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Home > Vol 21, No 1 (2015) > Lee

Fides et Ratio: Precedent in the Early Jurisprudence of the United Kingdom Supreme Court

James Lee [1]

Cite as Lee, J., "Fides et Ratio: Precedent in the Early Jurisprudence of the United Kingdom Supreme Court", European Journal of Current Legal Issues (2015) 21(1).

Abstract

This article examines the state of UK Supreme Court jurisprudence after its first five years of hearing cases, through the lens of its approach to the doctrine of precedent. The paper considers the four cases in which the Court has referred to the Practice Statement (Judicial Precedent) (which now forms part of the Court's Practice Directions). Building upon the work of Professor Alan Paterson, it is argued that those cases reveal an entrenched conservatism when it comes to departing from previous decisions. The paper goes on to analyse decisions from the past year, which saw the first cases (outside of human rights or European cases, to which different considerations apply) in which the Court was unanimous that it should depart from a previous decision of the House of Lords. The authorities reveal significant differences among the Justices about transparency when reasoning with precedent and the appropriate role of the Court more generally.

1. Introduction

This article examines the operation of the doctrine of precedent in the United Kingdom Supreme Court in the early years since the court's inauguration in 2009. [2] Professor Alan Paterson has made an outstanding contribution to the understanding of judicial decision-making in our top court, with two major studies, [3] and was recently described by Lord Neuberger as the Justices' 'perceptive and faithful chronicler'. [4] His latest book, Final Judgment, [5] examines the early jurisprudence of the Court and judicial attitudes, recognising too 'the tendency of the Supreme Court to date has been to pursue indirect methods of removing unhelpful precedents of the House rather than direct ones'. [6] The argument here is that those indirect methods pose a challenge to faithful engagement with the requirements of reasoning in our top court: of fides et ratio.

The focus here is on the court's treatment of its previous decisions and those of its predecessor, the Appellate Committee of the House of Lords. This is what is sometimes referred to as 'horizontal stare decisis': a court's approach to its own decisions. [7] As Paterson remarked in one of his early articles, the 'exercise of the Practice Statement relates par excellence to judicial lawmaking'. [8]

1.1. Timeliness and Timelines

At a conference to mark the Court's first three years, [9] I considered this topic. At that time, there had been only four occasions when the Supreme Court has made express reference to the Practice Statement (Judicial Precedent): [10] Austin v Mayor and Burgesses of the London Borough of Southwark, [11] Jones v Kaney, [12] Jones v Kernott [13] and R (on the application of KM) v Cambridgeshire County Council. [14] Those remain the only four cases to do so, out of several hundred decisions of the Court since its creation in 2009. [15]

In addition to Prof Paterson's new work, there are other reasons for revisiting the issue now. Outside of human rights or European cases, to which different considerations apply because of judicial hierarchy, [16] it was not until the end of its fifth year that the Supreme Court heard cases [17] in which it can be unequivocally said to have departed from House of Lords decisions. [18] In May 2014, the Supreme Court handed down judgment inR (on the application of Barkas) v North Yorkshire County Council, [19] followed by judgment inFHR European Ventures v Cedar Capital Partners. [20] Then, in March 2015, Montgomery v Lanarkshire Health Board [21] was decided. My examination of the Supreme Court's approach to precedent will focus on exploring the trends in reasoning through those three later decisions and the four 'Practice Statement cases' mentioned above. As we shall see, each of the three cases of departure has their own idiosyncrasies.

Another timely reason is the transformation in the Court's bench. In 2009, all bar one of the Supreme Court Justices had served as Law Lords. Although s 24(a) of the Constitutional Reform Act 2005 provided that the judges who were Law Lords immediately before the creation of the Court would become its first Justices, Lord Neuberger went to take up his post as Master of the Rolls rather than a seat in the Supreme Court, and Lord Clarke moved in the opposite direction. Lord Neuberger has since ascended to the top court, succeeding Lord Phillips as President. After his installation, Lord Neuberger issued a Welcome statement, which also expressly mentioned his view of the role of the court in respect of precedent:

We have a duty to work diligently to apply and develop the law in a coherent, principled and practical way. Our decisions should encourage certainty in the law for other judges, legal practitioners and the public alike. They should also promote not only the rule of law itself, but confidence in the rule of law, which helps sustain a stable, safe and prosperous society. [22]

More recently, in a speech in New South Wales, marvellously entitled 'Sausages and the Judicial Process: the Limits of Transparency', [23] Lord Neuberger observed:

judges should not be too ready to change or complicate legal principles simply to achieve a fair result in individual cases, but in some cases one can properly conclude that the unfairness is indicative of a general problem in the state of the law, which often results from a change in moral, societal, commercial or technological circumstances, and which justifies a principle being abandoned, created, or varied. [24]

But this is not only a question of Presidents and Precedents. Upon the retirement of Lord Hope in 2013, Lady Hale (who remains the Court's only female Justice) was appointed Deputy President, and now a majority of the Justices (eight out of the twelve) did not serve as Law Lords. [25]

1.2. Human Rights and European Cases

One of the cases to be considered below is FHR European Ventures, but first to explain the exclusion here of other 'European ventures' [26] with a few words about the approach to precedent in relation to decisions from Strasbourg and Luxembourg. The focus in this article is on the Supreme Court's approach to the Practice Statement outwith those two areas of law. Lord Neuberger, in an interview with the Independent on Sunday, identified five key cases from the first five years of the Supreme Court: [27] three were questions of human rights, [28] and one was European. [29] None of the main cases considered in the following sections made Lord Neuberger's list (although one, Montgomery, was decided after he was asked).

The obvious reasons for excluding EU/ECHR cases are the limitations of space for one article, and that the ground is covered much more fully elsewhere, [30] including by speeches of the Justices themselves. [31] On human rights, Lord Rodger's famous dictum that 'in reality, we have no choice:Argentoratum locutum, iudicium finitum - Strasbourg has spoken, the case is closed' [32] has been the subject of debate. Lord Kerr has extra-judicially suggested an alternative, referring to dialogue: 'Argentoratum locutum, nunc est nobis loquendum' - Strasbourg has spoken, now it is our time to speak.' [33] More recently, Lord Mance noted in Kennedy v The Charity Commission [34] that, on a relevant point, 'Strasbourg has spoken on a number of occasions to apparently different effects... It is not helpful for national courts seeking to take into account the jurisprudence of the European Court of Human Rights to have different section decisions pointing in directions inconsistent with Grand Chamber authority without clear explanation.' [35] But, whatever the precise relationship or dialogue between London and Strassbourg, the dynamics are different from the domestic context in terms of precedent.

The judicial hierarchy in the EU context is, at least in theory, clearer than is the case in the human rights context. Yet the debate over the role of precedent has been rekindled, and perhaps marked out for future controversy, by two recent Supreme Court decisions, in HMRC v Aimia Coalition [36] and the HS2 case. In Aimia Coalition, [37] a majority of the Court declined to follow a preliminary ruling from the CJEU, on the basis that the questions referred had not enabled the CJEU adequately to address the issues in the case. Lord Carnwath (joined by Lord Wilson) dissented, beginning his judgment with 'Luxembourg has spoken', [38] viewing the majority's approach as incompatible with the Court's responsibilities. Lord Reed has extra-judicially described the HS2 case [39] as, in his view, 'the court's most significant decision on EU law, and arguably on constitutional law.' [40] It is, at the very least, 'a shot across the bows of the CJEU.' [41]

So I do not take the view that the positions on Supreme Court precedent where Strasbourg or Luxembourg has spoken on a point are uninteresting: on the contrary, they are intensely controversial. But I should also argue that the questions of precedent in these contexts are different, because they involve relationships with other supranational courts, and a process of dialogue, as well as the legislative requirements under the Human Rights Act 1998 and the European Communities Act.

