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Published online by Cambridge University Press: 02 January 2018
This paper considers an often ignored topic in the English system of precedent, the role of High Court precedent in the county court. In doing so it reveals the many weaknesses of the existing approach to lower court precedent. It is argued that the High Court, (generally) a first instance tribunal, which does not bind itself and can come to contradictory decisions in different cases, the later not overruling the earlier, should not bind any court below it. A model of how multi-tiered first instance tribunals, such as the High Court and county court, should interact is demonstrated by the approach taken between the Court of Session, Outer House, and inferior courts in Scotland.
1. For example, New Zealand and the Republic of Ireland.
2. In 2009, the total number of civil (non-family) cases started in the county courts was 1,879,405, compared with 49,501 proceedings started in the Chancery Division, and 18,583 claims and originating proceedings issued in the Queen's Bench Division. These include debt proceedings. Judicial and Court Statistics 2009 (London: Ministry of Justice, Version 1.1, 2010) pp 23, 129 and 141.
3. Precedent in English Law (Oxford: Clarenden Press, 4th edn, 1991) p 123.
4. Fitzgerald, PJ (ed) Salmond on Jurisprudence (London: Sweet and Maxwell, 12th edn, 1966)Google Scholar pp 158 and 163 footnote (w).
5. Zander, Ie M The Law Making Process (Cambridge: Cambridge University Press, 6th edn, 2004)CrossRefGoogle Scholar p 251.
6. Bankowski, Z, MacCormick, DN and Marshall, G ‘Precedent in the United Kingdom’ in MacCormick, DN and Summers, R (eds) Interpreting Precedents: A Comparative Study (Dartmouth: Ashgate, 1997)Google Scholar ch 10, p 325.
7. (2008) PL 152. Also mentioned by Zuckerman, A ‘Volume 11 civil procedure’ in Lord Mackay of Clashfern (ed) Halsbury's Laws of England (London: LexisNexis, 5th edn, 2009)Google Scholar, para [98], fn 2.
8. [2007] EWCA Civ 499; [2008] Ch 26; a decision concerning lease extension.
9. [2008] UKHL 44; [2009] 1 AC 39.
10. [2005] 2 EGLR 71.
11. At [84] per Mummery LJ. Mummery LJ's substantive judgment is at [77]–[84], and the separate judgment at [86]–[95].
12. At [87], in this case the jurisdiction being conferred by the Leasehold Reform Acts.
13. Citing Huddersfield Police Authority v Watson[1947] KB 842 at 847, and Colchester Estates (Cardiff) v Carlton Industries plc[1986] Ch 80 (see below). In the Law Reports it is headed ‘Judgment of the court on precedent’.
14. A recent brief summary and application of the position taken by Judges of the High Court is given in The Friends of Basildon Golf Course v Basildon District Council[2009] EWHC 66 (Admin) para [43] per Wyn Williams J: ‘In my judgment I should depart from the reasoning of Richards J only if I was convinced that he was wrong.’
15. At [90].
16. At [91]–[95].
17. This, of course, must be a reference to the ratio of decisions.
18. At [92].
19. Cross and Harris, above n 3, p 123.
20. At [93].
21. At [94].
22. An argument raised in Salmond's Jurisprudence, see above n 4, p 163 footnote (w).
23. At [95].
24. Particularly given the pressure of time that Judges in the county court face. Cross and Harris also advance (see above n 3, p 105) that the obiter-ratio distinction is not relevant to judicial statements relating to rules of precedent.
25. [2007] EWCA Civ 1329; [2008] 1 WLR 643. The Court consisting of Mummery, Arden and Longmore LJJ, a very similar panel to that in Howard consisting of Mummery, Arden and Jacob LJJ.
26. [2002] BPIR 544.
27. At [20]. A decision of a Deputy High Court Judge.
28. [1898] 1 QB 669. A case still of importance in insolvency law; note Maurice Kay, LJ (ed) Blackstone's Civil Practice 2011 (Oxford: OUP, 11th edn, 2010)Google Scholar p 1247. The case was not cited by Counsel.
29. As set out in Young v Bristol Aeroplane Co[1944] KB 718 the general rule is that the Court of Appeal (Civil Division) is bound by its past decisions and those of older courts of coordinate jurisdiction.
30. Evans, J ‘Change in the doctrine of precedent during the nineteenth century’ in Goldstein, L (ed) Precedent in Law (Oxford: Clarendon Press, 1987)Google Scholar ch 2. Although as noted by Baker, JH An Introduction to English Legal History (London: Butterworths Lexis Nexis, 4th edn, 2002)Google Scholar p 200, the House of Lords held in 1898 that it was bound by its own decisions, and it was not settled until 1944 that the Court of Appeal was also bound by its own decisions or Courts of comparable authority.
