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Precedent within the High Court
Published online by Cambridge University Press: 11 May 2020
Abstract
A number of Masters and a Registrar have recently indicated that, when exercising High Court jurisdiction, they are not bound strictly to follow prior decisions made by Judges in the High Court. This represents a notable departure from the position established by and within the High Court, where since the Judicature Acts of 1873 and 1875 an unquestioning obeisance of the Master and Registrar towards such decisions has been generally expected and offered. Delving into questions of power, authority and jurisdiction, and examining relevant legislation such as the Civil Procedure Rules, this paper constructs and analyses various arguments for and against recognising the co-equivalence of decisions of Judges, Masters and Registrars in the High Court.
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- Copyright © The Society of Legal Scholars 2020
Footnotes
†
I am grateful to Professor Goh Yihan and the anonymous reviewers for their comments which improved this paper. All errors are solely mine.
References
1 The present debate at least does not centre around lucre, tenure or judicial independence. Interesting issues relating thereto were recently canvassed in Australia and Canada; see Austin v Commonwealth of Australia (2003) 215 CLR 185; Masters’ Association of Ontario v Ontario (2011) 105 OR (3d) 196.
2 MacCormick, DN and Summers, RS ‘Further general reflections and conclusions’ in MacCormick, DN and Summers, RS (eds) Interpreting Precedents (Aldershot: Ashgate, 1997) p 548Google Scholar.
3 Although the High Court is presently operating with less than that number of puisne Judges.
4 Chancery Guide 2016 (London: HMSO, 2016) paras 15.1–15.27Google Scholar; The Queen's Bench Guide 2018 (London: Judiciary of England and Wales, 2018) para 9.1.1Google Scholar.
5 Abdule v Foreign and Commonwealth Office [2018] EWHC 692 (QB) at [72]–[80]. Two of her predecessors had earlier expounded on the office as well (see Diamond, AS ‘The Queen's Bench Master’ (1960) 76 LQR 504Google Scholar; Jacob, IH ‘The Masters of the Queen's Bench Division’ (1972) 25 King's Counsel 6Google Scholar; Jacob, IH ‘The duties of a Master of the Queen's Bench Division’ (1979) 45 Arbitration 26Google Scholar). See generally also Silberman, LJ ‘Masters and magistrates part I: the English model’ (1975) 50 NYU L Rev 1070Google Scholar; Silberman, LJ ‘Masters and magistrates part II: the American analogue’ (1975) 50 NYU L Rev 1297Google Scholar.
6 It has been described that, before 1837, other court officials like clerks and prothonotaries did much of the work that would be performed by the common law Masters newly arrived on the scene: Bentham, RW and Bennett, JM ‘The office of prothonotary’ (1959) 3 Syd L Rev 47 at 53–54Google Scholar.
7 For some historical and comparative accounts see Lui Tao v Shu Yao Lee [1950] VLR 488 at 493–499; Pain, WP ‘Masters in the Chancery Division of the High Court’ (1897) 22 Law Magazine and Law Review (4th Series) 169Google Scholar; Fox, JC ‘The chief clerks in Chancery and their predecessors’ (1913) 29 LQR 418Google Scholar; Bellew, HE ‘Masters in equity suits’ (1925) 5 Boston U L Rev 221Google Scholar; Ginsburg, B ‘Masters in Chancery in Massachusetts’ (1926) 6 Boston U L Rev 172Google Scholar; Carne, WL ‘A sketch of the history of the High Court of Chancery from its origin to the Chancellorship of Wolsey’ (1927) 15 Georgetown LJ 426 at 454–458Google Scholar; Carey, HF et al. ‘Masters in Chancery’ (1933) 5 Illinois L Rev 476Google Scholar; ‘Masters in the Chancery Division’ (1933) 77 SJ 37; ‘The office of Master’ (1937) 81 SJ 225; Berzon, M ‘Masters in Chancery’ (1939) 8 Law Society Journal 616Google Scholar; ‘Extinct officials’ (1940) 189 LT 178; ‘Chamber procedure: ancient and modern’ (1944) 94 LJ 229; Strichartz, R ‘Masters and their fees’ (1949) 3 Miami Law Quarterly 403Google Scholar; Bryant, JR ‘The office of Master in Chancery: early English development’ (1954) 40 American Bar Association Journal 498Google Scholar; Bryant, JR ‘The office of Master in Chancery: colonial development’ (1954) 40 American Bar Association Journal 595Google Scholar; Bryant, JR ‘The office of Master in Chancery– development and use in Illinois’ (1954) 49 Nw U L Rev 458Google Scholar; Report of the Committee on Chancery Chambers and the Chancery Registrars’ Office (Cmnd 967) (London: HMSO, 1960) paras 5–25Google Scholar; Ball, RE ‘The Chancery Master’ (1961) 77 LQR 331Google Scholar; Bentham, RW and Bennett, JM ‘The development of the office of Master in equity in New South Wales’ (1961) 5 Syd L Rev 504Google Scholar; Brettingham-Moore, CG ‘The office of Master’ (1963) 1 U Tasmania L Rev 842Google Scholar; Jacobs, CPProceedings in the Master's Office (Melbourne: Law Book Co, 1969) pp 1–10Google Scholar; Irish Committee on Court Practice and Procedure The Jurisdiction of the Master of the High Court (Sixteenth Interim Report; Prl 2350) (Dublin: Stationery Office, 1972); Greaney, JM ‘Trials before Masters: a procedural and substantive primer for the practicing lawyer’ (1978) 63 Massachusetts L Rev 195Google Scholar; O'Dea, PG ‘The role of the Registrar in Hong Kong’ (1979) 5 New Zealand Recent Law 155Google Scholar; Lee, WC ‘The role of Masters in Supreme Court practice’ (1981) 11 Queensland Law Society Journal 115Google Scholar; Levine, DI ‘Calculating fees of Special Masters’ (1985) 37 Hastings LJ 141Google Scholar; Condon, LE ‘South Carolina's Master in equity: a modern solution to an old problem’ (1991) 30(2) Judges’ Journal 32Google Scholar.