1.3 Themes

It is argued below that the patterns identified in this article show differences in approach amongst the Justices, not least over when a change is better left to Parliament [42] one of the common reasons given by the Justices when declining to depart from a precedent is that. Professor Burrows has called it 'an abdication of judicial responsibility for judges, at least in the law of obligations, to decline to develop the common law on the grounds that legislation is more appropriate. [43] My argument here is that, at the very least, we need to understand the relevance of legislation (or the spectre of legislation) to the reasoning of our Supreme Court Justices: it is a marked feature of judicial practice. [44] It may well be legitimate for a court to conclude that a change is so dramatic that it should only be effected by legislation: what is important is for us to know why.

Another major trend which I identify is a demonstrable coyness over departing from precedents. [45] This point is particularly noticeable given the motivation for the Practice Statement. When their Lordships recognised their ability to depart from prior decisions, the intention was to free the judges from the awkwardness of the practice of distinguishing bad precedents, confining them to their facts and so on, [46] which ran the risk of both discrediting the highest court and bringing the law into disrepute. The recognition of the power to depart from previous decisions is an integral part of our doctrine of precedent: '[the] value of the doctrine of precedent to the common law… is not simply that it ensures respect for past decisions but also that it ensures that bad decisions do not have to be repeated.' [47] My concern is that, paradoxically, the freedom to depart has led to a certain uncertainty over our highest court's treatment of precedent: the language of precedential reasoning in the cases demonstrates a desire to avoid exercising the power to depart. [48]

It is not a simplistic choice between 'liberal' and 'conservative' approaches to precedent; or between temerity and timidity. As Lord Diplock put it in his 1965 Holdsworth Club Presidential Address, there is a 'conflict inherent in the judicial process between the need for certainty and the need for change' and one must avoid the danger of rules becoming 'fossilised'. [49] Lord Carnwath has made the same point as to the value of 'pragmatism, and an ability to evolve and develop to meet the conditions of a changing world.' [50] So too Lord Dyson:

That is judicial temperament. It is an escapable fact that some judges are more conservative than others. Some are cautious and prefer to paddle in the warm and safe shallows of clear precedent. Others are more adventurous and are prepared to give it a go in the more treacherous waters of the open sea. [51]

However, arguing for the value of certainty does not necessarily require that rules never change: in fact, a change in precedent may serve to clarify the law and rescue it from a state of uncertainty. [52] The Practice Statement was for that reason an important addition to the judicial arsenal. Even though the Justices do have the power to depart from previous decisions, it still behoves them to be clear as to whether they are doing so, and to observe 'the kind of care in decision-making that a duty to respect precedent generates'. [53]

2. The Practice Statement

The Practice Statement [54] was announced by Lord Gardiner LC on 26 July 1966 (four days before England won the FIFA World Cup):

Their Lordships regard 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.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.

In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

This announcement is not intended to affect the use of precedent elsewhere than in this House.

Three immediate points may be made about the Practice Statement. [55] First, it is highly significant that the House resolved to 'modify [its] present practice' and adopt the ability to depart from previous decisions. Second, the power to depart from a previous decision is to be exercised 'when it appears right to do so'. At first sight, that seems to be a very broad power. However, and this is the third point, the recognition of a power to depart is expressly couched in the context of precedent as 'an indispensable foundation' for judicial decision-making. Their Lordships affirm respect for certainty and recognise the dangers of disturbing existing arrangements. That the power is a limited one would seem to be borne out by the relatively restrained use which the House made of the Practice Statement in subsequent years. [56] In his excellent book on the doctrine of precedent, Professor Duxbury described the language of the Statement as 'decidedly timid', arguing that what 'the Practice Statement ought to have said - what, indeed, it was taken to mean - was that the House of Lords would now overrule its previous decisions when it appeared right to do so'. [57]

In my view, however, there is a usefulness in the phrase 'departing from': for one thing, I am not convinced that quite the same considerations apply to a change of precedent where a higher court is reversing a decision of a lower court, which is a true case of overruling. Where a court at the same level is changing a precedent in the form of one of its own decisions, 'departing' makes that clear. In particular, 'overruling' implies that the subsequent court has a greater status over its predecessors. Thus the Supreme Court has continued to use the language of 'departure' rather than 'overruling', generally saving the latter when correcting a precedent from a court of inferior jurisdiction. We shall return to this point of terminology throughout the article.

It was noted above that we shall see regular reference to the possibility of Parliamentary change is that the question is not whether it is right that the law should be changed: rather, it is whether it is right that it should be changed judicially. In that context, as Duxbury has noted,

Opportunities to use the power [under the Practice Statement], it should be noted, diminished at the very time that it was created: the establishment of the Law Commission in 1965 led to an increase in legislative activity, which made the overruling of some unsatisfactory House of Lords precedents unnecessary. [58]

Upon the transition from the Appellate Committee of the House of Lords to the United Kingdom Supreme Court, the Practice Directions made no observation as to the operation of precedent in the new Court. [59] It would have been possible for the Court to adopt an entirely new approach to precedent: Lord Hope, in a 2010 lecture at Edinburgh, had noted that the 'most significant force for change [has been] that the Supreme Court has been released from the rules and conventions of the House of Lords and is free to develop them for itself'. [60] Indeed, on that occasion, Lord Hope apparently declined to clarify the extent to which the Practice Statement continued to apply. [61] It was not until towards the end of the Court's first year of judgments that this particular aspect of the doctrine of precedent was considered.

3. Austin v Southwark

Austin v Mayor and Burgesses of the London Borough of Southwark [62] concerned the ending of a secure tenancy and the provisions of s 82(2) of the Housing Act 1985: briefly, the point was whether such a tenancy ends when the tenant breaches the terms of a suspended possession order, or only later, when that order is executed, ie, when the tenant actually gives up possession. There were two House of Lords authorities relevant to the point and which the Court had to consider: Burrows v Brent London Borough Council [63] and Knowsley Housing Trust v White. [64] Lord Hope DPSC spoke for the Court when he explained:

The Supreme Court has not thought it necessary to re-issue the Practice Statement as a fresh statement of practice in the Court's own name. This is because it has as much effect in this Court as it did before the Appellate Committee in the House of Lords. It was part of the established jurisprudence relating to the conduct of appeals in the House of Lords which was transferred to this Court by section 40 of the Constitutional Reform Act 2005. So the question which we must consider is not whether the Court has power to depart from the previous decisions of the House of Lords which have been referred to, but whether in the circumstances of this case it would be right for it to do so. [65]

s 40 of the Constitutional Reform Act only refers to the jurisdiction of the Supreme Court, and the transfer from the House of Lords. It did not expressly require the Court to adopt the same practices as the House. Lord Hope also went on to make clear that the Supreme Court plans to take the same approach as the House had to the exercise of the power. [66] The House's practice as to the Practice Statement was characterised by self-restraint. In Horton v Sadler, [67] a case on limitation, the House departed from Walkley v Precision Forgings Ltd. [68] Lord Bingham noted that, in the forty years since the Practice Statement, 'the House [had] exercised its power to depart from its own precedent rarely and sparingly. It has never been thought enough to justify doing so that a later generation of Law Lords would have resolved an issue or formulated a principle differently from their predecessors'. [69]

In Austin, although Lord Hope had sympathy with the alternative suggested interpretation of the section, his Lordship was not persuaded that it would be right to depart from the earlier decisions. [70] The view taken in the earlier cases had been assumed to be correct in countless cases. A significant factor against changing the law was the enactment of provisions of the Housing and Regeneration Act 2008, [71] which clarified the particular problem in the cases. To change the common law on the point would thus 'contradict the will of Parliament'. [72] Even though the position in the authorities could be seen to be 'unsatisfactory', [73] there were 'very good' reasons not to depart from the previous decisions.

