Question : [I]t is necessary for each lower tier, including the Court of Appeal to accept loyally the

decision of the higher tiers’ (Ld. Hailsham of St Marylebone in Broome v Cassel). Discuss

This question requires discussion about vertical precedent of the Court of Appeal which they are
bound to follow as it is a decision of the higher courts. In this answer we will discuss the general
practice of precedent- both horizontal and vertical, the decision of the UKSC in the cases of Broome
v Cassel, Miliangos v George Fank and W.B. v D.C., the decision of the UKPC in the cases of R v
James and Karini, and Willers v Joyce. Furthermore, the decision of the ECtHR in the case of Leeds
City Council v Price and the obiter of the case of R v Barton and Booth.
Judicial precedent plays a significant role in the development of English common law, and generally
the courts are bound to follow the earlier decisions in order to ensure fairness. In English courts,
judicial precedent is practiced in two ways: horizontal and vertical.
Horizontal precedent is the approach that courts take in order to follow its own earlier decisions. For
example, the UKHL was bound to follow its earlier decisions from 1898 to 1966 in London Street
Tramways Ltd., which was confined to the development of the law. However, in 1968, the House of
Lords announced and practice statement through which they achieved the freedom to depart from
their earlier decision based on their circumstances. Similarly, in the case of Young v Bristol, the
Court of Appeal have pointed out three exceptions where they are allowed to depart from their
original decisions.
Firstly, where two decisions are conflicting, the judges may follow whichever one they see fit, and
this must be followed in further cases. Secondly, where the decision conflicts with that of the UKSC,
the courts must follow the decisions of the Supreme Court. And finally, if a decision is ‘per
incuriam’- that decision loses its binding authority.
The concept of vertical precedent is when a lower court I s bound by the decision of the higher
courts. For example, the Court of Appeal is bound to follow the decisions of the UKHC. Besides the
UKHC, decisions of the UKPC and ECtHR are also issues for the Court of Appeal As they are not
considered as domestic courts- and these decisions are up for discussion.
However, Lord Denning has argued after the announcement of the Practice Statement that the Court
of Appeal should be allowed to depart from the decision of the House of Lords and two campaigns
were made, which are discussed below.
The major argument of Lord Denning is that the Court of Appeal is not bound to follow a decision of
the UKHL which has been declared per incuriam. Essentially, if a decision has been declared per
incuriam, it means that the House of Lords has failed to consider the appropriate and important
statute or previous case law, which led to the outcome. In Broome v Cassel, Lord Denning was able
to convince all the other judges in the Court of Appeal to depart from the earlier decision of the Court
of Appeal in Rookes v Bernard due to the failure of taking into account the UKHL’s earlier case law.
Once this case was appealed in the UKHL, this approach was rebuked and Lord Hailsham stated: “in
the hierarchical system of courts which exist in this country, it is necessary for each lower tier,
including the court of appeal, to accept loyally the decisions of the higher tiers” (Holland and Webb).
This is known as the per incuriam campaign.
The second campaign made by Lord Denning is the Lapsed Campaign. This campaign was once
again made for departing the decision of the House of Lords due to the changing social conditions in
Schorch Meier GmbH v Hennin- where the Court of Appeal departed from decision of the House of
Lords, but this case was not appealed in the UKHL. However, in the case of Miliangos v George
Fank, the House of Lords expressed their opinion and disapproved of the Lapse Campaign. It was
stated by Lord Simon that “Courts bound to the rule of precedent are not free to disregard an
otherwise binding precedent, on the ground that reason which led to the formulation of the rules
embodied in such precedent seems to the Court to have lost cogency.”
Similar issues were raised in the case of WB v DC where a homeless and mentally sick person
appealed against the decision of the local authority about his application for housing under the
Housing Act 1996. The Court of Appeal chose to not follow the decision of the UKHL in ex parte
Ferdous Begum. It was, however, expressed at para 51 by Lewison LJ that “it is not enough to enable
this court to refuse to follow an otherwise binding decision of the House of Lords unless it can be
said that subsequent statutes have impliedly changed the rule laid down by the House”. It is therefore
clear by his statement that the Court of Appeal is bound by the decision of the UKHL due to the
doctrine of binding vertical precedent.
In the case of R v James and Karini, the Court of Appeal confirmed their vertical position for a
conflicting decision between the UKHL and the UKPC. In this case, the issue was whether the Court
of Appeal should follow the decision of the Privy Council in Attorney General for Jersey v Holley, or
the decision of the House Lords in R v Smith (Morgan). By the ordinary rules of practice, they
should have followed the decision of the house of lords, but they chose to follow the decision of the
privy council for three reasons: firstly, both the benches of the UKHL and the Privy Council
comprised of the same law Lords. Secondly, the decision held was a majority decision where six out
of nine judges agreed to do so. Finally, it was clear that the House of Lords would eventually reach
the same decision. However, the UKSC confirmed in Willers v Joyce that the earlier decision of the
Court of Appeal is incorrect and that the domestic courts ought to follow their decision as a
representation of the law of the country.
S.2 of the HRA 1998 states that the domestic court must ‘take into account’ the decision of the
ECtHR in cases related to Convention Rights. However, they are not bound to do so. The vertical
position of the court of Appeal between the UKHC and the ECtHR was clarified in Leeds City
Council v Price by Lord Bingham at para 44, which says that the domestic courts should follow the
domestic rules of precedent, because when interpreting a convention case, a constructive dialog is
needed between the domestic and Strasbourg courts. Additionally, the ECtHr has allowed domestic
courts a ‘margin of appreciation’ to make interpretations based on their domestic legislation and
social conditions. Therefore, the Court of Appeal per ordinary rule of practice must follow the
decision of the UKSC.
In R v Barton and Booth, the issue that arose was whether the Court of Appeal should follow the
ratio of its earlier decision in R v Ghosh, or the obiter of the Supreme Court case of Ivey v Genting
Casinos to determine dishonesty. In Ivey, the UKSC overturned the Ghosh test for dishonesty in their
obiter, and it has been clarified at para 102 by Lord Burnett CJ that lower courts need to follow the
decision of the supreme court for the dishonesty test, even though it is strictly obiter dicta.
It can therefore be concluded that the Court of Appeal is bound to follow the decision of UKFC even
if the decision is obiter. However, in case of conflict with the decision of UKHL and the UKPC, they
will follow the decision of the UKPC since it is comprised of the same bench of law Lords.