8 See generally McMahon, PI ‘Field, fusion and the 1850s’ in Turner, PG (ed) Equity and Administration (Cambridge: Cambridge University Press, 2016)Google Scholar.
9 Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66), s 77. This Act also merged the courts of common law and equity.
10 15 & 16 Geo 5 c 49.
11 1981 c 54. Now retitled the Senior Courts Act 1981.
12 Heward, EMasters in Ordinary (Chichester: Barry Rose, 1990) pp 68–73Google Scholar.
13 Re Scharrer, ex p Tilly (1888) 20 QBD 518 at 519.
14 Re Sanders’ Settlement [1896] 1 Ch 480 at 486.
15 44 & 45 Vict c 44.
16 Ball, RE ‘The Chancery Master’ (1961) 77 LQR 331 at 345Google Scholar.
17 [1967] P 167 at 179 (Registrar bound by decision of Phillimore J).
18 [1995] BCC 774 at 775 (Registrar accepting binding effect of judgment of Milmo J).
19 [2007] EWHC 788 (Ch), [2007] 1 WLR 2002 at [9] (Master's reasons not binding on HHJ Mackie QC, sitting in the High Court).
20 [1984] Ch 266 at 270.
21 [2009] EWHC 198 (QB) at [12], [14] and [18].
22 [2014] EWHC 3134 (Ch), [2015] WTLR 99.
23 At [82].
24 Randall v Randall [2016] EWCA Civ 494, [2017] Ch 77.
25 [2016] EWHC 874 (Ch).
26 At [43].
27 At [45].
28 At [51].
29 Aabar Block SARL v Maud [2016] EWHC 1016 (Ch), [2016] BPIR 803 at [73].
30 Lokhova v Longmuir [2016] EWHC 1977 (QB) at [8].
31 Lifestyle Equities CV v Sportsdirect.com Retail Ltd [2016] EWHC 2092 (Ch), [2017] FSR 12 at [9]. In Banks v Turner (unreported 20 February 2018, High Court), HHJ Klein viewed Master Clark's citation of Coral Reef to be an apparent indication by the Master that she was able to depart from a High Court Judge's decision.
32 Aabar Block SARL v Maud [2016] EWHC 2175 (Ch), [2016] Bus LR 1243.
33 Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 3844 (Ch), [2018] 4 WLR 104.
34 [2016] EWHC 3311 (Ch), [2018] WTLR 445 at [49].
35 In Jones v Chichester Harbour Conservancy [2017] EWHC 2270 (QB) at [29].
36 In Kennedy v National Trust for Scotland [2017] EWHC 3368 (QB), [2018] EMLR 13 at [29]. This decision was upheld on appeal without any discussion of the issue of precedent; see Kennedy v National Trust for Scotland [2019] EWCA Civ 648, [2019] EMLR 19.
37 Abdule v Foreign and Commonwealth Office [2018] EWHC 692 (QB) at [82]; JLE v Warrington & Halton Hospitals NHS Foundation Trust [2018] EWHC B18 (Costs) at [23] (an appeal against this decision was allowed but without discussion of the issue of precedent; see JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust [2019] EWHC 1582 (QB), [2019] Costs LR 829).
