CHAPTER 13sub nom Floe Telecom Ltd v Office of Communications [2009] EWCA Civ 47, (2009) Times 23 February, [2006] 4 All ER 688sub nom Floe Telecom Ltd v Office of Communications [2009] EWCA Civ 47, (2009) Times 23 February, [2006] 4 All ER 688Re [2007] Ch 150Re [2007] Ch 150Re [2007] Ch 150Vera Cruz, The (No 2) (1884) 9 PD 96Times 17 MayTimes 3 MarchRe [2005] 2 AC 680
chapter 13
Precedent
13.2The scope of precedent 13.3The functions of precedent 13.6Decisions on issues of law The authority of a decision • The degrees of authority
13.24Decisions on issues of fact and guidance 13.38Decisions on issues of judgment 13.44Decisions on matters of practice and procedure 13.45Decisions and lines of authority 13.51Precedent and reports 13.55Precedent and practice directions 13.58Precedent of tribunal decisions Within the Upper Tribunal • Between the Upper Tribunal and First-tier Tribunal • Within the First-tier Tribunal • Predecessor tribunals • For other purposes
13.75Precedent of court decisions Decisions of the Court of Appeal and the Supreme Court • Decisions of the High Court on statutory appeal • Decisions of the High Court on judicial review • Decisions of the High Court in a shared jurisdiction • Decisions of High Court judges sitting in the Upper Tribunal • England and Wales and Scotland • Consent orders • Reasons in cases of no precedent value • European Court of Human Rights authorities • European Court of Justice authorities
13.95References to the European Court of Justice 13.96Retrospective and prospective effect 13.97Suspension of precedential effect of decision 13.1Precedent is used with different meanings. It may refer to the principles that determine a decision’s authority and relevance in a later case, to the proposition for which a decision is authority, or to the decision itself. It is sometimes described as a doctrine, but that adds nothing. It is often referred to as stare decisis.
The scope of precedent
13.2Precedent may apply to issues of law, to issues of fact or guidance, or to issues of judgment. Each requires separate treatment.
The functions of precedent
13.3Precedent is concerned with efficiency, consistency and discipline in decision-making, which together enhance certainty in the application, and coherence in the development, of the law.
13.4If every case had to be decided afresh without reference to previous decisions and the analysis in those decisions, the burden on the time and intellect of the judges would be intolerable. But precedent is concerned with more than efficiency and ease of decision-making. It determines the circumstances in which and the extent to which a tribunal is bound by its own decisions or those of another tribunal or a court. It is a means by which consistency of, and discipline in, decision-making is enhanced. It contributes to discipline in the development of the law, equality between parties in the application of the law, and to certainty and predictability for those to whom it applies. Precedent is not an essential factor that produces these benefits, nor is it the only one, but it does enhance them.
13.5There are a number of ways in which authorities are used that do not fit easily or at all into the traditional statement and analysis of precedent. They are considered below. What unites them and, perhaps, provides the key to their reconciliation with tradition is the fact that they share in fulfilling the same functions.
Decisions on issues of law
The authority of a decision
13.6Under standard legal theory, the courts distinguish between the legal principle on which a case is decided (the ratio) and other comments that were not essential to the decision (obiter comments). The ratio must be applied in later cases for so long as it retains its authority, unless it can be distinguished. A ratio may lose its authority if the decision creating it is set aside on review or appeal or if it is overruled in a later decision.
13.7The true effect of the rules of precedent in a jurisdiction can only be understood by considering the combined operation of the rules of precedent and the rules that determine the scope of decisions.
1For a detailed analysis of this point see Neil MacCormick, Rhetoric and the Rule of Law, Oxford, 2005, Chapter 8, especially Part 3. However, this book will not explain how standard theory identifies the scope of an authority and the circumstances in which it may be distinguished. It will, though, identify some respects in which that theory is inadequate to deal with the nature of some of the decisions made by the Upper Tribunal.
13.8There is no single, definitive theory on how the ratio of a case is identified and distinguished from obiter comments. However, the ratio is usually defined by reference to the facts of the case, the outcome and the reasoning that links the two. There are different theories about how these factors should be combined to identify the ratio, which are capable of producing different results. But whatever theory is used, the ratio can only be identified if the facts of the case are known.
13.9This analysis can be applied to some decisions made by the Upper Tribunal. The Tribunal may make a decision based either on the facts found by the First Tier-tribunal or on its own findings. That decision may be that the decision below was correct on the tribunal’s reasoning or it may be made in substitution for the decision below. In these circumstances, it is possible to apply the analysis of ratio and obiter.
13.10In other circumstances, this analysis cannot be applied, because neither the facts nor the ultimate outcome are known. The Upper Tribunal may give a decision that the First Tier-tribunal made an error on a point of law and direct a rehearing. As the facts are not yet known, the directions given for the rehearing will have to take account of the possible findings that may be made or be sufficiently general not to depend on the facts. Either way, it is impossible to identify a ratio in the absence of either the facts found or an outcome on those facts. It follows, as a general proposition, that the obiter comments cannot be identified simply on the basis that they are anything that is not a ratio. It may, though, be possible to identify some comments that were not essential on any analysis.
13.11It would, perhaps, be preferable to refer to the authority of decisions of the Upper Tribunal as being based on propositions of law rather than on a ratio. The basis on which those propositions are identified must await judicial analysis or academic theory.
13.12The inappropriateness of the ratio-obiter analysis is not unique to tribunals. The appellate courts may deal with an issue in principle, leaving the principles to be applied below. This is what the House of Lords did in
R (Roberts) v Parole Board,
2[2005] 2 AC 738. as Lord Woolf explained.
3[2005] 2 AC 738 at [35]. It is significant that Lord Woolf thought it worth mentioning as something out of the ordinary. This explains the Court of Appeal’s discomfort in
Secretary of State for Work and Pensions v Slavin4[2011] EWCA Civ 1515 at [37], [64] and [71]. at having to deal with an issue in the absence of all relevant facts.
The degrees of authority
13.13Every decision that decides or discusses an issue of law relevant to a case has a value as a precedent. As a precedent, it may be binding, presumptive, persuasive or indicative.
13.14Precedent is binding if it has to be followed. For example: all tribunals are bound by decisions of the Court of Appeal. Binding precedent emphasises the hierarchy of the courts and tribunals. Even the most binding precedent has to allow for the possibility of conflicting decisions. One approach is to allow a free choice between the conflicting decisions; the other is to provide a rule to determine which must be followed.
13.15Precedent is presumptive if it will be followed except in certain circumstances. For example: the Commissioners professed to follow the decisions of other Commissioners unless this would lead to the perpetuation of error.