Lady Hale JSC [74] issued a concurring speech: in her opinion, there was 'no House of Lords case which [had] addressed the issue full on and reached a reasoned conclusion about it'. Instead, the House of Lords authorities had merely incidentally addressed the law as stated in a Court of Appeal decision. [75] Her Ladyship viewed the state of the authorities as resulting in 'nonsense': [76] the authorities 'were not merely wrongly decided. They set the law on a course which was wrong in principle and wrong in practice.' [77] Nevertheless, Lady Hale agreed, albeit 'reluctantly', [78] that the intervention of Parliament - acting on the basis of problem presented in the authorities - meant that there should not be a departure from the previous case law. Parliament had 'recently devised a considered and carefully balanced solution to the problem', [79] and the Court should respect Parliament's solution. [80] That said, the Supreme Court was able to allow the appeal on an alternative ground: 'the fact that the former secure tenant has died does not deprive the court of its jurisdiction to exercise the power conferred on it by section 85(2)(b) of the 1985 Act to postpone the date of possession under a possession order.' [81] So the Justices' desired result was reached, but without departing from the precedent (one may wonder whether the Justices' approach to precedent under s 82(2) would have been the same had this escape route under s 85(2)(b) not been open to them). [82]

Austin then endorsed not only the Practice Statement itself, but also the subsequent jurisprudence of the Lords on when and how the power to depart ought to be exercised. That confirmation in Austin has since been incorporated into the revised Practice Directions: [83] Direction 3.1.3 reiterates that the Statement still applies and requires that an application for permission to appeal to the Supreme Court must state clearly if it is to ask 'the Supreme Court to depart from one of its own decisions or from one made by the House of Lords'. [84]

Although it has not yet been necessary to decide it, the Supreme Court appears to have endorsed another of the House of Lords' approaches to precedent, concerning prospective overruling. In In Re Spectrum Plus, [85] the House held that, as a matter of principle, it would be possible for the Court to limit the retrospective effect of a decision. [86] In Cadder v Her Majesty's Advocate, [87] Lord Hope would have wished to exercise the power, had it been open to the Justices to do so (albeit that he concluded that it was not open to the Court, in the light of the Strasbourg jurisprudence on the particular point). [88]

4. Jones v Kaney

4.1 Facts and Outcome

In Kaney, a majority of the Supreme Court held that expert witnesses do not have a general immunity from suit in the tort of negligence in respect of their conduct relating to a trial. The case involved a strike-out action. The appellant [89] had been knocked off his motorcycle by a drunk and uninsured driver. He suffered physical injuries but also various psychiatric consequences, including depression and post-traumatic stress disorder (PTSD).

The respondent, a consultant clinical psychologist, acted as an expert witness for the claimant in his personal injury claim against the driver and the Motor Insurance Bureau. Liability was admitted by the relevant insurer, but the issue of quantum had to be determined at trial. The insurer's expert took the view that the appellant was exaggerating his symptoms. The respondent, having examined the appellant, was more generous in her assessment. The trial judge ordered the two experts to prepare an agreed joint statement. The experts had a discussion over the telephone and the defendant's expert witness drafted a joint statement, which the respondent signed without commenting upon it or requesting any amendments. The joint statement suggested that the appellant's psychological symptoms were not of the order to justify a diagnosis of PTSD, and that 'the respondent had found the appellant to be deceptive and deceitful in his reporting'. [90] The respondent claimed that the report did not accurately reflect her views, but that she had felt under pressure to agree to it: 'her true view was that the claimant had been evasive rather than deceptive'. [91]

The appellant sought to sue the respondent, claiming that as a result of her negligence in agreeing to the joint statement, he had had to settle for a considerably lower sum than would otherwise have been the case. At first instance, the respondent successfully argued that the action must be struck out because she was able to rely on the immunity [92] from suit for an expert witness. Blake J, however, granted a leapfrog certificate [93] for permission to appeal to the Supreme Court. [94] That certificate was granted because, in Stanton v Callaghan, [95] the Court of Appeal had determined that an expert witness's immunity included the preparation of a joint statement, with Chadwick LJ holding that the 'immunity is needed in order to avoid the tension between a desire to assist the court and fear of the consequences of a departure from previous advice.' [96] The concern is that a servant cannot serve two masters; and the duty to the court should take priority.

The Court was split 5:2 on the appeal, with Lord Phillips PSC giving the leading opinion for the majority, and Lord Hope and Lady Hale dissenting. There are two features of the decision to consider, aside from the merits or otherwise of protecting expert witnesses, (whether generally or the seemingly negligent respondent in the instant case). [97]

4.2 Was there a House of Lords authority on the point?

The first point is that, somewhat remarkably, the Justices could not agree over whether there was a relevant House of Lords authority on the point. Lord Hope and Lady Hale [98] believed that there was, and therefore argued that to declare that there was no such witness immunity would involve a departure from authority. The majority disagreed.

The Kaney majority's view certainly overruled Stanton. The majority Justices focused upon the specific question of whether paid expert witnesses should retain immunity from suit in negligence. That narrow question was traced to the 1992 decision of Palmer v Durnford Ford, [99] a decision of Simon Tuckey QC, sitting as a Deputy High Court judge: the Justices did not view the case as a sure foundation for the immunity. Instead, the majority held that the 'general rule [is] that every wrong should have a remedy and that any exception to this rule must be justified as being necessary in the public interest.' [100] The immunity for expert witnesses could no longer be justified.