38 At [2018] 4 WLR 104.
39 In the later instalment of Coral Reef Ltd v Silverbond Enterprises Ltd [2019] EWHC 887 (Ch), Deputy Master Linwood did not mention the precedent issue at all. As for academic commentary, that has been relatively sparse. Master Matthews’ first instance decision in Coral Reef has not generally elicited an adverse treatment, although this was mostly before Mr Foxton's judgment was formally reported (see Pickford, S and Yip, V ‘A firm foundation?’ (2016) 166 NLJ 16 at 17Google Scholar; Sorabji, J ‘Precedent and the Privy Council’ (2017) 36 CJQ 265 at 269Google Scholar; J Bickford Smith ‘Precedent and procedure: a practical view from the bar’ (available at www.littletonchambers.com/precedent-and-procedure-a-practical-view-from-the-bar-952 (on archive)); contra Vos, G (ed) Civil Procedure: The White Book Service 2019 (London: Sweet & Maxwell, 2019) para 2.4.3Google Scholar).
40 R v Greater Manchester Coroner, ex p Tal [1985] QB 67 at 81.
41 Colchester Estates (Cardiff) v Carlton Industries plc [1986] Ch 80 at 85; Bishopsgate Investment Management Ltd v Maxwell [1993] Ch 1 at 14; In re Lune Metal Products Ltd [2006] EWCA Civ 1720, [2007] Bus LR 589 at [9]–[10]; Howard de Walden Estates Ltd v Aggio [2007] EWCA Civ 499, [2008] Ch 26 at [90].
42 Duxbury, NThe Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008) p 183CrossRefGoogle Scholar.
43 [1992] BCC 150 at 155.
44 Re Cromptons Leisure Machines Ltd [2006] EWHC 3583 (Ch), [2007] BCC 214 at [5]. Nevertheless it is recognised that the same expense will possibly be incurred should the losing party challenge the decision in a higher court.
45 Osborne to Rowlett (1880) 13 Ch D 774 at 785 (emphasis added).
46 By way of comparison, in some civil law systems where trial courts may reopen apparently settled points of law, it has been observed that this ‘historically understandable stress on the need for every judge and court to exercise independent judgment rather than risk injustice under a kind of “cloak of superior orders” may in some settings lead to confusion, if literally dozens of precedents can be cited for the same point’: MacCormick and Summers, above n 2, pp 538–539.
47 Bell, J ‘Comparing precedent’ (1997) 82 Cornell L Rev 1243 at 1262Google Scholar (emphasis added). See also Flowers, R ‘Stare decisis in courts of co-ordinate jurisdiction’ (1985) 5 Advocates’ Quarterly 464 at 481 and 485–486Google Scholar.
48 See also Z Bankowski et al ‘Rationales for precedent’ in MacCormick and Summers (eds), above n 2, p 492.
49 Randall v Randall [2014] EWHC 3134 (Ch), [2015] WTLR 99 at [82]; Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 874 (Ch) at [43].
50 Notably, two detailed treatments in this field provide no coverage of the Master's plight: see Cross, R and Harris, JWPrecedent in English Law (Oxford: Clarendon Press, 4th edn, 1991); Duxbury, above n 42Google Scholar.
51 1981 c 54.
52 Civil Procedure Act 1997 (c 12) sch 1, para 2.
53 Emphasis added. Compare this with r 2.5(1) of the Family Procedure Rules, which uses the phrase ‘perform any function’ (emphasis added). Note further that Registrars in Bankruptcy are covered by a third linguistic formula in the Insolvency (England and Wales) Rules 2016, SI 2016/1024, r 12.2(1). And the Admiralty Registrar has all the powers of the Admiralty Judge except where a rule or practice direction provides otherwise: CPR 61.1(4) (see generally also JA Kimbell ‘The Admiralty Registrar: past, present and future’ [2018] LMCLQ 413).
54 Practice directions are generally made by the Lord Chief Justice or a nominated judicial office holder and with the agreement of the Lord Chancellor (Constitutional Reform Act 2005 (c 4), s 13 read with sch 2; Civil Procedure Act 1997 (c 12), s 5).
55 1998 c 42.
56 CPR PD 2B, paras 7A and 7B.1(b).
57 There is uncertainty here also because inherent jurisdiction may mean different things to different people (see eg Jacob, IH ‘The inherent jurisdiction of the court’ (1970) 23 CLP 23 at 24Google Scholar), but the argument from legislative interpretation would, at its narrowest, be to preclude the Masters’ exercise of any non-statutorily derived jurisdiction or power. For cases considering the historical Canadian position see eg Attorney-General for Ontario v Victoria Medical Building Ltd [1960] SCR 32 at 43; O'Connor v Mitzvah (1977) 15 OR (2d) 812 at 815; Re Peel Terminal Warehouses Ltd (1978) 21 OR (2d) 857 at 861; Matsushita Electric of Canada Ltd v Wacky Webster (London) Ltd (1983) 42 OR (2d) 795 at 800; Cooke v Cooke (1985) 53 OR (2d) 43 at 47; Bonaventure Systems Inc v Royal Bank of Canada (1986) 57 OR (2d) 270 at 274. In the Antipodes see eg Exell v Exell [1984] VR 1 at 4–6; Re Roslea Path Ltd [2013] 1 NZLR 207 at [162]–[163]; P Twist ‘The inherent jurisdiction of masters’ [1996] NZLJ 351.