5R(I) 12/75 at [21]. Presumptive precedent emphasises the comity among judges at the same level in the hierarchy.
6It can also operate to ensure an appropriate degree of consistency in the interpretation of the same legislation across borders, such as between Britain and Northern Ireland. For example: EC v Secretary of State for Work and Pensions [2015] UKUT 0618 (AAC) at [18]–[35]. The circumstances in which presumptive precedent need not be followed may be defined or applied in a variety of ways that merge into either binding or persuasive precedent. The difference between the categories may depend more on how the rules of precedent are expressed than on substance.
13.16Precedent is persuasive if it is neither binding nor presumptive, but is potentially relevant. Persuasive precedents are those from a court or tribunal lower in the hierarchy or from another jurisdiction. That jurisdiction may be from (a) another country,
7In CC v Secretary of State for Work and Pensions [2015] UKUT 0062 (AAC) at [13], the judge of the Upper Tribunal said that, if it had been relevant, he would have followed his own previous decision in exercise of the British social security jurisdiction rather than that of a three-judge panel on the same issue in Northern Ireland. (b) a different area of law or (c) another court or tribunal. Obiter comments from a higher or equivalent body may also be persuasive. Persuasive precedent emphasises the quality of reasoning.
13.17Precedent is indicative if it is illustrative of the way that a court or tribunal exercises a particular jurisdiction.
13.18These are not rigid categories. Rather they are stages on a spectrum.
13.19Hierarchy is central to binding precedent. And it has a role in presumptive precedent in that comity is there important because the judges involved are equivalent in the hierarchy. But it is largely irrelevant in persuasive precedent.
13.20Comity can be seen as underlying or supporting respect for the hierarchy of the courts. And it has an independent role in presumptive precedent. But in persuasive precedent, it is of little significance, although it may be important if obiter comments of an equivalent or higher body are involved.
13.21Quality of reasoning is central in persuasive precedent. And it has a role in presumptive precedent as a factor relevant to whether the precedent should be followed. But it has little significance in binding precedent, except perhaps in determining how broadly the precedent is interpreted.
13.22Value to later tribunals is essential to all forms of precedent.
13.23Precedent is more likely to be binding between tiers and more likely to be presumptive within a tier. But there are no rules that dictate this and no factors identifying the circumstances in which either form of precedent applies. Decisions given in other jurisdictions are more likely to be persuasive than decisions given within a jurisdiction.
Decisions on issues of fact and guidance
13.24In general, the courts do not approve of giving guidance.
13.25In part, this reflects their desire not to gloss statutory language. As Lawrence Collins LJ said in
R (Assura Pharmacy Ltd) v NHS Litigation Authority8[2008] EWCA Civ 1356. of a judgment that laid down guidelines for the application of a particular regulation, it can be ‘unwise to put a judicial gloss on the approach which decision-makers are bound or permitted by legislation to take’.
9[2008] EWCA Civ 1356 at [69].13.26It also partly reflects their reluctance to deal with abstract issues.
10See chapter 7. The danger was explained by the Court of Appeal in
R (Burke) v General Medical Council:
11[2006] QB 273 at [21].The court should not be used as a general advice centre. The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.
13.27It further reflects the fact that tribunals exercise an appellate function and not a general regulatory or supervisory function over decision-makers.
12As explained by Lloyd LJ in Floe Telecom Ltd v Office of Communications [2006] 4 All ER 688 at [34].13.28And in part it reflects the need to allow proper scope for the exercise of a discretion. As Hodson LJ said in
Moor v Moor:
13[1954] 1 WLR 927. ‘The court will not lay down rules of an exhaustive character as to the exercise of discretion’.
14[1954] 1 WLR 927 at 932. By implication, the court might lay down rules of a less than exhaustive character.13.29In
Office of Communications v Floe Telecom Ltd (in liquidation),
15[2009] EWCA Civ 47 at [20]–[22]; (2009) Times 23 February. Mummery LJ set out in some detail the objections to the practice:
It is the unnecessary nature of the Tribunal’s legal rulings in its judgment that is most troubling. The court itself drew the attention of the parties at the hearing to R (Burke) v GMC [2006] QB 273. There are sound reasons why courts and tribunals at all levels generally confine themselves to deciding what is necessary for the adjudication of the actual disputes between the parties. Deciding no more than is necessary may be described as an unimaginative, unadventurous, inactive, conservative or restrictive approach to the judicial function, but the lessons of practical experience are that unnecessary opinions and findings of courts are fraught with danger.
Specialist tribunals seem to be more prone than ordinary courts to yield to the temptation of generous general advice and guidance. The wish to be helpful to users is understandable. It may even be commendable. But bodies established to adjudicate on disputes are not in the business of giving advisory opinions to litigants or potential litigants. They should take care not to be, or to feel, pressured by the parties or by interveners or by critics to do things which they are not intended, qualified or equipped to do. In general, more harm than good is likely to be done by deciding more than is necessary for the adjudication of the actual dispute.
One of the dangers of unnecessary rulings is that, with only the assistance of the parties and without the benefit of wider consultation on relevant aspects of the public interest, the court’s opinions, though meant to be helpful, may turn out to be damaging in practice and wrong in law. The court may be unaware of all the available arguments or ignorant of the practical implications of what it says. Those who rely on its advisory opinions when applying the law in practice may be misled or confused. A judgment aimed at giving authoritative advice and guidance may be misused by selective citation in different and unforeseen disputes and circumstances.
13.30However, the Commissioners, the Employment Appeal Tribunal, the Immigration Appeal Tribunal, the Court of Appeal and the House of Lords have all emphasised the importance of consistency and certainty in decision-making. In accordance with this, they have given guidance on the law,
16In R(I) 2/06, the Commissioners gave guidance on the assessment of disablement arising from a prescribed disease. In Grundy (Teddington) Ltd v Plummer [1983] ICR 367 at 375–376, the Employment Appeal Tribunal gave guidance on the general approach to what constitutes reasonable conduct by an employer. In Flemming v Secretary of State for Work and Pensions, reported as R(G) 2/02, at [24], the Court of Appeal gave general guidance on the interpretation of particular legislation, following the advice given by the Court of Appeal in Northern Ireland in Bronwyn Wright-Turner v Department for Social Development, reported as R1/02 (ICA). In Shirazi v Secretary of State for the Home Department [2004] 2 All ER 602 at [29], the Court of Appeal approved the practice of giving guidance on the situation in particular countries. This was in turn approved by the House of Lords in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at [50]. And in the House of Lords in R (Roberts) v Parole Board [2005] 2 AC 738 at [35], Lord Woolf acknowledged that the issue of law was being dealt with on principle and that the effect on the appellant’s rights would not be known until the facts had been found. on procedure
17In R(IS) 11/99 at [33], the Commissioner indicated that it would be preferable for an application for leave to appeal, which required a full statement of the tribunal’s decision, to be interpreted in all cases as a request for a statement, if one had not already been provided. and on the assessment of evidence.