31. At p 671.
32. At p 672, per AL Smith LJ.
33. At p 672.
34. [1985] 1 WLR 84.
35. [2010] UKUT 454 (AAC).
36. The route of appeal argument in this paper has been altered to reflect the different routes of appeal to a county court decision; the argument in Salmond refers only to appeals to the Court of Appeal. As noted by Smith, Ath Glanville Williams: Learning the Law (London: Sweet & Maxwell, 13th edn, 2006)Google Scholar p 7, until the Access to Justice Act 1999 appeals from the county court lay directly to the Court of Appeal.
37. At [95].
38. Cross and Harris, above n 3, p 123.
39. Salmond, above n 4, p 163, footnote (w).
40. (Oxford: Clarendon Press, 1961) p 117.
41. The doctrine of precedent is applied differently in different Canadian systems: Valcke, C ‘ “Precedent” and “legal system” in comparative law, a Canadian perspective’ in Hondius, E (ed) Precedent and the Law, Reports to the XVIIth Congress of the International Academy of Comparative Law, Utrecht, 16–22 July 2006 (Bruxelles: Bruyhart, 2007)Google Scholar ch 4.
42. [1971] 3 OR 359, 20 DLR (3d) 399; referring to the judgment of Matheson Co.Ct.J., in the County Court of Carleton in R v Beaney[1969] 2 OR 71, 4 DLR (3d) 369.
43. At [6]–[7].
44. [1972] 3 OR 37, 27 DLR (3d) 310.
45. [1969] 2 OR 71, 4 DLR (3d) 369.
46. R v Brooks 16 CRNS 89, [1972] 2 OR 47, 6 CCC (2d) 87; R v L (D) 2005 ONCJ 344, [15]
47. Flowers, R ‘Stare decisis in courts of coordinate jurisdiction’ (19841985) 5 Advoc Q 464 Google Scholar at 477–478.
48. This is recognised in Masse at [7].
49. Cross and Harris, above n 3, p 123. Although the rules of precedent are different and looser in criminal context, compare eg the Court of Appeal (Criminal Division) with the Court of Appeal (Civil Division).
50. Ibid, p 121.
51. At the time of the creation of the county courts ‘there was no appeal from their decisions’, Polden, P A History of the County Court 1846–1971, Cambridge Studies in English Legal History (Cambridge: Cambridge University Press, 1999)CrossRefGoogle Scholar p 50. In 1902, E Bowen-Rowlands noted: ‘[the judge]… cannot, without his consent, be appealed from as to questions of law, except in cases where the amount claimed exceeds £20.’ ‘County Court Judges and their Jurisdiction’ (1902) 18 LQR 237 at 239.
52. Howard, at [92].
53. Pollock, F ‘The science of case law’ in Goodhart, AL (ed) Jurisprudence and Legal Essays by Sir Frederick Pollock (London: Macmillan & Co Ltd, 1961)Google Scholar p 170.
54. Pt 1 of the CPR.
55. ‘Have the Woolf reforms worked?’The Times 9 April 2009. Mr West QC's comment was in relation to the CPR and the prospects of the judiciary making better decisions than the lawyers involved in the case, but his comments were also of broader application. It should be noted that there is often a significant overlap in personnel between the county courts and High Court in that Circuit Judges often sit as Deputy High Court Judges.
56. See below, text to n 81.
57. Particularly when combined with the rules on appeal, see below.
58. 2010 Judicial Statistics, available at http://www.judiciary.gov.uk/publications-and-reports/statistics/judges/judicial-statistics. Mummery LJ noted at [89] that for the case there is no difference between a High Court Judge or a Deputy High Court Judge.
59. [1947] KB 842.