58 In related vein, see Dring v Cape Intermediate Holdings Ltd [2018] EWCA Civ 1795, [2019] 1 WLR 479 at [142]–[147].
59 CPR PD 2B, para 6.1.
60 CPR PD 52A, paras 3.5, 4.3 and 4.3A; Access to Justice Act 1999 (Destination of Appeals) Order 2016, SI 2016/917, Art 4(1); Insolvency Act 1986, s 375(2); Insolvency (England and Wales) Rules 2016, SI 2016/1024, r 12.59(2)(b); Practice Direction – Insolvency Proceedings, paras 17.2(5) and 17.4(9).
61 CPR PD 52A, para 4.7.
62 Access to Justice Act 1999, s 55(1); CPR PD 52C, para 5A.
63 H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 at 699.
64 Re Rolls Razor Ltd (No 2) [1970] Ch 576 at 589.
65 Tidswell v Tidswell (No 2) [1958] VR 601 at 605; Sansom v Sansom [1966] P 52 at 53; Commonwealth of Australia v Hospital Contribution Fund of Australia (1982) 40 ALR 673 at 684; Tan Boon Heng v Lau Pang Cheng David [2013] 4 SLR 718 at [14].
66 Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] 2 SLR(R) 685 at [11].
67 Actis Excalibur Ltd v KS Distribution Pte Ltd [2016] SGHCR 11 at [18].
68 [1937] AC 473 at 478. See also Herring CJ's explanation in Tidswell v Tidswell (No 2) [1958] VR 601 at 605, which is interesting for perceiving the matter from the litigant's viewpoint, as well as the conceptualisation of the separation in terms of stages by Chan Sek Keong J (latterly Chief Justice of Singapore) when discussing the local District Court equivalent of an appeal from Master to Judge in Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] 2 SLR(R) 685 at [11]. See also Re Rolls Razor Ltd (No 2) [1970] Ch 576 at 590–591.
69 Herbs and Spices Trading Post Pte Ltd v Deo Silver (Pte) Ltd [1990] 2 SLR(R) 685 at [11].
70 Re Tasbian Ltd (No 2) [1990] BCC 322 at 325.
71 Incidentally this type of development seemed to have been predicted by Master Ball almost 60 years ago: RE Ball ‘The Chancery Master’ (1961) 77 LQR 331 at 354–355.
72 Woolf, HAccess to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HMSO, 1995)Google Scholar; Woolf, HAccess to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HMSO, 1996)Google Scholar.
73 Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 470–471; Gilchrist v Revenue and Customs Commissioners [2014] UKUT 169 (TCC), [2015] Ch 183 at [87]; RWM Dias ‘Precedents in the House of Lords – a much needed reform’ [1966] CLJ 153 at 154; PJ Evans ‘The status of rules of precedent’ [1982] CLJ 162 at 177–178; J Bell ‘Sources of law’ [2018] CLJ 40 at 67.
74 At the peril of stating the obvious, a decision of a Master made in exercise of the High Court's jurisdiction is not necessarily equivalent to a decision of a High Court Judge for every other purpose, including of course the usual route of an appeal therefrom: the Master's decision is ordinarily appealable to a Judge, rather than to the Court of Appeal (as would have been the case were the first instance decision made by a Judge). For a perspective from New South Wales see Tomko v Palasty (No 2) (2007) 21 NSWLR 61 at [4] and [40].
75 Encompassing for this purpose the tribunals system, in which I consider for example the First-tier Tribunal and Upper Tribunal to be distinctly separate from each other.
76 Howard de Walden Estates Ltd v Aggio [2007] EWCA Civ 499, [2008] Ch 26. See Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 874 (Ch) at [40]–[43]; Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 3844 (Ch), [2018] 4 WLR 104 at [62].
77 [1985] QB 67.
78 [1947] KB 842.
79 R v Greater Manchester Coroner, ex p Tal [1985] QB 67 at 81.
80 As Professor Bronaugh stated, it is in the nature of binding precedents that they may control decisions without at the same time persuading, that is, convincing substantively: Bronaugh, R ‘Persuasive precedent’ in Goldstein, L (ed) Precedent in Law (Oxford: Clarendon Press, 1987) p 231Google Scholar.
81 It might perhaps be separately argued that costs and time would be much saved by loyal obeisance on the Master's part and by letting the parties take up the legal complexities on appeal. As has been observed, even Judges in the High Court, who are the resident happy larks, willingly fetter themselves by following the later of two conflicting first instance decisions if the second had considered the first (see text at n 41 above).
82 Or, for that matter, into the authorisation under the instruments and provisions referred to at n 53 above. Contrast this with the Ontario case of GTA Structural Steel Ltd v 20 Ashtonbee Holdings Ltd (2005) 49 CLR (3d) 157 at [21]–[22].
