8.2 The judicial hierarchy

Figure 10 The ‘Class sketch’ featuring Ronnie Corbett as working class, Ronnie Barker as middle class, and John Cleese as upper class. In the sketch, Ronnie Barker looks up to John Cleese but looks down on Ronnie Corbett. If Ronnie Barker was the Court of Appeal, he would look up to the Supreme Court, but down to the High Court. (Image reversed for pedagogical reasons.)

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A black and white picture of three men showing, from left to right Ronnie Corbett, Ronnie Barker, and John Cleese, Ronnie Corbett on the left is the shortest and wears workers’ clothes, a scarf and cloth cap. Ronnie Barker in the middle is taller, wearing a suit and a trilby. John Cleese on the right is the tallest and wears a suit and a bowler hat, and carries an umbrella.

Figure 10 The ‘Class sketch’ featuring Ronnie Corbett as working class, Ronnie Barker as middle class, and John Cleese as upper class. In...

The second factor that influences whether ratio decidendi is binding on the court depends on where the earlier court is in the judicial hierarchy compared to the later court.

In general:

• Appeal courts are more senior than first-instance courts.
• Second level appeal courts (like the Supreme Court) are more senior than first level appeal courts (like the Court of Appeal).
• Higher level first-instance courts (like the High Court) are more senior than lower level first-instance courts (like the County Court).

This is illustrated in the civil context in Figure 11.

Figure 11 The court hierarchy showing which courts are more senior than other courts for deciding how influential a precedent is

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Diagram showing the relative seniority of the four main courts in England and Wales arranged in a trajectory from bottom left to top right. At the bottom left hand side is the junior first-instance court, the County Court. Slightly higher and to the right is the senior first-instance court, the High Court. Slightly higher and to the right and higher in the hierarchy is the first level appellate court, the Court of Appeal. Higher still and to the right is the Supreme Court, the second level appellate court, and highest court in England and Wales.

Figure 11 The court hierarchy showing which courts are more senior than other courts for deciding how influential a precedent is

Therefore, if the precedent is from a more senior court than the court hearing the new case, then the precedent tends to be binding. But if the precedent is from a more junior court than the court hearing the later case, then the earlier precedent tends not to be binding (but it may be persuasive). This allows the more senior court to make changes to the law.

Figure 12 The Supreme Court

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An image taken from above of the Supreme Court. There are nine people in robes sitting at a curved bench, opposite another curved bench at which five other people are sitting.

Figure 12 The Supreme Court

Back in the day, the House of Lords (the predecessor to the Supreme Court) treated itself as bound by its previous decisions (see: London Tramways Co Ltd v London County Council^{Footnote 6}). This caused a problem because if the House of Lords made a mistake, the only way of overturning its mistake was to wait for Parliament to bring in a statute to overrule it. The House of Lords realised that there was a problem, and in 1966 issued a practice statement giving notice that in the future it would not bound by its previous decisions (see: Practice Statement (Judicial Precedent) [1966]^{Footnote 7}). After 1966, the House of Lords began to overturn some of their previous decisions. For example, recall the case of Duncan v Cammel Llaird,^{Footnote 8} discussed earlier in the course, where the House of Lords had ruled that a public interest immunity (‘PII’) certificate from the government that disclosing evidence would risk national security was the end of the matter. This principle was not followed in Conway v Rimmer ^{Footnote 9} where the House of Lords ruled that it could scrutinise whether such a PII certificate was in fact justified. The Supreme Court now follows the same approach and can overrule its previous decisions.

The third factor that determines whether a precedent is binding is whether the material facts are sufficiently similar (or analogous).