Judges and the law
Judges and the law

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3.3.3 The Court of Appeal

The Court of Appeal is always bound by previous decisions of the House of Lords.

The Court of Appeal generally is also bound by its own previous decisions. There are, however, a number of exceptions to this general rule. Lord Greene MR listed these exceptions in Young v Bristol Aeroplane Co. Ltd (1944).

MR means ‘Master of the Rolls’. This is the judge who is head of the Court of Appeal Civil Division. The odd name comes from the Middle Ages when a senior clerk in the Chancellor's office was in charge of the Chancellor's Roll, i.e. written material. A good source of information about legal terminology is on the internet at the official Court Service website. You will find a free glossary of legal terms there.

It is not important for you to read this case at this point. What is important is the exceptions that arise, which are:

  • Where there is a conflict between two previous decisions of the Court of Appeal.

    In this situation, the latest court must decide which decision to follow and which to overrule. One reason why there can be two earlier Court of Appeal decisions that apparently say different things about the same law is that the second of the two cases might simply have been unaware of the first one when it gave its pronouncement.

  • Where a previous decision of the Court of Appeal has been overruled, either expressly or impliedly, by the House of Lords.

    An express overruling would obviously occur where the House of Lords actually considered the Court of Appeal precedent, but it is equally possible that a precedent from the Court of Appeal could be overruled without the actual case being cited and considered. In this situation, the Court of Appeal, in line with the normal rules of precedent, is required to follow the decision of the House of Lords.

  • Where the previous decision was given per incuriam (Latin for ‘through an error’).

    In other words, that previous decision was taken in ignorance of some authority, either statutory or case law, that would have led to a different conclusion. In this situation, the later court can ignore the previous decision in question. The missing authority must be a sufficiently important one that it would have led to a different conclusion; the mere possibility is not enough. There are so many case authorities that it is simply not possible to cite all of them in any one case. However, it is the absence of any consideration of the essential authorities that renders a decision per incuriam. Instances of decisions being ignored on the basis of a ruling of per incuriam are very rare.

  • The European Communities Act 1972 gives the Court of Appeal grounds for ignoring any of its previous decisions which conflict with subsequent decisions of the European Court of Justice.

    This effectively fits the European Court of Justice into the traditional hierarchical structure of precedence as the court of last resort in relation to European Union law matters.

  • Section 2 of the Human Rights Act 1998 requires all courts and tribunals to take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.

    The Human Rights Act 1998 renders decisions of the European Court of Human Rights directly binding on the United Kingdom courts. This means that the decisions of the European Court of Human Rights now become precedents for the United Kingdom courts to follow. Any domestic precedent which is in conflict with a decision of the European Court of Human Rights is now invalidated and should not be followed.

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