Judgments - R (On The Application of Rjm) (Fc) V Secretary of State For Work and Pensions Appellate

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60.  The principle concerned is that famously laid down in Young v Bristol Aeroplane Co Ltd [1944] KB 718, 729-730, where Lord Greene MR stated that the Court of Appeal was obliged to follow one of its previous decisions unless (i) there are two conflicting decisions (in which case it was free to choose between them), (ii) the decision “cannot … stand” with a decision of this House, or (iii) the decision “was given per incuriam. This observation was approved when the case went to this House - see [1946] AC 163, 168, and it was re-affirmed in Davis v Johnson [1979] AC 264, 323-324, 336 and 349. The issue for the Court of Appeal in this case was whether it was compelled by that principle to follow its reasoning in Campbell [2004] 3 All ER 387 notwithstanding the subsequent decision of the ECtHR in Stec 41 EHRR SE295.

61.  As the Master of the Rolls explained in paras 20 to 24, he would have felt constrained to follow the reasoning in Campbell [2004] 3 All ER 387, were it not for the fact that the Secretary of State conceded that, as a result of the ECtHR decision in Stec 41 EHRR SE295, RJM’s claim fell within the scope of A1P1 (a concession which was, of course, withdrawn in this House). This raises the question whether one of its previous decisions must be treated by a later Court of Appeal as binding, in circumstances where the previous decision is inconsistent with a subsequent decision of the ECtHR.

62.  Resolution of the question is complicated by the fact that the Court of Appeal considered the point by reference to what Lord Bingham of Cornhill said in paras 40 to 45 of Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465. At para 42, Lord Bingham, described “the doctrine of precedent” as “a cornerstone of our legal system". In the following paragraphs, he referred to the “potential pitfalls” of the Court of Appeal refusing to follow binding precedent on the ground of “a clear inconsistency” between the domestic decision which was prima facie binding on it and a subsequent decision of the ECtHR, and went on to explain why the normal domestic rule should continue to apply in such a case. In para 45, he explained that could be a “partial exception” to this rule. That exception was exemplified by the Court of Appeal’s decision in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558, where it refused to follow the earlier decision of this House in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. The decision in Bedfordshire [1995] 2 AC 633 had been given before the Human Rights Act 1998 came into force, there was no reference to the Convention in any of the opinions, and the plaintiffs (who failed in the House of Lords) succeeded in their subsequent application to the ECtHR.

63.  In my judgment, there is a difference between a case (such as the present) where the Court of Appeal is faced with one of its previous decisions, and a case (such as East Berkshire [2004] QB 558) where it is faced with a decision of this House. Although Lord Bingham’s remarks in paras 40 to 45 of Kay [2006] 2 AC 465 appear to refer to the doctrine of precedent generally in relation to the Court of Appeal, he was concerned with the issue of whether the Court of Appeal ought to have followed an earlier decision of this House (namely Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983), and all the cases he discussed involved previous decisions of this House, not of the Court of Appeal.

64.  Where the Court of Appeal considers that an earlier decision of this House, which would otherwise be binding on it, may be, or even is clearly, inconsistent with a subsequent decision of the ECtHR, then (absent wholly exceptional circumstances) the court should faithfully follow the decision of the House, and leave it to your Lordships to decide whether to modify or reverse its earlier decision. To hold otherwise would be to go against what Lord Bingham decided. As a matter of principle, it should be for this House, not for the Court of Appeal, to determine whether one of its earlier decisions has been overtaken by a decision of the ECtHR. As a matter of practice, as the recent decision of this House in Animal Defenders [2008] 2 WLR 781 shows, decisions of the ECtHR are not always followed as literally as some might expect. As to what would constitute exceptional circumstances, I cannot do better than to refer back to the exceptional features which Lord Bingham identified as justifying the Court of Appeal’s approach in East Berkshire [2004] QB 558: see Kay [2006] 2 AC 465, para 45.

65.  When it comes to its own previous decisions, I consider that different considerations apply. It is clear from what was said in Young [1944] KB 718 that the Court of Appeal is freer to depart from its earlier decisions than from those of this House: a decision of this House could not, I think, be held by the Court of Appeal to have been arrived at per incuriam. Further, more recent jurisprudence suggests that the concept of per incuriam in this context has been interpreted rather generously - see the discussion in the judgment of Lloyd LJ in Desnousse v Newham London Borough Council [2006] EWCA Civ 547, [2006] QB 831, paras 71 to 75.

66.  The principle promulgated in Young [1944] KB 718 was, of course, laid down at a time when there were no international courts whose decisions had the domestic force which decisions of the ECtHR now have, following the passing of the 1998 Act, and in particular section 2(1)(a). In my judgment, the law in areas such as that of precedent should be free to develop, albeit in a principled and cautious fashion, to take into account such changes. Accordingly, I would hold that, where it concludes that one of its previous decisions is inconsistent with a subsequent decision of the ECtHR, the Court of Appeal should be free (but not obliged) to depart from that decision.

67.  I note that my reasoning and conclusion on this point is not dissimilar to that of Jacob LJ in Actavis UK Ltd v Merck & Co Inc [2008] EWCA Civ 444, paras 92 to 107 in relation to decisions of the European Patents Office Board of Appeal (“the Board”). While I agree with him that the Court of Appeal should be free to depart from one of its previous decisions if satisfied that it is inconsistent with a subsequent decision of the Board, I disagree with him on two other points. First, I do not think that the Court of Appeal should be free to depart from a decision of this House which it considers to be inconsistent with a subsequent decision of the Board: for reasons already given, that should be a matter for your Lordships. Secondly, I do not consider that there is any reason for having a different rule of principle for decisions of the Board and decisions of the ECtHR, although I accept that (particularly in relation to decisions which are not of the Grand Chamber) the Court of Appeal may be less ready to depart from one of its earlier decisions which is inconsistent with a decision of the ECtHR than one which is inconsistent with a decision of the Board.

Conclusions

 
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