it was made in ignorance of a relevant statute or a binding precedent from a higher court, it does not have to be followed. This exception is interpreted very narrowly. For a decision to be deemed per incuriam, it is not enough that the earlier court made a mistake or produced a poor quality judgment. The court must have overlooked a key authority that would have changed its conclusion (Ingall, 2021). The strictness of this exception was confirmed in Duke v Reliance Systems Ltd [1988] AC 618, which emphasised that the exception should not be used simply because a previous decision appears to be wrong.
The Criminal Division of the Court of Appeal operates with slightly more flexibility. Given that an individual’s liberty is at stake, it has been held that the court is not as strictly bound by its own previous decisions if it believes that the law has been misapplied or misunderstood (R v Gould [1968] 2 QB 65). This allows for greater protection against wrongful convictions.
The Advantages of Binding Precedent
The rigid application of precedent in the Court of Appeal has several significant advantages which are central to the functioning of the English legal system.
The most important advantage is certainty. When courts follow past decisions, the law becomes predictable. This allows legal advisors to give their clients clear and reliable advice on the likely outcome of a case, which can in turn discourage unnecessary litigation and encourage out-of-court settlements. For citizens and businesses, legal certainty allows them to organise their affairs with confidence that the rules will not change unexpectedly (Slapper and Kelly, 2017). This stability is crucial for commercial activity and the rule of law.
A second advantage is fairness and consistency. The doctrine of precedent ensures that similar cases are treated in a similar way. This promotes the idea of 'equality before the law', a fundamental principle of justice. If judges were free to depart from precedent whenever they disagreed with it, the outcome of a case might depend on the personal views of the particular judge hearing it, leading to arbitrary and inconsistent results.
Finally, binding precedent creates efficiency. It saves judicial time and reduces the cost of litigation. If every legal principle had to be argued from scratch in every case, the courts would be overwhelmed. Precedent allows judges to build upon the reasoning of their predecessors, focusing their attention on the specific facts of the case before them or on genuinely new points of law. This maintains a structured and orderly development of the common law.
The Disadvantages of Binding Precedent
Despite these benefits, the strict rule binding the Court of Appeal is often criticised for being overly rigid, earning it the description of “shackles”.
The primary disadvantage is that it can perpetuate legal errors. If the Court of Appeal makes a mistake or creates a bad precedent, that error is then cemented in law. Under the rule in Young, that mistake can only be corrected by the Supreme Court. However, appealing to the Supreme Court is an extremely expensive and slow process, and permission to appeal is granted in only a small number of cases. This means that for many litigants, an incorrect decision by the Court of Appeal is effectively the final word, leading to potential injustice. Lord Denning was a famous critic of this rigidity, arguing in cases like Davis v Johnson [1979] AC 264 that the Court of Appeal should have the same power as the House of Lords to depart from its own decisions when it appears right to do so.
This rigidity can also lead to the law becoming outdated. Society changes, and legal principles that seemed appropriate in the past may no longer be fit for purpose. While the Supreme Court can update the law through its 1966 Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, the Court of Appeal does not have this power. It can only wait for an appeal to the Supreme Court, which can slow down legal development.
Furthermore, the strictness of the rules can sometimes lead to overly complex and artificial legal reasoning. To avoid an inconvenient precedent without explicitly breaking the rules, judges may be forced to ‘distinguish’ the facts of the case before them in a way that is not entirely convincing. This can make the law more complicated and less transparent, as judges try to work around a precedent they cannot overrule.
Conclusion
The doctrine of stare decisis places the Court of Appeal in a position where it is strictly bound by decisions of the Supreme Court and, with limited exceptions, by its own previous rulings. As has been explained, this system provides considerable advantages in terms of legal certainty, consistency, and efficiency. These are not minor benefits; they are fundamental to maintaining a stable and fair legal system in which the public can have confidence.
However, the question highlights the significant disadvantages that come with these "shackles". Rigidity can entrench errors, cause individual injustice, and prevent the law from developing in line with societal changes. The fact that the Court of Appeal is the final court for the vast majority of cases makes this problem particularly acute. The limited scope of the Young exceptions means that correcting a flawed precedent is often a difficult task, dependent on a costly and uncertain appeal to the Supreme Court.
In conclusion, while the call to free the Court of Appeal from the shackles of precedent is understandable, such a move would risk undermining the very certainty and predictability that the doctrine is designed to protect. A complete removal of horizontal precedent could lead to conflicting decisions between different divisions of the Court of Appeal, creating confusion and uncertainty. Therefore, while the current system is not perfect, it represents a deliberate balancing act between the need for justice in individual cases and the need for a stable and coherent legal system. The existing structure, though sometimes frustrating, arguably achieves a workable, if imperfect, compromise.
References
Davis v Johnson [1979] AC 264.
Duke v Reliance Systems Ltd [1988] AC 618.
Ingall, J. (2021) The English Legal Process. 17th edn. Oxford: Oxford University Press.
Miliangos v George Frank (Textiles) Ltd [1976] AC 443.
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.
R v Gould [1968] 2 QB 65.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Abingdon: Routledge.
Young v Bristol Aeroplane Co Ltd [1944] KB 718.