18In Flemming v Secretary of State for Work and Pensions, reported as R(G) 2/02, at [22] and [38], Pill and Chadwick LJJ gave advice on the assessment of evidence given by claimants on their hours of study. And in EPI Environmental Technologies Inc v Symphony Plastic Technologies plc [2005] 1 WLR 3456 at [74], Peter Smith J warned of the danger of assuming general dishonesty from what might have been a stupid lie told by a witness in order to bolster a good case. This is within the Upper Tribunal’s powers and part of its proper function.
19BPP Holdings v Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 121 at [25].13.31In
Shirazi v Secretary of State for the Home Department,
20[2004] 2 All ER 602. the Court of Appeal recognised the scope for a judicial policy to apply in order to ensure consistency in the factual analysis of information that is common to a class of case. It endorsed the practice of the former Immigration Appeal Tribunal, which was designed to achieve consistency between cases and to save the need for the same issue to be analysed in every relevant case. Sedley LJ said:
21[2004] 2 All ER 602 at [29].I accept readily that it is not a ground of appeal that a different conclusion was open to the tribunal below on the same facts, nor therefore that another tribunal has reached a different conclusion on very similar facts. But it has to be a matter of concern that the same political and legal situation, attested by much the same in-country data from case to case, is being evaluated differently by different tribunals. The latter seems to me to be the case in relation to religious apostasy in Iran. The differentials we have seen are related less to the differences between individual asylum-seekers than to differences in the Tribunal’s reading of the situation on the ground in Iran. This is understandable, but it is not satisfactory. In a system which is as much inquisitorial as it is adversarial, inconsistency on such questions works against legal certainty. That does not mean that the situation cannot change, or that an individual’s relationship to it does not have to be distinctly gauged in each case. It means that in any one period a judicial policy (with the flexibility that the word implies) needs to be adopted on the effect of the in-country data in recurrent classes of case.
The practice was endorsed by Lord Hope in
Januzi v Secretary of State for the Home Department22[2006] 2 AC 426 at [50]. ‘in the interests of fairness and consistency. But in the end of the day each case, whether or not such guidance is available, must depend on an objective and fair assessment of its own facts’.
13.32In
Cadogan v Sportelli,
23[2008] 1 WLR 2142. the Court of Appeal took a similar approach in relation to valuation issues in the Lands Tribunal. That Tribunal had given guidance on the principles to be applied in valuing lease extensions. After considering the immigration authorities, Carnwath LJ said:
24[2008] 1 WLR 2142 at [98]–[99].Although the present context is very different, there is an equal public interest in avoiding wasted expenditure, and the risk of inconsistent results, in successive LVT appeals on an issue such as that of deferment rates. The Tribunal could hardly have done more to ensure that the issues were fully ventilated and exhaustively examined. They had already been discussed in detail in Arbib. I have already referred to the steps taken by the Tribunal to bring together the present group of cases. Furthermore it is difficult to envisage a better qualified panel of experts for the purpose than those called in this case, or of specialist counsel on both sides of the argument.
I agree with the Tribunal that an important part of its role is to promote consistent practice in land valuation matters. It was entirely appropriate for the Tribunal to offer guidance as they have done in this case, and, unless and until the legislature intervenes, to expect leasehold valuation tribunals to follow generally that lead.
13.33Standard theory does not take account of this role for precedent. However, the benefits of guidance and consistency are shared by all forms of precedent. What precedent as guidance lacks is formal recognition as a form of precedent, which is traditionally confined to the ratio of a case and does not take account of other ways in which the underlying functions of precedent are achieved.
13.34The juridical nature and function of such guidance was explained by Lord Diplock in
Wright v British Railways Board:
25[1983] 2 AC 773.A guideline as to quantum of conventional damages or conventional interest thereon is not a rule of law nor is it a rule of practice. It sets no binding precedent; it can be varied as circumstances change or experience shows that it does not assist in the achievement of even-handed justice or makes trials more lengthy or expensive or settlements more difficult to reach. But though guidelines change, too frequent alteration deprives them of their usefulness in providing a degree of predictability in the litigious process and to facilitating settlement of claims without going to trial.
26[1983] 2 AC 773 at 785. See also Lord Carnwath in MN (Somalia) v Secretary of State for the Home Department [2014] 1 WLR 2064 at [26]–[28].13.35Perhaps, the theoretical basis of the effect of these cases lies in two considerations.
13.36First, there is the proper function of a court or tribunal that hears appeals from a tribunal. The traditional analysis of precedent presupposes a tribunal that is reactive, giving a decision on the issues that arise in the case and no more. The fact and guidance cases show that it is proper to be more proactive, assisting tribunals to avoid errors rather than correcting them when they occur. In this sense, its effect is no different from giving directions on the law for a rehearing before the facts are found.
13.37Second, guidance does not intrude improperly into issues of judgment. It does not direct, but guide. It assists the fact-finding tribunal in avoiding error and, within the ‘bounds of reasonable judgment’,
27Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 at [25]. it helps to improve the quality of the decision-making.
Decisions on issues of judgment
13.38As issues of judgment depend so much on the combination of facts in any particular case, it is not appropriate to reason by analogy from the facts of an earlier case with similar facts. In
R (Williams) v Horsham District Council,
28[2004] 1 WLR 1137. the Court of Appeal was concerned with the issue of whether a couple had their sole or main residence at a particular property. The tribunal had relied on earlier authority in attaching particular significance to the couple’s security of tenure in the property in question. Lord Phillips MR explained why this was wrong:
29[2004] 1 WLR 1137 at [22].… because in a particular case one individual factor has been treated as of particular significance, it does not follow that it carries the same significance in a different factual scenario.
As the Court of Appeal remarked in
Nancollas v Insurance Officer,
30[1985] 1 All ER 833. ‘such is the rich variety of real life that truly identical situations are comparatively rare’.