83 See also the Singapore case of Actis Excalibur Ltd v KS Distribution Pte Ltd [2016] SGHCR 11 at [18].
84 In Coral Reef the judge would of course have seen himself as defender and not attacker.
85 See Gallie v Lee [1969] 2 Ch 17 at 49; Davis v Johnson [1979] AC 264 at 344; R (Al-Saadoon) v Secretary of State for Defence [2009] EWCA Civ 7, [2010] QB 486 at [47]; Rickett, CEF ‘Precedent in the Court of Appeal’ (1980) 43 MLR 136 at 151CrossRefGoogle Scholar; Carty, H ‘Precedent and the Court of Appeal: Lord Denning's views explored’ (1981) 1 LS 68 at 75Google Scholar; Evans, above n 73, at 178; Aldridge, P ‘Precedent in the Court of Appeal – another view’ (1984) 47 MLR 187 at 196–198CrossRefGoogle Scholar (and for the latest changes in the Civil Division of the Court of Appeal see Actavis UK Ltd v Merck & Co Inc [2008] EWCA Civ 444, [2009] 1 WLR 1186 at [85]–[107]; Symbian Ltd v Comptroller General of Patents, Designs and Trade Marks [2008] EWCA Civ 1066, [2009] Bus LR 607 at [33]–[36]; Patel v Secretary of State for the Home Department [2012] EWCA Civ 741, [2013] 1 WLR 63 at [59]; R (DN (Rwanda)) v Secretary of State for the Home Department [2018] EWCA Civ 273, [2018] 3 WLR 490 at [40]–[41]). The apparent anomaly is the practice of the Criminal Division of the Court of Appeal, which seems capable of changing the content of its own rules of stare decisis even with High Court Judges in the quorum (see R v Newsome [1970] 2 QB 711 at 717; R v Simpson [2003] EWCA Crim 1499, [2004] QB 118 at [38]; R v Magro [2010] EWCA Crim 1575, [2011] QB 398 at [30]–[31]). A plausible explanation is that the doctrine of stare decisis does not apply with the same rigidity in the court's criminal jurisdiction as in its civil jurisdiction (R v Gould [1968] 2 QB 65 at 68–69; H Parker ‘The Lord Chief Justice on criminal appeals’ (1969) 46 Law Guardian 11 at 13). The more satisfactory one points simply to a possible judicial oversight that the earlier case of R v Taylor [1950] 2 KB 368, which had amended the rules of precedent and was relied upon for support in some of the later authorities, was actually decided by the Court of Criminal Appeal. It was unobjectionable there for puisne Judges to have sat to change a rule of precedent, since the Court of Criminal Appeal was by statute constituted partly by puisne Judges (Criminal Appeal Act 1907, s 1(1)). As the Court of Appeal (Criminal Division) is not so constituted, however, reliance on that authority in the later cases may have been misplaced. Note also that the transitional provision in the Criminal Appeal Act 1966, s 1(4) is worded in general terms and unenlightening on the issue of precedent.
86 (1995) 27 HLR 703 at 716.
87 (1997) 30 HLR 22 at 25.
88 Sed quaere Bristol & West Building Society v Trustee of the Property of Back [1998] 1 BCLC 485 at 488; In re SHB Realisations Ltd [2018] EWHC 402 (Ch), [2018] Bus LR 1173 at [47].
89 To quote the court in R v Hertsmere Borough Council, ex p Woolgar (1995) 27 HLR 703 at 716.
90 See also Re Calahurst Ltd (1989) 5 BCC 318 at 319.
91 Sands v Layne [2016] EWCA Civ 1159, [2017] 1 WLR 1782 at [63]. See also Re W & A Glaser Ltd [1994] BCC 199 at 206; Re Piccadilly Property Management Ltd [2000] BCC 44 at 55–56; dubitante Re S N Group plc [1993] BCC 808 at 810. Generally, however, the appeal, review or application for permission to appeal should be heard by a judge or judges more senior than the first instance judge; see eg Bailey v Dargue [2008] EWHC 2903 (Ch), [2009] BPIR 1 at [22]; M Briggs Civil Courts Structure Review: Interim Report (December 2015) para 9.17.
92 Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 874 (Ch) at [39].
93 Peter Low LLC v Higgins [2017] SGHCR 18 at [27].
94 South Side Woodwork (1979) Ltd v RC Contracting Ltd (1989) 95 AR 161 at 166–167. Master Funduk's concession that he was bound by the Judge's ruling was later noted (albeit without comment) by the Alberta Court of Appeal in Re Electric Furnace Products Co Ltd (1991) 80 DLR (4th) 572 at 576.