However, there were obiter dicta from Arthur Hall v Simons, [101] the case in which the House of Lords removed advocates' immunity from suit from negligence claims in respect of civil and criminal proceedings. In that case, several of their Lordships had directly referred to witness immunity, which was not impeached, in contrast to that of advocates. [102] Furthermore, the minority in Kaney believed that there was a House of Lords authority for the proposition that no action lies against a witness for any evidence which they give to court (whether during the trial or in preparation for it): the decision in Waston v M'Ewan. [103]

Watson itself is a short case, running to just nine pages of the law reports, and was an appeal to the House of Lords from the Court of Session. The claim was brought against a doctor, who had given evidence in a court dispute between a husband and a wife. It was originally framed in slander and breach of confidence. The House of Lords held that the immunity of witnesses extended not only to what was said in court, but also to things said in preparation for trial. Watson had been recognised as establishing the immunity in a variety of English cases, [104] and Lord Hope [105] concluded that it was part of 'a formidable body of authority which should not be lightly disregarded'. [106] Lady Hale in fact began her judgment by quoting the Practice Statement: [107] observing that the instant case illustrated 'how hard it is to apply that wise guidance in practice'. [108]

Surprisingly, the majority did not really engage with the relevance of Watson: in 126 paragraphs of the five majority judgments, Watson is mentioned only once, in paragraph 19, where Lord Phillips observes that Watson is a Scottish case, 'of unusual facts'. (Incidentally, there is nothing in the judgment of the Earl of Halsbury LC in Watson to suggest that it was limited to Scots law). [109] Having quoted the Early of Halsbury's judgment, Lord Phillips regarded it as of limited assistance:

'Watson lends some support for extending witness immunity to experts, but it is right to observe that the focus of the House of Lords appears to have been the claim for slander and the case was not concerned with the duty of care that, under the modern law, is owed by an expert to his client.' [110]

Lord Dyson (whose analysis persuaded Lord Kerr) stated that he could not agree with Lord Hope's view that there was a lengthy body of authority in favour of the immunity, [111] instead assessing the immunity in the specific context of claims in negligence. Lord Kerr has since said that 'it was clear that an expert witness's litigation immunity was not a hallowed monument of the common law at all.' [112] Lord Dyson told Paterson in an interview that Lord Hope's early circulation of his judgment allowed 'gave [him] something to argue against.' [113]

Yet Lord Dyson did not consider Watson at all. Criticisms can of course be made of Watson: in Lincoln v Daniels, Devlin LJ had observed that it was 'not at all easy to determine the scope and extent of the principle' [114] recognised by the House of Lords. But the doctrine of precedent requires faithful engagement with relevant House of Lords and Supreme Court authorities: they may be applied, distinguished or departed from if needs be under the Practice Statement. Watson ought not to have been ignored: [115] as Lord Hope put it, it was 'not just a fringe decision'. [116]

4.3 The Correct Starting Point?

Watson aside, though, it was clear that there were authorities recognising immunity from suit for expert witnesses, albeit possibly not at House of Lords level. The second point of interest then is that the dispute between the majority and minority also involved a disagreement over the correct starting point. Lord Phillips for the majority stated: 'It would not be right to start with a presumption that because the immunity exists it should be maintained unless it is shown to be unjustified. The onus lies fairly and squarely on the respondent to justify the immunity behind which she seeks to shelter.' [117] Similarly, Lord Kerr observed, that '[whether] or not witness immunity has had a long history (and, as to that, I agree with Lord Dyson that this is far from clear) this court should not be deflected from conducting a clear-sighted, contemporary examination of the justification for its preservation.' [118] But the existence of a relevant precedent is a reason to preserve the immunity. The question of precedent is distinct from the question of the wisdom or otherwise of the immunity. It provides a reason for the rule outside of the arguments and the merits of the particular case. [119]

Lord Hope was particularly unhappy [120] with what we might call the 'bootstraps' argument, that, by analogy with the removal of the immunity for advocates in Arthur Hall, so should the expert witness immunity be removed:

I find this disturbing. I do not think that anyone who sat in Arthur J S Hall & Co v Simons foresaw that removing the immunity from advocates would be taken as an indication that it should be removed from expert witnesses too… There is a warning here, to repeat the old adage, that one thing leads to another. Removing just one brick from the wall that sustains the witness immunity may have unforeseen consequences. [121]

For Lord Hope, it was unsatisfactory for Arthur Hall, in which the expert witness immunity was expressly not challenged, to then become authority to be used in favour of removing that very immunity.

Since it was decided, Kaney has become judicial shorthand for the 'basic principle' [122] that 'wrongs should be remedied'. Lord Kerr has been a fervent advocate of this principle, both curially [123] and extra-curially: [124] 'If two tenets of the common law conflict with each other, it is hardly satisfactory for a Supreme Court to say that the more concrete one, or the older one, must always prevail.' [125] The risk here is that that approach may be question-begging: the correlative 'principle' might equally be that 'not-wrongs should not be remedied'. [126] As Lord Rodger observed in JD v East Berkshire Community Health NHS Trust: [127]

I do not actually find it helpful to bear in mind - what is in any event obvious - that the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied. Harm which constitutes a "wrong" in the contemplation of the law must, of course, be remedied. But the world is full of harm for which the law furnishes no remedy.' [128]

5. Jones v Kernott

In Kernott, the Supreme Court considered the question of the property rights of unmarried cohabitants in their shared home, in situations where the parties have not expressly agreed what their respective shares to be. In order to understand the case we need briefly to consider the earlier authorities in this area, especially the controversial decision of the House of Lords in Stack v Dowden, [129] four years previously. [130]

5.1 Background

There were three earlier decisions of the House of Lords on cohabitation: Pettitt v Pettitt, [131] Gissing v Gissing [132] and Lloyd's Bank v Rosset. [133] Those cases had established that both the resulting trust and the constructive trust may be used to establish an interest in the home; that with the common intention constructive trust the search was for the parties' actual intentions; and that it was not possible to 'impute' intention (to attribute an intention to the parties even though they did not have it). Finally, in Rosset, Lord Bridge had famously observed that, in the absence of agreement,

the court must rely entirely on the conduct of the parties both as to the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. But, as I read the authorities, it is at least extremely doubtful whether anything less will do. [134]

Stack was however the first time that the House had had the opportunity to examine property rights in the situation where an unmarried couple had lived together in a home, title to which was in both of their names, and where both had contributed substantially to the purchase of the property. [135] Their Lordships therefore felt able to recast the law. The leading speech in Stack was delivered by Lady Hale, while Lord Walker added a concurring speech, which he described as 'a sort of extended footnote' [136] to her Ladyship's opinion. The House in Stack decided that there was no room for the presumed resulting trust in the 'domestic consumer context': [137] instead the common intention constructive trust was the appropriate basis for calculating the respective beneficial interests. The House wished to establish a simplified framework, [138] based upon the starting presumption that equitable interests reflected the legal interests. Where legal title to the property is in the name of one party, the presumption is that the sole beneficial interest rests with them; where it is in joint names, the presumption is that the beneficial interest is shared 50:50. There would be a 'considerable burden' [139] on the party asserting that the beneficial interests should differ from their legal interests, as this framework was intended to govern most situations. It was recognised in Stack that it was possible that the parties' intentions may change over time. [140]

The majority also suggested, although it was not necessary for the decision, that it may be permissible to impute an intention - that is, to ascribe an intention which the parties did not actually have. [141] Lord Neuberger vehemently dissented in Stack, [142] both as to the general approach - his Lordship would have applied the resulting trust analysis to all situations concerning the purchase of property, regardless of the parties' relationship - and, particularly, on the suggestion that imputation was permissible:

To impute an intention would not only be wrong in principle and a departure from two decisions of your Lordships' House in this very area [Pettitt and Gissing], but it also would involve a judge in an exercise which was difficult, subjective and uncertain. [143]

It is certainly the case that the earlier House of Lords decisions indicated that imputation was not possible: for example, Viscount Dilhorne in Gissing had made clear that 'one cannot counteract the absence of any common intention at the time of acquisition by conclusions as to what the parties would have done if they had thought about the matter'. [144]

Paterson offers valuable insights into the deliberations in Stack, attributing Lord Neuberger's trenchant dissent to having lost an initial majority in his favour by the time Lady Hale's judgment emerged. [145]

5.2 The decision in Kernott

Kernott engaged with several of the lingering points of uncertainty after Stack. It involved the breakdown of the relationship between Ms Jones, a hairdresser, and Mr Kernott, an ice-cream salesman. They were an unmarried couple with children, who had lived together in a house, 39 Badger Hall Avenue, which was in their joint names, for just over eight years. Their relationship ended and Mr Kernott moved out: he had nothing more to do with the property until the case came to court fourteen years later. The question for the Supreme Court was as to the extent of their respective beneficial interests in their property. Significantly, it was accepted that the parties' interests were equal up to the moment when Mr Kernott left. [146] The Supreme Court unanimously allowed the appeal and restored the first instance judge's original conclusion that the parties' intentions had changed and that the beneficial interests should be held 90:10 in favour of Ms Jones.