31[1985] 1 All ER 833 at 835.13.39In the case of a discretion, there is a further consideration: a tribunal must not fetter the exercise of that discretion. In
Merchandise Transport Ltd v British Transport Commission,
32[1962] 2 QB 173. the Court of Appeal was concerned with an appeal against a decision of the Transport Tribunal that involved the exercise of a discretion. Danckwerts LJ said:
But in the exercise of a discretionary power of this kind, an applicant is entitled to have his application considered on the merits and in the circumstances of his particular case. If the tribunal makes a practice of relying on previous decisions in respect of other applications that have come before the tribunal, there is, in my opinion, danger that the discretion of the tribunal may not be applied in an unfettered and proper manner having regard to the merits of the particular case, and, of course, having regard to the principles which are regarded as being incorporated in the provisions of the Act.
33[1962] 2 QB 173 at 208.13.40However, decisions on discretions and other matters of judgment may have a precedent value as an authority for the legal proposition that particular factors are or are not relevant. As Lord Phillips MR explained in
R (Williams) v Horsham District Council:
34[2004] 1 WLR 1137 at [22]. ‘Reference to decided cases may be of assistance in identifying factors relevant to the question of which is a person’s main residence.’
13.41Decisions on discretions and other matters of judgment may also be useful as indicative precedents of how the tribunal typically exercises its jurisdiction. Their function is to make the tribunal’s decision-making transparent, thereby providing guidance to parties in future cases and helping the tribunal to achieve consistency. The Court of Appeal recognised this in
Merchandise Transport Ltd v British Transport Commission,
35[1962] 2 QB 173. which concerned the discretionary decisions of the Transport Tribunal. Devlin LJ said:
In my opinion a series of reasoned judgments such as the tribunal gives is bound to disclose the general principles upon which it proceeds. I think that that is not only inevitable but also desirable. It makes for uniformity of treatment and it is helpful to the industry and to its advisers to know in a general way how particular classes of applications are likely to be treated.
36[1962] 2 QB 173 at 193.13.42However, the scope for guidance in cases that depend on judgment is limited. This was recognised by the Court of Appeal in
Nancollas v Insurance Officer:
37[1985] 1 All ER 833.As to guidelines, it would be possible to point to material factors … But any such list would mislead, if, as is almost inevitable, it was once thought to be comprehensive. We could list factors which are irrelevant, but again any examples would have to be so extreme as to be unhelpful, because otherwise we might be dismissing a factor which, in exceptional circumstances which we have not envisaged, might nevertheless have some weight.
38[1985] 1 All ER 833 at 840.13.43Once again, standard theory does not take account of this role for precedent. However, the benefits of guidance and consistency are shared by all forms of precedent. What indicative precedent lacks is formal recognition as a form of precedent, which is traditionally confined to the ratio of a case and does not take account of other ways in which the underlying functions of precedent are achieved. This approach ignores its practical importance. As the judge remarked in
Re Taylor (a bankrupt):
39[2007] Ch 150 at [46]. ‘… It is in the exercise of discretion, not rulings on “black-letter law” that consistency at first instance has a particular inherent value’.
Decisions on matters of practice and procedure
13.44As Brooke LJ said of pre-CPR case-law in
Woodhouse v Consignia plc:
40[2002] 1 WLR 2558 at [32]. ‘One of the great demerits of the former procedural regimes was that simple rules got barnacled with authority’. Decisions under TCEA, as with CPR, are now concerned with the balance of considerations in the individual circumstances of the particular case. As such, they will not generate precedents. This lack of precedent on issues of procedure and practice will make the rules of procedure under TCEA, as with CPR, more accessible to those who are not familiar with, or do not have access to, the case-law. Precedent will, though, be relevant as an indication of the general approach to be taken under the rules.
Decisions and lines of authority
13.45In the United Kingdom, precedent is usually stated in terms of the status of individual decisions. An alternative approach is to accord precedent value not to individual decisions as such but only when they form part of a consistent line of authority.
41There are two possible formulations. One is to recognise that later authorities determine, or perhaps alter, the proposition for which a decision is an authority. This retains the theory of British law that authority derives from individual decisions. The other is to recognise authority as deriving from a sequence of authorities. This is more in keeping with some Continental approaches to precedent. A consistent line of authority is already relevant within the traditional statement of precedent as a factor to take into account when deciding whether to follow a decision whose status as a precedent is only presumptive.
42R(AF) 1/07 at [21] refers to a consistent line of authority as relevant to the willingness with which a Commissioner would depart from the authority of decisions of the High Court in its former co-ordinate jurisdiction. However, consistency of authorities can be advanced as an alternative theory, in place of the traditional statement. And in some jurisdictions at least, it may be advanced as a more accurate description of how the law operates.
13.46An emphasis on lines of authority rather than on individual decisions more accurately reflects the way in which the scope and interpretation of a decision is determined by later authorities than the traditional statement. There is a spectrum. At one end, a decision of a higher court that is binding may be distinguished so frequently and readily that it becomes a decision binding only in respect of its own unique facts. In plainer terms, it is disregarded for all practical purposes, despite the theory that it retains the status of precedent as defined. At the other end, the scope of a decision may be expanded so that it bears little resemblance to the original basis on which it was made. In between, there are probably the majority of decisions whose present authority can only be understood accurately in the context of later decisions which have discussed and then distinguished or applied them. Even silence in later decisions may reflect acquiescence in a decision.
13.47On this analysis, the legal proposition for which a case is an authority is decided by later cases. They may accept the case on its original basis, they may qualify it or they may expand it. The legal proposition is never fixed. Even if it never changes, its ongoing authority results from the fact that it is accepted without qualification. There is always the potential for change. Later decisions may overrule it, distinguish it (to limit its scope, perhaps to its own facts) or use it to create a wider proposition of law. The scope of an authority and its value as precedent is an ongoing process, being reinforced or undermined each time it is considered.
13.48A statement in terms of a line of authority is more appropriate to precedent as indicative of how a tribunal will exercise its judgment. It also allows the law to be presented more accurately when it is initially developing or is in a state of transition. The case-law may be developing so that it may be more accurately stated in terms of a developing trend than in terms of the status of existing authority. A statement of the status of individual decisions would not take account of trends that are not yet firmly established, although these may be of greater significance than the decisions that are currently of binding status.
13.49An emphasis on lines of authority may also more accurately reflect the practice in particular tribunals. For example: the willingness of individual Commissioners to depart from earlier, even (or perhaps especially) recent, decisions allowed the law to develop more efficiently at their level with less recourse to the Court of Appeal than the stated rules would allow. The operation of precedent between the Commissioners in areas of current controversy would have been most accurately stated in terms of the line of authority that was generally accepted by them. This may also have more accurately reflected the practice of the tribunals below, which disregarded Commissioners’ decisions that were inconsistent with the prevailing line of authority. They did not generally allow themselves the freedom of choosing to follow either line, as the Commissioners’ rules of precedent strictly allowed.