95 In Alberta (Sucker Creek First Nation v Canada 2012 ABQB 460 at [17]; CIBC Mortgages Inc v Tuchsen (2015) 24 CBR (6th) 303 at [36]–[37]; Crossroads-DMD Mortgage Investment Corporation v Gauthier (2015) 28 Alta LR (6th) 104 at [34]–[35]), British Columbia (Chandi v Atwell 2011 BCSC 1498 at [72]; Franzman v Munro 2013 BCSC 1758 at [31]; Gill v Wal-Mart Canada Corporation 2017 BCSC 135 at [32]) and Ontario (Robinson v Northmount School for Boys 2013 ONSC 1028 at [25] and [27], and on appeal 2014 ONSC 2603 at [27]; RSG Mechanical Inc v 1398796 Ontario Inc (2014) 38 CLR (4th) 236 at [36]–[37]; Sukhu v Bascombe (2018) 80 CCLI (5th) 250 at [26]). An older study of the jurisdiction of the Canadian Masters can be found in B Fisher ‘Jurisdiction of the Master’ (1990) 48 The Advocate 13 at 16–17.
96 Director of Civil Forfeiture v Ngo 2011 BCSC 1191 at [10].
97 In Bentine v Bentine [2013] EWHC 3098 (Ch), [2013] 6 Costs LR 934 at [38], Proudman J believed (and it is fair to say that she would hardly be alone here) that a puisne Judge should always start from the proposition that the Court of Appeal was more likely to be right, and that it would be a brave judge who ventured to suggest that a Court of Appeal judgment was decided per incuriam.
98 Ex parte Vicar of St Mary, Wigton (1881) 18 Ch D 646 at 648. See also Anderson v Bank of British Columbia (1876) 2 Ch D 644 at 651; Henty v Wrey (1882) 21 Ch D 332 at 346–348; Winder, WHD ‘Precedent in equity’ (1941) 57 LQR 245 at 263–268Google Scholar; Burns, FR ‘The court of Chancery in the 19th century: a paradox of decline and expansion’ (2001) 21 U Queensland LJ 198 at 206–210Google Scholar.
99 Ram, J and Townshend, JThe Science of Legal Judgment (New York: Baker Voorhis, 2nd edn, 1871) pp 299–308Google Scholar.
100 As one realises today simply by asking the question, how many do not use electronic databases when hunting for authority or exposition on a point of law?
101 In Sansom v Sansom [1966] P 52 at 54, Sir Jocelyn Simon P (as he then was) observed that Registrars in the Probate, Divorce and Admiralty Division saw many more alimony cases than did Judges and had developed a sort of sixth sense in dealing with them (see also Rosling King v Rothschild Trust [2002] EWHC 1346 (Ch), [2005] 2 Costs LR 165 at [8]). Master Matthews also did not overstate matters when he said that all High Court Masters were experts in matters of procedure and their considered decisions on particular points were no less valuable than decisions of the Judges (Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 874 (Ch) at [45]; see also Randall v Randall [2014] EWHC 3134 (Ch), [2015] WTLR 99 at [82]; Jacob, IHThe Fabric of English Civil Justice (London: Stevens & Sons, 1987) pp 111–112Google Scholar; and in Ontario, see Sandler, DH ‘Preparing for and conducting a Master's motion’ (1983) 4 Advocates’ Quarterly 159 at 175Google Scholar).
102 In their treatise The Science of Legal Judgment (New York: Baker Voorhis, 2nd edn, 1871) pp 299, 307 and 308Google Scholar, J Ram and J Townshend surveyed the authorities and opined only that a name ‘often augments the authority of a judgment, or opinion’; that a judge's particular quality or character may lead a judgment or opinion to ‘derive a peculiar weight’; that ‘the authority of a case may, moreover, be strengthened’; and that the case bear ‘augmented weight’, due to the learning of the judge or court. While the doctrine of stare decisis as we know it developed into full bloom only later, it is striking that Ram and Townshend were observing at the time how the courts were identifying and differentiating the appropriate weight to be placed on some judgments but not others.
103 Cassell & Co Ltd v Broome [1972] AC 1027 at 1054 and 1131. See also Bradley Phillips Pty Ltd v Burn Brite Lights (Vic) Pty Ltd [2002] SASC 145 at [20] (applying Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166). There is another more generalised aspect of loyalty, that being loyalty to the rule of law, which Professor Waldron has mooted (J Waldron ‘Stare Decisis and the Rule of Law’ (2012) 111 Mich L Rev 1). Judges having to base their decisions on general norms and not leave them as freestanding particulars, he suggests that subsequent judges should then take note of the general norms that have been used, and play their part in establishing the norm as something whose generality is more than merely notional (eg by not distinguishing on flimsy grounds), all whilst maintaining the constancy and stability of the body of law that emerged from all this by not overturning precedents lightly or too often.