60. At p 848. The decision is in fact a decision of the Divisional Court, but Lord Goddard discussed the issue of judges of first instance. It is advanced that in dealing with judges at first instance Lord Goddard was addressing the position of both County Court and the High Court Judges. As ‘judge of first instance’ is also taken to include County Court Judges, according to Lord Goddard's position they are not bound by the High Court, unless it is sitting as a Divisional Court. The position taken in Howard implicitly assumes without discussion or argument that Lord Goddard's reference to first instance judges covers only judges of the High Court. This ability to deviate from previous decisions should be sparingly exercised, as noted by Sir Andrew Morritt C in Mills & Ors v HSBC Trustee (C.I) Ltd & Ors[2009] EWHC 3377 (Ch), at [8], while judicial comity may be one reason for the rule, the more compelling reason is certainty. Duxbury, N in The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008)CrossRefGoogle Scholar pp 124–125, criticises the failure of Huddersfield to cite an earlier decision of the Divisional Court in Fortescue v Vestry of St Matthew, Bethnal Green[1891] 2 QB 170, which was followed by the Divisional Court in Kruse v Johnson[1898] 2 QB 91. These two Divisional Court cases relate to the power of the Divisional Court to hear a case as a five man court which may review previous Divisional Court authority. However, unlike Huddersfield both cases are criminal cases, and strongly influenced by the subsequent lack of the possibility of an appeal. The position in Huddersfield is not strongly undermined by the failure to cite these decisions, and it is submitted that the subsequent case of Younghusband v Luftig[1949] 2 KB 354 which cites Huddersfield, but not Fortescue, but is in fact a criminal case, at pp 361–362 implicitly demonstrates a difference in approach to precedent where the Divisional Court is acting in a criminal jurisdiction.
61. [1984] 1 WLR 1240.
62. [1984] 1 WLR 772; [1984] 2 All ER 285.
63. Fortunately this conflict was resolved by Re Sinclair reaching the Court of Appeal ([1985] Ch 446), however it is not difficult to envisage with contradictory cases an appeal not being pursued or a settlement being reached.
64. [2006] EWHC 3583 (Ch); [2007] BCC 214.
65. Insolvency Act 1986, s 130.
66. [1995] BCC 774.
67. [1997] Ch 60.
68. [1998] BCC 478. Contrast Seal v Chief Constable of South Wales Police[2007] UKHL 31; [2007] 1 WLR 1910 concerning s 139(2) of the Mental Health Act 1983.
69. [2006] EWHC 3029; [2007] Ch 150.
70. A potential route for a County Court Judge to evade the conflict would be to hold that Re Saunders should be followed on the basis that it is later in time (see below), further that while questioning Re Saunders, strictly Davenham concerns s 285(3)(b) of the Insolvency Act 1986 rather than s 130(2). The second approach is at the expense of legal consistency as the same County Court Judge would have to follow Davenham in relation to 285(3)(b).
71. Hart J in Clowes Developments (UK) Ltd v Walters[2005] EWHC 669 (Ch); [2006] 1 P & CR 1 was contradicted 10 weeks later, without reference to the former by Richards J in Wretham v Ross[2005] EWHC 1259 (Ch); [2005] NPC 87 which was in turn preferred by Judge Hazel Marshall QC, sitting as a Deputy High Court Judge in J Alston & Sons Ltd v BOCM Pauls Ltd[2008] EWHC 3310 (Ch); [2009] 1 EGLR 93.
72. A Goodhart notes: ‘Nor is it an infrequent experience to find that a binding precedent has been overlooked in the Court of first instance and has not been discovered until the appeal has been heard.’‘Precedent in English and Continental law’ (1934) 50 LQR 40, at 52. Given the explosion in the reporting of cases and the availability of transcripts, particularly in electronic media, it is now easy for Counsel to miss some relevant material, although this swathe of material is rendered more manageable by search engines.
73. [1986] Ch 80.
74. At p 85.
75. At [90].
76. Morrelle Ltd v Wakeling[1955] 2 QB 389, per Lord Evershed MR (emphasis added).
77. The power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them; Orwell, G Nineteen Eighty-Four (London: Martin Secker & Warburg Ltd, 1949)Google Scholar p 32.
78. England is not alone in having created this problem. The same problem is also encountered in Ireland and New Zealand, but as with England has not been addressed in those jurisdictions. Ireland has multi-tiered first instance tribunals: the District Court, the Circuit Court, and the High Court. The position in Ireland is that inferior courts must follow the earlier decisions of superior courts, Byrne, R and McCutcheon, JP The Irish Legal System (Dublin: Butterworths, 3rd edn, 1996)Google Scholar p 345, however, the High Court is not absolutely bound by its own previous decisions (p 340). As noted by Kenny J in Kearns v Manresa Estates Ltd High Court, unreported, 25 July 1975, ‘Although I am not bound by decisions of other judges of the High Court, the usual practice is to follow them unless I am satisfied that they were wrongly decided.’ See also Dowrick, FE ‘Precedents in modern Irish law’ (1953) 69 LQR 25 Google Scholar. Likewise with New Zealand the first instance District Courts and High Courts are not obliged to follow their own authorities, yet the District Court is bound by the High Court, McDowell, M and Webb, D The New Zealand Legal System, Structures, Processes and Legal Theory (Wellington, NZ: Butterworths, 2nd edn, 1998)Google Scholar p 355.