The Supreme Court did not however speak with one voice as to the reasons for allowing the appeal. [147] Lord Walker and Lady Hale gave a joint leading judgment, and reaffirmed their approach in Stack. [148] Lord Collins agreed with that joint judgment. Lords Kerr and Wilson, however, while concurring in the outcome, disagreed with the majority's approach, both in terms of principle and on the facts of the case. This dispute turned upon the breadth of the judicial ability to infer the parties' intentions from their conduct. The majority found it possible to infer - to conclude on the evidence - that, in the light of their dealings with the property since the end of their relationship, the parties' actual intentions were that Ms Jones should have a greater share. For the minority, it was not possible to draw such an inference, because the parties simply had not thought about it. What the minority were prepared to do, however, was to impute that intention: that is, to ascribe such an intention to the parties, even though they did not actually have it.

The effect of Kernott is that it may be much more likely that the presumptions under the Stack 'general framework' will be more easily rebutted. [149] One should always be wary when a court creates a general rule, but in the next breath recognises an exception to that very rule. Aside from the decision under appeal, [150] there was no mention of any of the many Court of Appeal decisions following Stack which had sought to apply the framework in one way or another. [151] A particular question which had been examined in several of the authorities was the very question of post-acquisition change of intention, and the courts had been reluctant to infer such a change of intention. [152] This, as Professor Cooke has noted, is an 'inevitable outcome of our system of precedent; a decision has a ratio, and only later cases can really determine how broad that ratio is. So one major decision is likely to be followed by a series of satellite cases determining its extent.' [153] And yet, this considerable, rapidly-developed body of case-law was seemingly ignored by the Court in Kernott.

5.3 'Moving On'

Another feature of Stack, endorsed in Jones, is the language used in the treatment of the authorities. There was no talk of overruling. Instead, it was asserted that the law had 'moved on' [154] since the earlier authorities. But, with respect, if before the decision, the law was one thing (one cannot impute intention) and after the decision, the law is something else (one can impute intention, albeit in limited circumstances), then, while it may be 'moving on', it is a change in precedent.

Thus, a difficulty with both Stack and Kernott is that the Justices appeared to wish to have it both ways. The freedom which the judges felt that they had in these two cases was because the earlier House of Lords authorities had been single names cases, involving trivial 'contributions', [155] and those distinctions justified reconsidering the law. However, if the facts of Stack and Kernott were distinguishable from the previous House of Lords authorities, then it is questionable whether it was legitimate for those authorities to be undermined without expressly being overruled. It would have been possible, if undesirable, simply to adopt a separate regime for joint names cases: yet Kernott confirms that there is overall a single regime. So why, therefore, was there no mention of use being made of the Practice Statement?

Only Lord Collins, concurring with the joint judgment, referred to the Practice Statement:

I would hope that this decision will lay to rest the remaining difficulties, and that it will not be necessary to revisit this question by reconsideration of the correctness of Stack v Dowden, by which this court is bound (subject to the application of Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 regarding departure from previous decisions). It should not be necessary because the differences in reasoning are largely terminological or conceptual and are likely to make no difference in practice. But should it be necessary, the court (no doubt with a panel of seven or nine) would need much fuller argument (together with citation of the enormous critical literature which the decision has spawned) than was presented to the court on this appeal. [156]

Here, his Lordship is only considering the matter of precedent as an issue for the future. Although Kernott purports to follow Stack, and broadly does so, [157] it is arguable that there was a conflict between those two decisions and the earlier authorities of the House of Lords, especially as regards imputed intention (even if confined to a 'fall-back position' as suggested in Kernott). The earlier authorities were largely glossed over by the Justices in Kernott: Lord Diplock's speech in Gissing was given some attention (being the most sympathetic to the idea of imputation), [158] while Rosset received only a passing mention in Lord Collins' judgment. [159] Pettitt is still referenced for observations about the relevance of presumptions, [160] without any mention of whether it generally remains good law. The conflict persists. There is thus a certain irony in Lord Collins' invocation of the Practice Statement, because reference to it was conspicuous by its absence in Stack. [161] Nor does Kernott resolve the issues, as academic reaction to the decision indicates [162] (Paterson refers to the possible placation of 'disgruntled academics' in this context). [163]

Their Lordships in Stack subtly planted the possibility of the imputation of intention, and reaped the harvest in Kernott. The position appears to be that Pettitt and Rosset have been undermined, though not expressly departed from. It seems that Stack reset the clock to zero. 'The law has moved on'; the tide has turned; the winds have changed. As Lord Hope said in Kaney, one thing has led to another. [164]

6. R (KM) v Cambridgeshire County Council

A seven-strong panel was convened for the appeal in what remains the last case to have mentioned the Practice Statement, KM, because it appeared that the appeal would involve the question whether the House of Lords decision in R v Gloucestershire County Council, ex p Barry [165] was correctly decided. Barry had concerned the relevance of resource allocation constraints on a local authority to the decision-making process under s 2 of the Chronically Sick and Disabled Persons Act 1970. A majority of the House of Lords had held that such constraints may be factored into the decision, on the basis that 'needs for services cannot sensibly be assessed without having some regard to the cost of providing them. A person's need for a particular type or level of service cannot be decided in a vacuum from which all considerations of cost have been expelled.' [166]

The appellant was a severely disabled man in his twenties, and the judicial review proceedings sought to challenge the local authority's assessment of the amount which it ought to pay him pursuant to its duties under s 2(1) of the Act. There was a history of disagreement between the Council and the appellant's family, who believed that he ought to be entitled to more than he was being offered. The authority had proposed an annual sum of £85,000, based upon its Resource Allocation System, rather than accepting the full extent of the appellant's claimed needs. The failure of the Council to explain the basis of its calculation was the root cause of the proceedings.

