Can Court of Appeal Refuse to Follow Supreme Court?

The Court of Appeal of England and Wales is generally bound by the decisions of the Supreme Court (or formerly the House of Lords) due to the doctrine of precedent. However, there are exceptional circumstances where the Court of Appeal has refused to follow a decision of the Supreme Court. These instances are rare and often involve complex interpretations of the law, changes in legal principles, or differences in the facts of the cases.

Young v Bristol Aeroplane Co Ltd [1944] is a landmark case establishing the rules under which the Court of Appeal could depart from its own previous decisions. The ruling of this case also created a possibility where the Court of Appeal may or must decline to follow the decisions of the Supreme Court. 

Rule 1: The Court of Appeal can choose which of its own conflicting decisions to follow if it finds two previous decisions that are in conflict. This gives the Court of Appeal the flexibility to choose which Supreme Court decision to follow if there are two conflicting Supreme Court decisions.

Rule 2: The Court of Appeal is bound to depart from its previous decision if it conflicts with a decision of the Supreme Court.

Rule 3: The Court of Appeal is not bound to follow its previous decision if it was given per incuriam (i.e. through lack of care). For example, where a relevant statute or rule that would have affected the outcome was not considered by the earlier court. The means if the Supreme Court did not take into account a statue when deciding the case, the Court of Appeal must decline to follow the Supreme Court decision. This could happen when an Act of Parliament is enacted after the decision of the Supreme Court. Because statute law is the highest form of law in the UK, the Court of Appeal must follow the Acts of Parliament rather than the Supreme Court.

For example, in Miliangos v George Frank Ltd [1975], the Court of Appeal refused to follow the House of Lords’ decision in Re United Railways of Havana and Regla Warehouses Ltd [1960], which held that damages could only be awarded in sterling (British currency). The Court of Appeal, led by Lord Denning, decided that damages could be awarded in foreign currency instead, recognising changes in international trade and currency fluctuations. Although the House of Lords later confirmed this decision in Miliangos v George Frank Ltd [1976], the initial refusal by the Court of Appeal to follow the earlier House of Lords precedent due to changing economic conditions exemplifies the situations where it may decline to follow a Supreme Court decision.

Take a more recent case as an example. The case of R (on the application of Evans) v Attorney General [2014] involved a freedom of information request for correspondence between Prince Charles and government ministers. The Court of Appeal ruled that the use of a veto by the Attorney General to block disclosure was unlawful, despite a previous House of Lords decision in R (on the application of Jackson) v Attorney General [2005] suggesting otherwise. The Court of Appeal interpreted the legal principle differently, emphasising the rule of law and transparency. This decision was later upheld by the Supreme Court in R (Evans) v Attorney General [2015], illustrating that the Court of Appeal may choose not to be bound by the Supreme Court in exceptional circumstances.

On the other hand, the Human Rights Act 1998 introduced a significant modification to the doctrine of precedent. Section 3 of the Act mandates that UK courts must interpret legislation, so far as possible, in a way that is compatible with ECHR rights. If applying an earlier decision would result in a breach of Convention rights, the Court of Appeal can depart from its own precedent or the precedent of the Supreme Court in order to ensure compliance with the ECHR. Under Section 6 of the Act, it is unlawful for public authorities, including courts, to act in a way that is incompatible with Convention rights unless legislation requires otherwise. Therefore, if adhering to a precedent would violate a Convention right, the court is obliged to give effect to the ECHR, even if it means deviating from its own past rulings or those of higher courts.

For example, in Culnane v Morris & Another [2005], the High Court initially referenced the Court of Appeal decision in Plummer v Charman [1962] which interpreted Section 10 of the Defamation Act 1952 as limiting a candidate's ability to plead special privilege when publishing potentially defamatory statements during a campaign. However, with the Human Rights Act 1998 in force, particularly Section 3, which requires courts to interpret legislation compatibly with the ECHR as far as possible, the High Court reconsidered this position and deviated from the previous precedent of the Court of Appeal to construe primary legislation in a manner compatible with the ECHR.

The Court of Appeal is the highest court within the Senior Courts of England and Wales, and second in the legal system of England and Wales only to the Supreme Court of the United Kingdom. Although it is generally bound by the Supreme Court's decisions, it can depart from this rule when it believes that a Supreme Court decision was made per incuriam, when there are conflicting Supreme Court decisions, or when it interprets legal principles as having evolved due to changes in societal or commercial practices.