13.50In part, disagreement between judges reflects their different views of what the law is or of how it should develop. But it is also a factor of organisation. If cases on a new issue are dealt with as and when they arise, later cases with different combinations of facts and circumstances may show that a completely different decision or a different formulation of the law is appropriate. New arguments may have the same effect. This can lead to a series of cases that state the law in different terms. However, if a series of cases with different factual combinations can be anticipated, it may be appropriate to wait until a decision can be taken based on the experience of a number of cases and full argument. This is likely to produce a more appropriate formulation that will command more respect in later cases.
Precedent and reports
13.51There may or may not be a link between precedent and the reports of the tribunal’s decisions. The reporting of a decision may have no relevance to the precedent value of that decision, as is the case for the Employment Appeal Tribunal. Or reporting (and highlighting) may determine those decisions which are of precedent value, as in the immigration and asylum jurisdiction. Or reporting may confer a special status on a decision, as was the case of decisions of the Commissioners. In this final case, reporting is only significant for precedent if there is a conflict in the decisions that have been given, in which case the reported decision must be preferred.
13.52Reporting can only confer a special status for precedent if the selection is under the control of the judges. This was the approach of the Commissioners. The former only reported a decision if it commanded the support of the majority of Commissioners at the time.
43R(I) 12/75 at [17(c)].13.53There has been limited analysis of how reporting affects the status of a decision as a precedent. In the earliest cases, the Commissioners linked the purpose of reporting decisions (for the guidance of tribunals and decision-makers) with the duty to follow them.
44CSG 9/49 (KL) at [3] and CS 414/50 (KL) at [2]. It was then but a short step to say that reported decisions, having been issued for guidance, took priority over those that have not been reported. (The reporting of decisions was also recommended by the Franks Committee as proof of consistency and as a guide to the parties and their advisers.)
45The Report of the Committee on Administrative Tribunals and Enquiries Cmnd. 218 (1957), para 102. Leggatt
46Tribunals for Users – One System, One Service (2001), paras 6.20–6.26. recommended that only selected decisions of the Upper Tribunal should be binding. In this, he was adopting the approach in immigration. He wrongly equated this with the approach of the Commissioners, which selected for reporting but did not limit citation.
47It is said that the approach in immigration was based on Leggatt’s misunderstanding of the Commissioners’ approach.13.54Whether or not precedent and reports are formally linked, the courts or tribunals may try to limit citation to decisions that have been reported.
Precedent and practice directions
13.55Section 107(3) and (3A) of the Nationality, Immigration and Asylum Act 2002 achieve the same result as precedent by the use of practice directions:
(3)In the case of proceedings under section 82 or by virtue of section 109, or proceedings in the Upper Tribunal arising out of such proceedings, practice directions under section 23 of the Tribunals, Courts and Enforcement Act 2007–
(a)may require the Tribunal to treat a specified decision of the Tribunal or Upper Tribunal as authoritative in respect of a particular matter; and
(b)may require the Upper Tribunal to treat a specified decision of the Tribunal or Upper Tribunal as authoritative in respect of a particular matter.
(3A)In subsection (3) the reference to a decision of the Tribunal includes–
(a)a decision of the Asylum and Immigration Tribunal, and
(b)a decision of the Immigration Appeal Tribunal.
13.56As with the link between precedent and reporting, there has been no analysis of how this fits into a theory of precedent based on judicial decision-making. Perhaps, being statutory, it does not need to be. If it is to fit, perhaps the solution lies in two factors. First, the selection is made judicially, albeit not within the context of a particular decision. The same is true of the precedent based on reporting. Second, the types of cases to which this applies may show a repetition of facts and circumstances that differs from that usually met in litigation. This may justify a special rule.
13.57TCEA s23 authorises the Senior President of Tribunals and a Chamber President to give directions as to practice and procedure. Section 23(6) assumes that those directions may include ‘guidance about … the application or interpretation of the law’. This is not consistent with the usual meaning of practice and procedure as relating to the methods to be used by a court or tribunal in deciding cases rather than to the substantive law that the tribunal has to apply.
48See chapter 3.Precedent of tribunal decisions
13.58According to Carnwath LJ in
Cadogan v Sportelli:
49[2008] 1 WLR 2142 at [99]. ‘… It will be principally for the new [upper] tribunal to lay down guidelines as to the precedent effect of its decisions for different purposes’.
Within the Upper Tribunal
13.59The correct approach to precedent between courts of coordinate jurisdiction was set out in
Re Taylor (a bankrupt).
50[2007] Ch 150. The judge must:
… make his decision on the merits of the submissions put before him, giving appropriate weight but no more to authorities which may be persuasive but which, by law, are not binding. The point is of particular importance where the issue of law is one of jurisdiction … It is in the exercise of discretion, not rulings on ‘black-letter law’ that consistency at first instance has a particular inherent value.
51[2007] Ch 150 at [46].The court rejected
52[2007] Ch 150 at [43]. as impractical the approach taken in
Colchester Estates (Cardiff) v Carlton Industries plc,
53[1986] Ch 80. The Commissioners followed this approach in R(IS) 13/01 at [4] and R1/00(FC) at [7]–[8], but abandoned it following Taylor: R(IS) 9/08. The Employment Appeal Tribunal had already taken the Taylor approach in Digital Equipment Co Ltd v Clements (No 2) [1997] ICR 237. under which the later of two conflicting decisions of equal status was to be followed if the earlier decision was fully considered in the later decision.
13.60Tribunals equivalent in status to the Upper Tribunal have taken the approach set out in
Re Taylor (a bankrupt)54[2007] Ch 150. in respect of their own decisions, albeit with different emphases.
13.61The Commissioners set out their system of precedent in
R(I) 12/75:
55R(I) 12/75 at [21].In so far as the Commissioners are concerned, on questions of legal principle, a single Commissioner follows a decision of a Tribunal of Commissioners
56Three Commissioners sitting together. The equivalent is now a three-judge panel of the Upper Tribunal. unless there are compelling reasons why he should not, as, for instance, a decision of superior Courts affecting the legal principles involved. A single Commissioner in the interests of comity and to secure certainty and avoid confusion on questions of legal principle normally follows the decisions of other single Commissioners … It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so.