The reason why it was thought that the Practice Statement would be engaged in KM was because of the Supreme Court decision in R (McDonald) v Kensington and Chelsea Royal London Borough Council, [167] in which Lady Hale had vigorously dissented, and a case during which, Paterson reports, 'it would be fair to say that relations between the Justices were somewhat strained'. [168] Her Ladyship 'confessed' that she found 'the reasoning of the minority in Barry much more convincing' [169], referring to it as 'the principled view'. [170] Her Ladyship continued that she:

could have wished, therefore, that counsel had taken the opportunity presented by coming to this court to argue that Barry was wrongly decided. It was, after all, a comparatively recent decision, taken by a bare majority, on a highly arguable point of statutory construction. [171]

Lady Hale did conclude that, notwithstanding her view of Barry, that it would not have been necessary to hold that it was wrongly decided in order to determine the appeal. [172] In the light of the vehemence of Lady Hale's dissent, counsel for the appellant in KM drafted the grounds of appeal on the day on which the McDonald judgments were delivered. [173] We may note in passing that, as Lady Hale recognised and Lord Brown also pointed out, the appellant in McDonald had not suggested that the Court may wish to revisit the decision in Barry. [174]

However, the possibility of departing from Barry in KM turned out to be something of a false alarm, and the appeal in KM was unsuccessful. For the Council had never sought to rely upon resource constraints in making its decision, and 'it is always open to an authority to decide to meet a particular need by the provision of a cheaper service - so long as it duly meets it - rather than of a more expensive service.' [175] Once the basis of the Council's calculation had become clear, it was not susceptible to challenge, as it was calculated rationally and it was on the authority's view more than sufficient to meet his actual needs. [176]

Barry was therefore not engaged by the appeal in KM. The Supreme Court apologised [177] to the parties and the charities which had intervened in the case, for raising their expectations. Since the outcome of the case was thus determined, Lord Wilson, who delivered the leading judgment, [178] stressed that it was 'important to say as little as possible - and certainly nothing controversial - about the decision in … Barry'. [179]

However, the Court did not heed this warning. Lord Wilson noted that there were 'arguable grounds for fearing that the committee [in Barry] fell into error', [180] and cited Lady Hale's comments in McDonald, but without mentioning that those views were in dissent. His Lordship reiterated that Barry was decided by the 'narrowest possible margin'. [181] Lady Hale separately concurred, conceding that her observations were 'strictly by the way', but stating that they were intended to 'clarify the debate'. [182] The concurrence included a repetition of her reservations about the legal position:

[It] is left to each local authority to decide which level of need will be eligible for the services which they provide or arrange. The unpalatable result is that exactly the same level of presenting need will be eligible for services in one authority area but not in another. But that is currently the law. [183]

She further hoped that, even though Barry was not to be overturned, the appellants and the intervening charities 'may feel that their journey has not been entirely in vain,' [184] after her comments and those of Lord Wilson.

The 'clarification' offered must be that Barry remains good law as a matter of authority but has been significantly undermined: it could be regarded as vulnerable on the next occasion it should be engaged in an appeal to the Supreme Court. [185] We find another example of 'bootstraps' reasoning and it is difficult to accept that the state in which the Supreme Court has left the law here is satisfactory. When Ms McDonald took her case to Strasbourg, the European Court of Human Rights endorsed the majority approach to such local authority decisions. [186]

7. R (Barkas) v North Yorkshire County Council

The above account demonstrates that, outside of the (for precedents, Elysian) fields of human rights and European Law, the record of the Supreme Court is of a reluctance to depart from precedent, albeit sometimes in circumstances where there are concerns over the transparency of the reasoning involved. It is thus striking that the first clear departure from precedent came during the Court's fifth year, and yet the Practice Statement was not mentioned at all. The first occasion on which the Supreme Court held that a House of Lords decision was no longer to be followed was Barkas. In that case, the Supreme Court held that the earlier authority of R. (on the application of Beresford) v Sunderland City Council [187] should no longer be relied upon. It is on the topic of village greens, which the Supreme Court has considered four times in its early years. [188]

The facts in Barkas were that the local authority had acquired land on which to build houses. It had also set out a recreation ground for the benefit of those living in the properties, pursuant to a power under what is now s.12(1)(b) of the Housing Act 1985. A local resident applied under s.15 of the Commons Act 2006 for the field to be registered as a town or village green, on the basis that land has been used by 'a significant number of inhabitants … as of right in lawful sports and pastimes … for a period of at least 20 years'. The question for the court was whether the use of the land was 'by right' or 'as of right'. 'By right' (or 'of right') means that one has permission from the landowner (or some other right to use the land); 'as of right' means one has not such permission but uses the land as though one does. [189]

The Supreme Court unanimously held that, because the land was held under s.12 of the 1985 Act, the public had a statutory right to use the grounds, and so their use was necessarily 'by right'. It was not therefore possible to register the land as a town or village green under the 2006 Act. This conclusion must be right, as Lord Neuberger noted: the 'argument is as compelling as it is simple'. [190] It might then be wondered why the case had to reach the Supreme Court at all.

The reason for the Supreme Court to hear the case was Beresford. In that case, the relevant land was acquired under the New Towns Act by a development corporation, for no particular purpose. The land was later identified as 'parkland/open space/playing field' for planning purposes in the local 'New Town Plan'. The public subsequently used it for recreation: benches were provided and the grass was mown. There was an application to register the land as a town green (under the then Commons Registration Act 1965). The Council argued that the public had been using the land pursuant to a licence by the council and its predecessors, and also pursuant to s21(1) of the New Towns Act 1965 (later replaced by the New Towns Act 1981). So the use, either by licence or under statute, had been 'as of right'. The House of Lords rejected this argument and held that the land was used 'as of right'.

Lord Neuberger considered that the basic approach in Beresford to the meaning of 'as of right' supported his own analysis in Barkas. [191] More problematic, however, was the approach to the statute as not granting a right to sue the land.

The Supreme Court held that it was possible to distinguish Beresford, as the facts were very different (and this was the primary case of counsel for the council). The land in Beresford was not acquired for any particular purpose, nor appropriated to particular or specific use, [192] whereas in Barkas itself the land had been specifically provided for recreation.

But it was nevertheless thought appropriate to depart from Beresford. Lord Neuberger's speech is revealing for his recognition that he was initially thought it better not expressly to depart from Beresford because it was unnecessary to do so for the purposes of deciding Barkas, and that it would be better merely to express 'considerable concerns' about the decision. [193] That alternative approach might have borne similarity with the way in which Barry was treated in KM. However, influenced by Lord Carnwath's concurring opinion, Lord Neuberger was:

satisfied that this would be unnecessarily cautious. I am quite satisfied that we should grasp the nettle and say that the decision and reasoning in Beresford should no longer be relied on, rather than leaving the law in a state of uncertainty, and requiring money and time to be expended on yet further proceedings.