79. However, note Duxbury, above n 60, p 111: ‘lower court judges in the United States have, for a variety of reasons, been far more willing than have their English counterparts not to follow a precedent, even when it is not within their power to overrule it’.
80. Caminker, EH ‘Why must inferior courts obey superior court precedents?’ (19931994) 46 Stanford L Rev 817 CrossRefGoogle Scholar at 870–871, eg In re Shattue Cable Corp 138 BR 557, at 566–567 (Bankr ND Ill 1992); First of Am Bank v Gaylor 123 BR 236, at 241–243 (Bankr ED Mich 1991). Some of the arguments made are also statutory.
81. C Th 1.4.3; see Borkowski, A and du Plessis, P Textbook on Roman Law (Oxford: Oxford University Press, 3rd edn, 2005)Google Scholar p 51. The Law of Citations selected five authoritative Roman jurists: Gaius, Papinian, Paul, Ulpian and Modestinus. In the case of a conflict of opinion among the texts of these jurists, the majority view was to prevail. Where there was no majority the Judge was to follow the view of Papinian, or in such cases where Papinian had not expressed a view the Judge was to decide the matter himself.
82. Jolowicz, HF and Nicholas, B Historical Introduction to the Study of Roman Law (Cambridge: Cambridge University Press, 3rd edn, 1972)Google Scholar p 453.
83. Note the Insolvency Act example above.
84. Duxbury, above n 60, p 113.
85. Garnes v Fleming Landfill Inc 186 W.Va. 656, 413 S.E.2d 897,W.Va.,1991, per Justice Neely; cited by Justice O'Connor in TXO Production Corp v Alliance Resources Corp 509 U.S. 443, 113 S.Ct. 2711, 2742, U.S.W.Va.,1993, 25 June 1993.
86. See Goodhart above n 72. It is not always possible for a judge to avoid a decision by distinguishing, see Olympia Oil and Cake Co Ltd v Produce Brokers' Co Ltd (1915) 112 LT 744, which Goodhart describes (at p 55) as ‘sacrifice common sense to consistency’.
87. Duxbury, above n 60, p 114.
88. Ram, J The Science of Legal Judgment; A Treatise Designed to Show the Materials Whereof, and the Process by which, the Courts of Westminster Hall Construct Their Judgments (Philadelphia: John S Little, Law Bookseller and Publisher, 1835)Google Scholar p 78.
89. (1825) 4 Barnwell and Cresswell's Reports 574.
90. While Bayley J decided that he would follow the second of the two contradictory authorities, and noted that the decision ‘is later in point of time’ (589) the primary reason for his doing so appears to be (590) that the rule laid down in the later case is ‘more reasonable’ as it was better calculated to prevent wrongful trespasses than the rule in the first case.
91. Ram, above n 88, p 131.
92. Cross and Harris, above n 3, p 110.
93. [1944] KB 718.
94. Stating ‘seems’, Cross and Harris, above n 3, p 157.
95. Ibid, p 157.
96. Ibid, p 158.
97. [1985] QB 16.
98. The Times 8 Feb 1990.
99. This is not contained within the very brief Times Law Reports report which is the report cited by Cross and Harris, but rather in the fuller report in [1990] NLJ 590 at 590–591.
100. [1978] 2 WLR 182.
101. Ibid, p 194.
102. [1979] AC 264.
103. [1978] 3 WLR 167.
104. Ibid, p 183.
105. (1979) 1 Lloyds Rep 481.
106. See Minister of Pensions v Higham[1948] 2 KB 153 at 155.
107. At p 485.
108. [1951] 1 TLR 856 (affirmed by the Court of Appeal, but on other grounds [1952] 1 KB 232).
109. At p 864.
110. Note First Instance/Appeal arguments below.
111. Duxbury, above n 60, p 63. Note Justice Cardozo, who in MacPherson v Buick LRA (1916) F, 696, 217 NY 382, at 391 pithily states: ‘Precedents drawn from the age of travel by stage coach do not fit the conditions of travel to-day.’
112. Van der Merwe, CG and du Plessis, JE (eds) Introduction to the Law of South Africa (The Hague: Kluwer Law International, 2004)Google Scholar p 46. In South Africa Magistrates' Courts (and other lower Courts) are bound by decisions of the High Courts. Where there is a conflict between decisions of different High Court divisions, the Magistrates' Court must follow the decision of the High Court with geographical jurisdiction over his court.