57The Tax and Chancery Chamber of the Upper Tribunal takes the same approach: Leeds City Council v Commissioners for Her Majesty’s Revenue and Customs [2014] UKUT 0350 (TCC) at [12]. The Administrative Appeals Chamber has decided that it should follow decisions of three-judge panels in the Immigration and Asylum Chamber unless there are compelling reasons not to do so: TG v Secretary of State for Work and Pensions [2015] UKUT 0050 (AAC) at [50].13.62Two three-judge panels of the Upper Tribunal have confirmed that these principles apply to the Administrative Appeals Chamber of the Upper Tribunal, pending further guidance by case-law or practice direction.
58Dorset Healthcare NHS Trust v MH [2009] UKUT 4 (AAC) at [37] and SoSD v AD and MM [2009] UKUT 10 (AAC) at [132].13.63The National Industrial Relations Court followed the practice of the House of Lords in its 1966 Practice Statement.
59[1966] 1 WLR 1234. In
Chapman v Goonvean and Rostowrack China Clay Co Ltd,
60[1973] ICR 50. the Court decided:
Accordingly we wish to say that this court regards the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules in the field of industrial relations. The court nevertheless recognises that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of industrial law. The court, therefore, while treating its own former decisions as normally binding, will consider itself free to depart from them when it appears right to do so. In this connection the court will bear in mind the danger of disturbing retrospectively decisions which have formed the general basis of industrial relations agreements and practices.
61[1973] ICR 50 at 58.13.64The practice for the successor to that Court, the Employment Appeal Tribunal, was stated with different ordering but to the same effect by Morison J in
Secretary of State for Trade and Industry v Cook:
62[1997] ICR 288.The appeal tribunal is not bound by its previous decisions, although they will only be departed from in exceptional circumstances, or where there are previous inconsistent decisions.
63[1997] ICR 288 at 292.13.65The House of Lords’ Practice Statement was also adopted by the Commissioners in respect of decisions of Tribunals of Commissioners. In R(U) 4/88, a Tribunal of Commissioners gave an indication of some of the factors relevant to whether a decision of a previous Tribunal should be followed:
As to previous decisions of Tribunals of Commissioners, we would not think it right to endeavour to spell out comprehensively the risks from disturbance which should be borne in mind. However, they clearly include disturbing the basis for decisions which may reasonably be taken to have affected many thousands of citizens and have been acted upon by adjudication officers and tribunals over many years, and also decisions which may be taken to have passed the scrutiny of Parliament without adverse comment.
64R(U) 4/88 at [17].Between the Upper Tribunal and First-tier Tribunal
13.66As a superior court of record, the Upper Tribunal’s decisions are binding on the First-tier Tribunal, not only in the individual case by virtue of TCEA s12 but also as a matter of precedent.
65R (Cart) v Upper Tribunal [2010] 1 All ER 908 at [75]; BPP Holdings v Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 121 at [25] and [35]. Previously it was not clear whether precedent formally applied so that a First-tier Tribunal was bound by decisions of the Upper Tribunal that hears appeals from it. In
Chief Adjudication Officer v Woods,
66R(DLA) 5/98. Evans LJ said that the decisions of the Commissioners would be acted upon in future cases ‘even if not strictly binding’. However, legislation has assumed that precedent applies
67Social Security Act 1998 s27 and Child Support Act 1991 s28ZC. and in
Secretary of State for Work and Pensions v Menary-Smith,
68[2006] EWCA Civ 1751 at [24] and [28]. May LJ treated precedent as applying and the distinction between binding principle and obiter discussion as being relevant. In practice, it may not matter whether or not there is a formal rule of precedent. If the Upper Tribunal will set aside a decision that differs in law from one of its decisions, that is precedent in all but name. Of course, if there is a conflict between decisions made by the Upper Tribunal, the First Tier-tribunal has to decide which to follow.
13.67The Commissioners set out their system of precedent in R(I) 12/75:
Commissioners speak with equal authority. All their decisions … may be cited to Commissioners, local tribunals and insurance officers. Where they decide questions of legal principle they must be followed by insurance officers and local tribunals in cases involving the application of that principle, unless they can be distinguished. It should be borne in mind that similarity in underlying facts does not automatically give rise to similarity in the principle to be applied and questions of fact should not be elevated into questions of legal principle.
If confronted with decisions which conflict, insurance officers and local tribunals must prefer the decision of a Tribunal of Commissioners (whether a unanimous or majority decision) to that of a single Commissioner. A reported decision … should
prima facie be given more weight than an unreported decision. Subject to the foregoing insurance officers and local tribunals must choose between conflicting decisions and there is no obligation on them to prefer the earlier to the later or
vice versa.
69R(I) 12/75 at [19]–[20].Within the First-tier Tribunal
13.68The First-tier Tribunal is not bound by its own decisions,
70Hampshire County Council v JP [2009] UKUT 239 (AAC) at [15]. which are persuasive only.
13.69This approach reflects the practical difficulties that precedent would encounter if applied to most of the First-tier Tribunal’s jurisdictions. As Leggatt
71Tribunals for Users – One System, One Service (2001), para 6.19. noted:
There are obvious practical difficulties in expecting many tribunals sitting across the country, with wide differences in experience and constitution, and a remit to consider each individual case on its merits, to develop a consistent view of the law.
13.70It also prevents the perpetuation of error. In
West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation,
72[1967] 2 QB 188. the Court of Appeal disapproved the Lands Tribunal’s practice of following its previous decisions. Salmon LJ drew attention to the disadvantage of precedent on issues of general application:
No doubt previous decisions of the tribunal on points of law should be treated by the tribunal with great respect and considered as persuasive authority, even when made by a layman. But they should never be treated as binding. It is important that such decisions should be most carefully scrutinised and if necessary rejected, particularly in cases such as the present which raise points of law of outstanding importance with far-reaching consequences.
73[1967] 2 QB 188 at 210.And Sachs LJ pointed out the anomaly that would otherwise arise between the Tribunal and the High Court:
I find it difficult to see why all the individual members of that tribunal should invariably and for ever unquestioningly bow the knee to the decisions of any single one of their colleagues, however distinguished, when even High Court judges are not bound blindly to follow each other’s judgments. Such a practice can produce unfortunate results.
74[1967] 2 QB 188 at 225.Predecessor tribunals
13.71If a tribunal is not bound by its own decisions, neither is it bound by those made by its predecessor tribunal that was not so bound.
13.72Nor is a tribunal necessarily bound by a predecessor tribunal that did regard itself as bound by its own decisions. In
Portec (UK) Ltd v Mogensen,
75[1976] ICR 396. the Employment Appeal Tribunal decided that it was not bound by decisions of its predecessor, the National Industrial Relations Court, although its decisions were ‘of great persuasive authority and we would not lightly different from the principles which are there to be found’.