104 Crusader language was famously introduced into the lexicon by Lord Diplock in Davis v Johnson [1979] AC 264 at 325.
105 Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 3844 (Ch), [2018] 4 WLR 104 at [61]. Much the same argument has been propounded (but with differing outcomes) in Singapore and Queensland (see, in Singapore, Peter Low LLC v Higgins [2017] SGHCR 18 at [27], and in Queensland, Lee, WC ‘The role of Masters in Supreme Court practice’ (1981) 11 Queensland Law Society Journal 115 at 123Google Scholar). And Simon Salzedo QC has written that ‘it is at least arguable that a rational system of stare decisis requires that the appellate relationship is a sufficient condition for binding effect’ (emphasis in original): S Salzedo ‘New precedent on precedent’ (available at www.linkedin.com/pulse/new-precedent-simon-salzedo-qc).
106 See also Evans, above n 73, at 169, fn 20.
107 Another instance of binding authority and the route of appeal not being invariably linked is how Divisional Courts exercising criminal jurisdiction are generally thought to be bound by Court of Appeal (Criminal Division) judgments, even though it is to the Supreme Court that an appeal from the Divisional Court lies, with leave, under the Administration of Justice Act 1960, s 1 (see eg C v Director of Public Prosecutions [1996] AC 1 at 12–13; Morgans v Director of Public Prosecutions [1999] 1 WLR 968 at 979; Cross and Harris, above n 50, p 121; Morgan, P ‘Doublethink and district judges: High Court precedent in the county court’ (2012) 32 LS 421 at 427Google Scholar).
108 Morgan, above n 107.
109 JLE v Warrington & Halton Hospitals NHS Foundation Trust [2018] EWHC B18 (Costs) at [23].
110 Rogers v Essex County Council [1985] 1 WLR 700 at 706; Ritz Video Film Hire Ltd v Tyneside Metropolitan Borough Council (unreported 26 January 1995, Divisional Court).
111 See also Jackson, P ‘The Divisional Court: the survival of binding precedent’ (1985) 101 LQR 484Google Scholar.
112 Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 3844 (Ch), [2018] 4 WLR 104 at [62].
113 Morgan, above n 107, at 426–427.
114 This argument might conceivably have applied in respect of the Masters since they were also affected by the track system, but the matter is now largely moot following the streamlining of the appeal avenues, pursuant to the Civil Procedure (Amendment No 3) Rules 2016, SI 2016/788; Access to Justice Act 1999 (Destination of Appeals) Order 2016, SI 2016/917; CPR Practice Direction Amendments (86th Update). For relevant background provided by Briggs LJ (as he then was), see his Civil Courts Structure Review: Interim Report (December 2015) paras 3.30–3.33; Civil Courts Structure Review: Final Report (July 2016) paras 3.22–3.23.
115 First appeals from the County Court to the Court of Appeal are now restricted to the circumstances set out in CPR 52.23(1) and the Access to Justice Act 1999, s 57.
116 [2017] SGHCR 18.
117 At [29].
118 Because the Insolvency Act 1986 and its subsidiary rules have been construed to render an appeal therefrom a true appeal, with the Registrar's decision reversible by a Judge only if the Registrar had erred in principle or in law when applying or exercising a discretion; see Re Industrial & Commercial Securities plc (1989) 5 BCC 320 at 323; Re Gilmartin [1989] 1 WLR 513 at 515–516; Re Probe Data Systems Ltd (No 3) [1991] BCC 428 at 431; Re A Debtor (No 2389 of 1989) [1991] Ch 326 at 336–337; Re Busytoday Ltd [1992] 1 WLR 683 at 688.
119 Because the standard of review of such a decision was broadly similar whether before or after the introduction of the CPR. Under the old RSC Ord 58 r 2, an appeal from a Master's decision made at trial or on an assessment of damages would proceed with leave directly to the Court of Appeal. In an appeal against an assessment, for instance, interference with the exercise of discretion was warranted only if the damages had been assessed on a wholly erroneous basis (see eg Fielding v Variety Incorporated [1967] 2 QB 841 at 851 and 853, applying Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601). The other grounds for interference stated in Davies (at 617) would presumably have been applicable too, such as where the court below had acted on a wrong principle of law or misapprehended the facts. For the standard of review in the Court of Appeal after the CPR was introduced in 1998 (but before the latest 2016 amendments streamlining the appeal routes, mentioned at n 114 above), see Gorne v Scales [2006] EWCA Civ 311 at [56]; Earlrose Golf and Leisure Ltd v Fair Acre Investments Ltd [2009] EWCA Civ 1295 at [35].
120 Evans v Bartlam [1937] AC 473 at 478. Megarry J (as he then was) described the position as having once been even more dismissive as regards the review of a Chancery Master's decision (Re Rolls Razor Ltd (No 2) [1970] Ch 576 at 589–590); see also Report of the Committee on Chancery Chambers and the Chancery Registrars’ Office (Cmnd 967) (London: HMSO, 1960) para 85.