Lord Neuberger went so far as to say that he was 'mystified' by some of the reasoning in Beresford. [194] The decision mischaracterised the facts, by allocating the land for public use indefinitely: the use by the public could therefore only have been 'by right'. There was also insufficient attention paid to the relevant statutory provisions. [195]

As well as being the first decision to depart from a House of Lords authority, Barkas is significant for present purposes for four reasons. First, the Court chose not to take the easier route of distinguishing a case, which was 'on any view not without its difficulties', [196] even though the primary case of counsel was that the case should and could be distinguished. Second, having thus broadened the scope of its considerations, the Court did not explore the consequences of its decision, which is to narrow significantly the scope of the towns and village green legislation (since fewer instances of use of land by the public will qualify). [197] Third, it should be noted that only five Justices sat on the appeal, which may seem unusual as the Supreme Court's criteria for an enlarged panel of seven or nine Justices [198] expressly refer to the possible of departing from previous decisions as a factor. [199] We shall see that seven Justices sat in our next two cases. Finally, although in some ways the decision is a bold one, the language of disapproval of Beresford is not the language of departure. Rather it was 'wrongly decided' [200] and 'should no longer be relied on'. [201]

8. FHR European Ventures

The question of if, and in what circumstances, proprietary remedies may be awarded in respect of breach of fiduciary duty has been engaged one of the most controversial debates in the law of trusts in recent years. Indeed, Pill LJ has recently said that the debate 'reveals passions of a force uncommon in the legal world'. [202] The debate centred on the Court of Appeal decision in Lister & Co v Stubbs, [203] which decided that there was no entitlement to a proprietary remedy in such cases and the Privy Council decision to the contrary in Attorney General for Hong Kong v Reid. [204] Understandably there was much uncertainty caused by the Privy Council expressly (and vehemently) disapproving a decision of the Court of Appeal from a century before. In FHR, the Supreme Court set out to determine the question as a matter of English Law.

The facts in FHR concerned a secret commission made relating to the sale of the Monte Carlo Grand Hotel. FHR was a vehicle for the purchase of the share capital of the Hotel, and Cedar acted as agent negotiating the purchase, thus owing fiduciary duties to the claimants. However, Cedar had also made an agreement with the vendors of the Hotel, pursuant to which they received €10m upon completion of the sale. The claimants sought to recover this secret commission as received in breach of fiduciary duty: on basic principles of fiduciary law, an agent is bound to account to his principal for moneys so received, by paying an equivalent sum in the form of equitable compensation. 'The agent's duty to account for the bribe or secret commission represents a personal remedy for the principal against the agent'. [205] The appeal turned on whether or not the claimants were entitled to a proprietary remedy in respect of the €10m, where the property was neither originally an asset of the principal nor the exploitation of an opportunity properly belonging to the principal. The Supreme Court dismissed the appeal, unanimously, confirming that where an opportunity is exploited, there is indeed a constructive trust in favour of the principal.

The decision in FHR European Ventures has, for the time being, resolved the issue in terms of what the law is, concluding that there should be proprietary remedies in appropriate circumstances. The points of law have been examined elsewhere. [206] The interesting issue for present purposes is the treatment of precedent, on a question to which, as Prof Watts has observed in a brilliant recent article, [207] 'there is no ineluctable right answer'. [208]

One peculiarity of the decision in FHR is that the same criticisms are levelled at the no camp as Lord Neuberger had directed at the yes camp (especially Lord Templeman in Reid) in Sinclair. Thus we see the charge against their Lordships in Tyrell that 'no previous decision was referred to in the opinions, and, although the opinions were expressed with a confidence familiar to those who read 19th century judgments, they contained no reasoning, merely assertion.' [209] We may compare that quotation with the Lord Neuberger MR's assessment of Reid in Sinclair:

'Secondly, much of the reasoning of Lord Templeman [in Reid] seems to me to beg the question, or to assume what it asserts (although I suppose that the same can be said about the views expressed in the Heiron… and Lister… cases). Thus before setting out to explain his reasoning, Lord Templeman asserts … that a bribe paid to a "false fiduciary" vests in him and he must pay and account for it to "the person to whom [the] duty is owed". But that is the very issue he then purports to decide.' [210]

Yet, why is that the 'asserting rather than reasoning' in Heiron and Lister was now somehow worse that demonstrated in Reid? It is not full explained in the FHR judgment. My argument is not that Lord Neuberger should be regarded as having any special prerogative over his own previous judgments, [211] and of course his Lordship was speaking for the Court as a whole, but one might have expected some advertence to the fact that his Lordship had previously spoken so strongly to the contrary, rather than avoiding the point. That is especially so when Lord Neuberger goes on to point out, without any irony, that in 'all the judges in Lister and Heiron had given earlier judgments which were inconsistent with their reasoning in the later ones.' [212] Similarly, Lord Neuberger placed weight on the preference which a proprietary remedy would give to the principal in the event of the agent's insolvency, a factor which had indicated judgment the other way in Sinclair. [213]

Another issue raised by FHR concerned the circumstances in which the Court of Appeal may follow a Privy Council decision in preference to one of its own decisions, or in preference to one from the Supreme Court or House of Lords, is currently a matter of controversy. [214] One view is that the Court of Appeal should exceptionally be prepared to do so where the appeal to the Supreme Court would be a 'foregone conclusion'. [215] In Sinclair, Lord Neuberger MR observed: 'Although it is possible that the Supreme Court would follow the Reid case rather than the Heiron and Lister cases, I am far from satisfied that they would do so. In any event it does not seem to me right to follow the Reid case.' [216]

In FHR, the Supreme Court let pass an opportunity pass to offer guidance to lower courts on this issue. It may be that the view that the answer was thought to be that there was a binding House of Lords authority which rendered the point moot. However, it is clearly a live question for the development of English law, [217] and it is one which it is peculiarly appropriate for the Supreme Court to address. It cannot be expected that the lower courts should always wait for the top court to consider the specific point of law as and when an appropriate case is pursued all the way to the Justices: there were nearly 150 years between Tyrrell andFHR. The point was expressly left open by Baroness Hale of Richmond in Re Spectrum Plus. [218] Instead, the only real engagement with the status of the Privy Council in FHR is in the context of comparative law and a general expression of the desirability of coherence in the common law. [219]

Even the conclusion of the need to depart from Tyrrell is somewhat equivocal. In addition to the absence of reference to the Practice Statement, Lord Neuberger uses the language of 'disapproval' rather than 'departure':

the many decisions and the practical and policy considerations which favour the wider application of the Rule and are discussed above justify our disapproving Tyrrell. In our judgment, therefore, the decision in Tyrrell should not stand in the way of the conclusion that the law took a wrong turn in Heiron and Lister, and that those decisions, and any subsequent decisions (Powell & Thomas,Attorney-General's Reference (No 1 of 1985) and Sinclair), at least in so far as they relied on or followed Heiron and Lister, should be treated as overruled.

As a result, Westlaw assesses the treatment of Tyrrell in FHR as 'Not followed', setting the case's status to 'Mixed or Mildly Negative Judicial Treatment'. [220] The case's Facebook relationship status with FHR would perhaps be 'It's Complicated'. This is the way a precedent ends: not with a bang but a whimper.

9. Montgomery v Lanarkshire

The most recent Supreme Court decision to depart from a House of Lords authority also does not mention the Practice Statement: Montgomery. Lords Kerr and Reed delivered a joint principal judgment, with a concurring 'footnote' [221] from Lady Hale. The Court was 'invited to depart from the decision of the House of Lords in Sidaway [222] and to re-consider the duty of a doctor towards a patient in relation to advice about treatment'. [223]

The pursuer sought damages on behalf of her son, who was born with severe disabilities resulting injuries from complications during his delivery. It was alleged that those injuries were caused by the negligence of a Dr McLellan, who delivered the baby and had also been the obstetrician and gynaecologist during Mrs Montgomery's pregnancy. Mrs Montgomery was just over five feet tall and suffered from diabetes. Babies born from diabetic mothers are likely to be larger than normal and the weight can be concentrated on such a baby's shoulders. There was a 9-10% risk that her baby would be born with shoulder dystocia during vaginal delivery, meaning that the baby's shoulders could not pass through the pelvis. Dr McLellan thought that the risk to the baby was small and also took the view that most women when told of such potential complications, would choose a caesarean, section, which the doctor did not think was advisable. The baby was born with severe disabilities arising from complications during delivery. The Supreme Court allowed the appeal and found that the doctor had been under a duty to advise the patient of the material risks: the doctor is not to make the decision for the patient. The Justices accepted the invitation to depart from Sidaway.

