Should later UT decisions which fully consider earlier ones and disapprove of them be followed in preference to the earlier decision?

Hi all,

Here is one on precedent issues for you all.

It used to be said (R(IS)13/01) that where two Commissioners’ decisions disagreed and the later one of them fully considered and rejected the other, earlier, one then the later decision should be followed as a general rule.

Then, in R(IS)9/08, that approach was rejected (although to be honest it is only by applying this approach that one would be able to say R(IS)9/08 overruled R(IS)13/01 and as that is precisely what R(IS)9/08 says cannot happen then this ends up being some sort of “what is the sound of one hand clapping?” question).

Specifically, in the latter case, the Commissioner said:

Precedent
25.  In R(IS) 13/01, Mr Commissioner Rowland applied Colchester Estates (Cardiff) v Carlton Industries plc [1986] Ch 80 to the Commissioners’ jurisdiction for this proposition:
“4.  … where there are two conflicting decisions of equal status and the earlier decision was fully considered in the later decision, the later decision should be followed unless the judge was convinced that the later decision was wrong … .”
26.  Mr Howells argued that, although Mr Williams did not refer to R(IS) 3/93, he must have been aware of it and had in effect considered and rejected the reasoning in that case.
27.  I reject that argument, because Colchester has been disapproved in Re Taylor (a bankrupt) [2006] EWHC 3029 (Ch), [2007] Ch 150. The correct approach now is for a judge:
“46.  … to 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.”
The Employment Appeal Tribunal had already taken this approach in Digital Equipment Co Ltd v Clements (No 2) [1997] ICR 237.

With me so far?

I noticed today that the Court of Appeal has recently had to consider some conflicting decisions it has made (in an immigration context). What is interesting is the reliance the Court placed on the Colchester principle (although they may not have been referred to Re Taylor etc.). The case is Patel and Ors v SSHD [2012] EWCA Civ 741. This is what the Court said:

59. In those circumstances, the highest that it can be put for the appellants is that we are free to choose between the two approaches – see Young v Bristol Aeroplane Co Ltd [1944] KB 718, 725-6. On that basis, for the reasons which I have given in the preceding section of this judgment, I would follow Lamichhane rather than Mirza. In fact, there is a strong argument for saying that it would anyway be more appropriate to follow the later decision. In Minister of Pensions v Higham [1948] 2 KB 153, 168, Denning J referred to ‘the general rule that where there are conflicting decisions of courts of co-ordinate jurisdiction, the later decision is to be preferred, if it is reached after full consideration of the earlier decision’ – a principle applied by Nourse J in Colchester Estates (Cardiff) v Carlton plc [1986] Ch 80, 85. Although that referred to first instance decisions, I consider that it also has force in relation to decisions of this court. [.....]

Given that this later decision is a Court of Appeal one and all the other stuff seems to be High Court or equal then I think the idea of a “later decision which fully discusses and rejects an earlier one takes precedence” may now have to be accepted again (in practice, this is usually what a tribunal will do anyway - regardless of whether it is bound to do so).

All a bit navel gazing I know but may be relevant….