76[1976] ICR 396 at 568.13.73However, the decisions of the National Insurance Commissioners were followed by the Social Security Commissioners. The latter were the direct successors of the former under a new name to reflect a widened jurisdiction. This was in contrast to the Employment Appeal Tribunal, which was new and wholly distinct from the National Industrial Relations Court.
For other purposes
13.74Most decisions made by tribunals are only binding between the parties. Their decisions are only binding generally (judgments in rem) in those rare cases where legislation confers jurisdiction on the tribunal to make such decisions.
77R (PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin) at [40]–[47]. It is not an abuse of process to argue against a tribunal’s decision for other purposes.
78R (PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin) at [70]–[72]. It would, though, be highly undesirable to allow contradictory findings on issues of precedent fact.
79R (CJ) v Cardiff City Council [2012] 2 All ER 836 at [22].Precedent of court decisions
Decisions of the Court of Appeal and the Supreme Court
13.75Both the Upper Tribunal and the First-tier Tribunal are bound by decisions of these courts.
Decisions of the High Court on statutory appeal
13.76If an appeal lies from a tribunal to the High Court, the tribunal is bound by decisions of that Court.
80Minister of Pensions v Higham [1948] 2 KB 153 at 155 per Denning J.13.77If the appellate jurisdiction is transferred to a tribunal, the decisions formerly made by the court are not binding on that tribunal. Originally the authority of a decision in these circumstances depended on the status of the judges involved.
81Brett MR in The Vera Cruz (No 2) (1884) 9 PD 96 at 98. It now depends on the nature of the jurisdiction, the body over which it was exercised and the status of the Upper Tribunal as a superior court of record. This was the approach taken by the Upper Tribunal in
Secretary of State for Justice v RB,
82[2010] UKUT 454 (AAC) at [39]–[43]. following the analysis of the Court of Appeal in
Chief Supplementary Benefit Officer v Leary83[1985] 1 WLR 84. in the context of supplementary benefits. Initially the decisions of the supplementary benefit appeal tribunal were subject to judicial review before the Divisional Court. In 1978 an appeal was created to the High Court under the Tribunals and Inquiries Act 1971. This was revoked in 1980 in favour of an appeal to the Commissioner under the social security legislation. The issue for the court was whether the Commissioner was bound by decisions of the High Court on appeal under the 1971 Act. The Court held that decisions given by the latter were not binding, as the jurisdiction was narrow and transferred for convenience.
84[1985] 1 WLR 84 at 89–90.13.78A decision of the High Court will be followed by the Upper Tribunal as a matter of comity. Normally, it would be followed unless the tribunal was convinced that the judgment was wrong. However, within its specialist jurisdictions, the Upper Tribunal ‘may in a proper case feel less inhibited in revisiting issues decided even at High Court level, if there is good reason to do so’.
85Secretary of State for Justice v RB [2010] UKUT 454 (AAC) at [41]. The Upper Tribunal has decided
86Gilchrist v Revenue and Customs Commissioners [2015] Ch 183. that this has not been affected by the decision of the Supreme Court in
R (Cart) v Upper Tribunal.
87[2012] 1 AC 663.Decisions of the High Court on judicial review
13.79The Upper Tribunal is bound by decisions of the High Court on judicial review of its own decisions. In
Secretary of State for Justice v RB,
88[2010] UKUT 454 (AAC). the Upper Tribunal decided that decisions of the High Court on judicial review of other tribunals were equivalent to decisions in coordinate jurisdiction.
89[2010] UKUT 454 (AAC) at [45]–[46]. The Tribunal decided that the assumption to the contrary by the Court of Appeal in
Chief Supplementary Benefit Officer v Leary90[1985] 1 WLR 84 at 89. was based on a concession.
91[2010] UKUT 454 (AAC) at [45]. That approach had been confirmed by Purchas LJ in
Commock v Chief Adjudication Officer.
92Reported as an Appendix to R(SB) 6/90. However, those comments were not necessary to the decisions and were made without argument.
93R(IS) 15/99 at [14]. The Tribunal’s approach is consistent with the view of Hodgson J in
R v Social Security Commissioner ex p Akbar.
94Unreported 28 October 1991. The judge quashed a Commissioner’s refusal of leave, but said that his reasoning on a substantive point of law was not binding on the Commissioner who would decide the appeal.
13.80The National Industrial Relations Court first doubted whether it was bound by decisions of the Divisional Court
95Secretary of State for Employment v Atkins Auto Laundries Ltd [1972] 1 WLR 507 at 512. and then decided it was not.
96Chapman v Goonvean and Rostowrack China Clay Co Ltd [1973] ICR 50 at 57. However, as its reasoning was based on the lack of judicial review in Scotland, it no longer applies.
97R(IS) 15/99 at [19].13.81Its successor, the Employment Appeal Tribunal, is not bound by decisions below the Court of Appeal. In
Portec (UK) Ltd v Mogensen,
98[1976] ICR 396. the Tribunal decided that it was not bound by any decisions of the High Court. Bristow J set out the Tribunal’s opinion that decisions of those courts were not binding, but: ‘must be of great persuasive authority and we would not lightly differ from the principles which are there to be found’.
99[1976] ICR 396 at 400. The Tribunal gave no reasons for this view.
13.82There is no court authority on whether the same principles apply to other tribunals from which appeal lies to the Court of Appeal.
Decisions of the High Court in a shared jurisdiction
13.83If the High Court and a tribunal share a jurisdiction so that it may be exercised by either, the decisions of the High Court are binding on the tribunal, even if the decisions are made by a deputy High Court judge.
100Howard de Walden Estates Ltd v Aggio [2008] Ch 26 at [86]–[95]. The lower court’s jurisdiction in these circumstances is not coordinate. This only applies where the tribunal is an inferior court. That is not so in the case of the Upper Tribunal, which is a superior court of record.
101Secretary of State for Justice v RB [2010] UKUT 454 (AAC) at [44].Decisions of High Court judges sitting in the Upper Tribunal
13.84There is no authority relevant to the precedent value of a decision of the Upper Tribunal that is made by a High Court judge sitting in that Tribunal. It is not clear whether the relevant criterion is the status of the judge or the body in which that judge exercises a particular jurisdiction.