Any analysis of Sidaway is complicated because of the multiplicity of speeches. The claimant suffered severe disability as the result of an operation. That operation, howsoever performed carried an inherent risk of between 1-2% of damage to the spine and nerve roots. The claimant sued on the basis of an alleged negligent failure by the surgeon to advise her of this inherent risk in the operation. In the decision, four of their Lordships gave substantive speeches. Lords Diplock, Bridge (with whom Lord Keith of Kinkel agreed) and Lord Templeman held that there was no breach because the doctor's judgement was to be respected as it did fall foul of the Bolam test, which was whether the doctor's judgment was supported by a responsible body of medical opinion. [224] Lord Scarman disagreed as to the legal analysis, but concurred in the outcome:

I have tested the facts found by the trial judge by what I believe to be the correct legal criterion. In my view the appellant has failed to prove that Mr. Falconer was in breach of the duty of care which he owed to her in omitting to disclose the risk which the trial judge found as a fact he did not disclose to her. [225]

It is clear that the House was unanimous as to the basic point, identified by Lord Templeman 'I do not subscribe to the theory that the patient is entitled to know everything nor to the theory that the doctor is entitled to decide everything.' [226] But within that range is a spectrum of opinion, and the majority were in favour of an approach which placed greater weight on the judgment of the doctor than on the patient's right to know.

The departure from Sidaway was not portrayed as especially seismic by the Justices in Montgomery. The joint judgment took care to consider the individual judgments in the House of Lords and concluded that:

It would… be wrong to regard Sidaway as an unqualified endorsement of the application of the Bolam test to the giving of advice about treatment. Only Lord Diplock adopted that position. On his approach, the only situation, other than one covered by the Bolam test, in which a doctor would be under a duty to provide information to a patient would be in response to questioning by the patient. [227]

The joint judgment then moved on to consider, even when properly analysed, that the 'significance attached in Sidaway to a patient's failure to question the doctor is… profoundly unsatisfactory'. [228] Instead, Lord Kerr and Reed reformulated the approach, as follows:

An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. [229]

Thus, the Court has 'departed from Sidaway' in terms of deprecating the Sidaway majority view of the appropriate margin of judgement to be afforded to doctors, and the Justices prefer a minority view. [230] But the practical effect of the change may be less dramatic. That was because the judgments were understood to be confirming court practice in adopting the approach of Lord Woolf MR in Pearce v United Bristol Healthcare NHS Trust, [231] in interpreting Sidaway: his Lordship asked whether there was a significant risk which would affect the judgment of a reasonable patient. [232] The approach in Pearce was further found to be reinforced by the emphasis placed on patient autonomy and the right to give informed consent by the majority of the House of Lords in Chester v Afshar [233] (albeit that in the appeals to the Court of Appeal [234] and the House [235] there was no challenge to the trial judge's finding of a breach of duty).

The Supreme Court decision in Montgomery may therefore be understood as an example of judicial house-keeping in ensuring that principle reflects practice - perhaps, even, of the law having moved on? That is not of course to underestimate the significance of the decision as a strong reassertion at the highest level of the importance of patient autonomy. [236] But it may not change matters that much in practice.

10. Conclusions

'Overt exercises of the power to depart from their own precedents are fewer than those that go under the radar.' [237]

When objects do fly under the radar, they may nevertheless be seen clearly from the ground. In the light of this survey, how do we assess the current attitude to precedent in the Supreme Court? Two of the decisions discussed here involved keeping up with the Joneses: [238] I have argued that the Justices' fidelity to precedent should not merely be a matter of keeping up appearances. When a decision is to be departed from, it should be done clearly and deliberately, with an appreciation of the consequences. We have not seen a consistent approach in the decisions examined here.

I have also suggested that the ability to depart from previous decisions, as recognised by the House of Lords in the Practice Statement and now adopted by the Supreme Court, may have had a paradoxical effect on judicial decision-making in our highest court. The conclusion is that the Court, because it can depart from its own decisions when it is thought 'right', has not always been clear about whether and when it is actually doing so. In the first cases of unequivocal departure, Barkas, FHR and Montgomery, the Practice Statement was not mentioned, nor the approach to stare decisis more broadly.

Particularly concerning is the 'moving on' approach. In Yemshaw v London Borough of Hounslow, [239] Lady Hale led the Court [240] in holding that the meaning of 'violence' in the context of 'domestic violence' [241] had 'moved on' from a narrow understanding based on physical contact:

'Violence' is a word very similar to the word 'family'. It is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time. [242]

This doctrine of a statutory meaning 'moving on' in this way is not uncontroversial, [243] but it certainly cannot be applied to a 'dynamic' interpretation of precedent in a coherent fashion. In the human rights case of Nicklinson, Lord Hughes, in the minority as to whether it was appropriate for the Court to entertain a human rights challenge at all, noted that the 1961 Act may have been from 'fifty years ago, but, even if the law knew a concept of statutory obsolescence, as it does not, this statute was deliberately re-enacted in 2009.' [244] Equally, the common law does not, and should not, know a concept of 'case-law obsolescence'.

As we have seen, Paterson's work reveals that these cases involve struggles over precedent may give rise to lingering tensions amongst the Justices. Furthermore, there seem to be differences as to precedential reasoning from Justice to Justice and from case to case. [245] In particular, it is difficult to avoid the inference - or perhaps imputation - that a change is deemed judicially appropriate when the judge agrees with the substantive result, but should be left to Parliament when the particular judge disagrees with the proposed change. [246]

'Fides et Ratio' - faith and reason - was the title of an encyclical by Pope John Paul II. [247] In a recent lecture on comparative law, Lord Toulson pointed to Pope Gregory's advice to St Augustine to select whatever customs were the most devout. [248] A more apposite Papal example comes from Lord Rodger, the late Supreme Court Justice, who observed that some problems will always arise with the doctrine of precedent:

because, even in the highest courts, judges will change their minds from time to time. This is nothing to be ashamed of: indeed there is divine precedent for it. As Pope Innocent III remarked in 1215, in a decree issued during the Fourth Lateran Council changing the rules on the impediments to marriage by reason of affinity, 'in the New Testament even God himself made some changes to what he had laid down in the Old'. [249]

The issue concerns how judges approach and explain their decisions to make changes; for it is important to take precedent seriously. Yet, at times in the seven key cases considered above, the Supreme Court seems to be almost directly indirect about the approach to precedent.

On his appointment as President of the Supreme Court, Lord Neuberger indicated his belief that Justices should 'work diligently to apply and develop the law in a coherent, principled and practical way'. [250] That phrase clearly echoes the Practice Statement's affirmation of precedent as an 'indispensable foundation… for [the] orderly development of legal rules'. The current Supreme Court's preference for indirect methods of dealing with authorities poses a direct challenge to that commitment.