121 CPR 52.21(3).
122 [2000] 1 WLR 1311 at [31] and [50].
123 Lewis v Secretary of State for Trade and Industry [2003] BCC 567 at 569; EI Dupont de Nemours & Co v ST Dupont [2003] EWCA Civ 1368, [2006] 1 WLR 2793 at [96].
124 A Master's first instance decision has to be accorded an appropriate respect (Dalton v Gough Cooper & Co Ltd [2014] EWHC 1556 (QB) at [50]; see also McCarthy v Essex Rivers Healthcare NHS Trust [2010] 1 Costs LR 59 at [22]; and compare Hoddle v CCF Construction Ltd [1992] 2 All ER 550 at 550–551 with Sony Music Entertainment Inc v Prestige Records Ltd [2000] 2 Costs LR 186 at 192–193).
125 Although the lack of an instructional manual accompanying the textual change left some slightly bemused; see Jolowicz, JA ‘The new appeal: re-hearing or review or what?’ (2001) 20 CJQ 7Google Scholar.
126 Contrast this with some of the legislatively or judicially effected changes in other parts of the Commonwealth which specifically targeted appeals against decisions of Masters, Associate Judges and Prothonotaries (eg in the Australian Capital Territory (Courts Legislation Amendment Act 2015 (ACT) ss 44 and 47), New South Wales (Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 at 413–420) and Canada (Zeitoun v Economical Insurance Group (2008) 91 OR (3d) 131, and on appeal (2009) 96 OR (3d) 639; Hospira Healthcare Corp v Kennedy Institute of Rheumatology (2016) 402 DLR (4th) 497 at [46]–[65]; contra Ralph's Auto Supply (BC) Ltd v Ken Ransford Holdings Ltd 2011 BCCA 523 at [14]–[15]; Sidhu v Hothi 2014 BCCA 510 at [22]; Kondori v New Country Appliances Inc 2017 BCCA 164 at [18]–[19])).
127 Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 874 (Ch) at [48].
128 Coral Reef Ltd v Silverbond Enterprises Ltd [2016] EWHC 3844 (Ch), [2018] 4 WLR 104 at [66].
129 In an extra-curial essay, Sir Robert Megarry wrote that ‘Surely the law must be what the courts declare it to be, and not merely what the law reports decide to publish: a poor report, or no report at all, may make it difficult to discover what was said, and summary reports not prepared by barristers may have to be scrutinised with care, but a decision ought not to be rejected out of hand merely because there is no orthodox report of it’: Megarry, RE ‘Reporting the unreported’ (1954) 70 LQR 246 at 250Google Scholar.
130 Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 at [1]–[2]. See generally also Noble v Southern Railway Co [1940] AC 583 at 597; Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 2 AC 192 at 200–202; Hamblin v Field [2000] BPIR 621 at 627–628; A v B plc [2002] EWCA Civ 337, [2003] QB 195 at [8]–[10]; R v Erskine [2009] EWCA Crim 1425, [2010] 1 WLR 183 at [63]–[81]; Lightman, G ‘The civil justice system and legal profession – the challenges ahead’ (2003) 22 CJQ 235 at 239Google Scholar.
131 Practice Direction (Citation of Authorities) [2012] 1 WLR 780 at [10]; Criminal Practice Directions 2015, Division XII (General Application) paras D.3 and D.7.
132 The suggestion is nothing new but finds echo in Megarry, above n 129, at 251–252. Perhaps we may yet reap some benefit from all that technology.
133 cf Beach v Smirnov [2007] EWHC 3499 (QB) at [48], where a suggestion was rejected that a High Court decision appearing in the White Book held greater authority than other High Court decisions which did not.
134 Whether a higher court (eg the Court of Appeal) will feel able to intervene decisively in an intra-High Court dispute on precedent may be doubted by some; see eg Winder, WHD ‘Divisional Court precedents’ (1946) 9 MLR 257 at 267CrossRefGoogle Scholar (‘The question of the binding force of [Divisional Court decisions upon itself] when the Divisional Court is the final court of appeal … could not, in fact, ever come directly before the Court of Appeal’); Aldridge, above n 85, at 194 (‘It is also interesting to note that the issue whether the decision of one High Court judge sitting at first instance is binding upon another has never formed the basis of a determination by the Court of Appeal, and, it may confidently be predicted, never will’). See also Boys v Chaplin [1968] 2 QB 1 at 35; Gallie v Lee [1969] 2 Ch 17 at 49; Davis v Johnson [1979] AC 264 at 344; contra Davis v Johnson [1978] 2 WLR 182 at 224–225; In re Lune Metal Products Ltd [2006] EWCA Civ 1720, [2007] Bus LR 589 at [9]–[10].
135 cf L Tham ‘Stare decisis and ARs’ Singapore Law Gazette (January 2017).