England and Wales and Scotland
13.85Special problems arise if a tribunal has jurisdiction for the whole of Great Britain. They arise, because the courts of Scotland below the House of Lords are separate from those of England and Wales. In
Marshalls Clay Products Ltd v Caulfield, Clarke v Frank Staddon Ltd,
102[2004] ICR 1502. Laws LJ explained that the rules of precedent are laid down by the courts and are limited to the jurisdiction of those courts:
The rules of precedent or
stare decisis cognisable here are given by the common law … The essence is that precedent confines the very power of the courts subject to it. It is not a rule of discretion or comity or anything of the kind. It is therefore of necessity a doctrine whose reach is limited to the jurisdiction in which the courts in question operate. The House of Lords is no exception; by statute its writ runs to three jurisdictions, and accordingly it binds the lower courts within each of those jurisdictions. Statute might also extend the scope of precedent, as was done by the European Communities Act 1972 … Now, statutory provisions which give dominion to courts in one jurisdiction (international or otherwise) over courts in another are apt, here at least, to father constitutional tensions. But it is at least clear, and here is the point on this part of the case, that it would be a constitutional solecism of some magnitude to suggest that by force of the common law of precedent any court of England and Wales is in the strict sense bound by decisions of any court whose jurisdiction runs in Scotland only or – most assuredly –
vice versa. Comity and practicality are another thing altogether. They exert a wholly legitimate pressure.
103[2004] ICR 1502 at [32].13.86There have been decisions that tribunals in one part of Great Britain are bound by decisions of appropriate courts in another. In
Minister of Pensions v Higham,
104[1948] 2 KB 153 at 155. Denning J said that the Pensions Appeal Tribunal was bound by decisions of the Court of Session in Scotland (equivalent to the High Court). And in
Portec (UK) Ltd v Mogensen,
105[1976] ICR 396 at 400. the Employment Appeal Tribunal decided that it was bound by decisions of the Inner House of the Court of Session in Scotland (equivalent to the Court of Appeal). In view of Laws LJ’s analysis, those decisions are no longer binding.
Consent orders
13.87A Commissioner dealt with consent orders in R(FC) 1/97. Referring to a direction made to a social security appeal tribunal by the Court of Appeal, the Commissioner said:
I do not accept that this direction, which was made to the tribunal to whom the case was remitted, establishes any principle or binds any other tribunal. The direction was made by consent, without argument and is unsupported by any reasons at all. A Consent Order of this description does not bind anyone other than the parties to the Order and the tribunal to whom the direction was given.
106R(FC) 1/97 at [28].Reasons in cases of no precedent value
13.88Lord Woolf CJ issued a
Practice Direction (Citation of Authorities)107[2001] 1 WLR 1001. on 8 April 2001 limiting the citation of certain classes of authorities. These are:
6.2… the following categories of judgment
Applications attended by one party only
Applications for permission to appeal
Decisions on applications that only decide that the application is arguable
County court cases …
An authority in any of these categories may only be cited if:
6.1… it clearly indicates that it purports to establish a new principle or to extend the present law. In respect of judgments delivered after the date of this direction, that indication must take the form of an express statement to that effect. In respect of judgments delivered before the date of this direction that indication must be present in or clearly deducible from the language used in the judgment.
This reflects the pre-existing rule that judgments given on applications for permission to appeal were not regarded as binding authorities.
108Lord Woolf MR in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 at [43].European Court of Human Rights authorities
13.89Section 2(1) of the Human Rights Act 1998 requires courts and tribunal to take into account the Strasbourg jurisprudence. The courts have decided that precedent overrides or confines the scope of this duty.
13.90In
Kay v Lambeth London Borough Council,
109[2006] 2 AC 465. the House of Lords decided that the status of a decision of the House under domestic precedent was not affected by later and conflicting decisions of the European Court of Human Rights. In the event of a conflict between a Strasbourg and a decision of the House, the proper course was to follow the latter and give permission to appeal so that the conflict could be resolved by the House.
13.91The House recognised a limited exception that applied only in extreme circumstances. The example given was
D v East Berkshire Community Health NHS Trust,
110[2004] QB 558. in which the Court of Appeal declined to follow a decision of the House of Lords on the ground that the policy consideration on which it was based no longer applied in view of later Strasbourg jurisprudence. Lord Bingham emphasised the special facts of that case, which if not unique were most unlikely to recur.
13.92In
R (RJM) v Secretary of State for Work and Pensions,
111[2009] 1 AC 311. the House of Lords decided that the same approach applied to decisions of the Court of Appeal, although that Court should be free (but not obliged) to depart from its previous decisions if they were inconsistent with a subsequent decision of the European Court of Human Rights.
112[2009] 1 AC 311 at [66]. No doubt, this overtakes the decision of the Court of Appeal in that case,
113[2007] 1 WLR 3067 at [21]–[24]. which recognised that the Court could accept a concession by the Secretary of State that, following a development in the Strasbourg jurisprudence, a previous domestic authority no longer applied.
European Court of Justice authorities
13.93The Court of Appeal has taken the same approach to EC law. In
Armstrong v Newcastle upon Tyne Hospital Trust,
114[2006] IRLR 124. Buxton LJ said that once the House of Lords had determined the scope of EC law, domestic courts were not entitled to resort to the decisions of the European Court of Justice for a different or wider meaning.
115[2006] IRLR 124 at [101]. It may, though, be possible to refer a question to that Court (see below).
Preliminary rulings
13.94A ruling that is made to govern the future conduct of proceedings is not binding if it is inconsistent with a later decision, whether or not it is binding.
116R v M (2007) Times 17 May.References to the European Court of Justice
13.95The normal principles of precedent do not govern whether a reference may be made to the European Court of Justice. The Court of Appeal has decided that it is permissible to refer a question even if it is covered by the authority of a decision of that Court.
117Trent Taverns Ltd v Sykes (1999) Times 3 March. However, the decision to refer may be open to challenge on appeal.
Retrospective and prospective effect
13.96Usually a decision of a tribunal, like a decision of a court, is retrospective in its effect. However, statute may provide that in specified circumstances it is only prospective.
118Social Security Act 1998 s27 and Child Support Act 1991 s28ZC provide for a degree of prospective judicial decision-making. There is nothing inherently unjust in this.
119Evans LJ in Chief Adjudication Officer v Woods reported as R(DLA) 5/98. Exceptionally the House of Lords may make one of its decisions prospective in effect,
120Re Spectrum Plus Ltd [2005] 2 AC 680. as may the European Court of Justice
121See the discussion in R (Bidar) v Ealing London Borough Council [2005] QB 812 at [64]–[71]. and the European Court of Human Rights.
122As in Goodwin v United Kingdom (2002) 35 EHRR 16.Suspension of precedential effect of decision
13.97Under TCEA, tribunals have power to suspend the effect of a decision. This does not extend to the value of the decision as a precedent. See chapter 15.