113. The Court of Appeal at [90] also appears not to distinguish between the two types of case.
114. Salmond, above n 4, p 153.
115. Although the case did not expressly deal with conflicts.
116. At [90].
117. Baker, JH An Introduction to English Legal History (London: Butterworths LexisNexis, 4th edn, 2002)Google Scholar p 135.
118. Morrison, W Blackstone's Commentaries on the Laws of England (London: Cavendish Publishing, 2001)Google Scholar vol 3, [58].
119. Baker, above n 117, p 135.
120. (1820) 3 B & Ald 330, 106 ER 684, at 689.
121. The case referred to was a decision of Lord Kenyon Postlethwaite v Gibson, 3 Esp 226; also note Ram, above n 88, p 98: ‘The value set on Nisi Prius opinions is, generally speaking, small.’
122. Jowitt, E Dictionary of English Law (London: Sweet and Maxwell, 1959)Google Scholar V.2 I-Z: Nisi Prius ‘Unless before. In the practice of the High Court, a trial at nisi prius is where an action is tried by a jury before a single judge, either at the sittings held for that purpose in London and Middlesex, or at the assizes.’
123. Pollock, F A First Book of Jurisprudence (London: Macmillan, 6th edn, 1929)Google Scholar p 347.
124. [1910] 2 KB 636, at 638.
125. [1910] 2 KB 630.
126. [1936] 2 KB 477, at 493.
127. (1936) 52 Times LR 220.
128. Eg the Bolam test (Bolam v Friern Hospital Management Committee[1957] 1 WLR 582).
129. See s 69 of the Senior Courts Act 1981.
130. The effect on the county court of this exception will be limited given that the county court will lack jurisdiction for many matters suitable for a High Court jury trial, and will thus be unlikely to need to consider points of law arising out of these cases.
131. Paton, GW and Derham, DP (eds) Paton A Textbook of Jurisprudence (Oxford: Clarendon Press, 4th edn, 1972)Google Scholar p 215.
132. Eg Central London Property Trust Limited v High Trees House Limited[1947] KB 130; Bolam v Friern Hospital Management Committee[1957] 1 WLR 582.
133. As Salmond, above n 4, p 155, states: ‘One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be reopened.’
134. Notably Dimond v Lovell[2002] 1 AC 384; Lagden v O'Connor[2003] UKHL 64; [2004] 1 AC 1067; [2002] EWCA Civ 510; [2003] QB 36.
135. R v Warner (Ward) 1 Keb 66, 1 Lev 8 (1661), ‘precedents sub silentio and without argument are of no moment’; see Cross and Harris, above n 3, pp 158–162.
136. Cross and Harris, above n 3, p 123.
137. Ashworth, A ‘the binding effect of crown court decisions’ 1980 Crim LR 402 Google Scholar at 403.
138. Ibid.
139. Ibid.
140. Indeed ‘it is only too easy for counsel to miss a relevant authority’, Salmond, above n 4, p 152.
141. Both in terms of the numbers of cases reported and an increasing number of series of reports. ‘There are now some 50 series of law reports’ Zander, M The Law Making Process (Cambridge: Cambridge University Press, 6th edn, 2004)CrossRefGoogle Scholar p 326; Bailey, SH, Ching, Jpl and Taylor, NW (eds) Smith, Bailey and Gunn, The Modern English Legal System (London: Sweet and Maxwell, 5th edn, 2007)Google Scholar p 520.
142. Including through free resources such as BAILII. See Munday, R ‘over-citation: stemming the tide’ (2002) 166 JP (Pt 1) 6 Google Scholar, (Pt 2) 29 and (Pt 3) 83; p 6; also Michaels and Another v Taylor Woodrow Developments Ltd and Others[2001] Ch 493, per Laddie J.
143. Note the introduction to the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.
144. Andrews, NH ‘Reporting case law: unreported cases, the definition of a ratio and the criteria for reporting decisions’ (1985) 5 LS 205 Google Scholar.
145. Transcript of the First Symposium on Law Reporting, Legal Information and Electronic Media in the New Millennium, Held at Cambridge in March 2000 (London: Smith Bernal International, 2000) p 13.
146. This does not sit well with the overriding objective, see A v B & C[2002] EWCA Civ 337, per Lord Woolf CJ, [8]–[9].
147. Goodhart, AL ‘Case law in England and America’ in Essays in Jurisprudence and the Common Law (Cambridge: Cambridge University Press)Google Scholar ch 3, pp 50–74.
148. Para 2A.1, Table 1.
149. For example an appeal to a final decision made by a District Judge in a county court Pt 7 claim other than a claim allocated to the multi-track is heard by a Circuit Judge in the county court. An appeal to a final decision made by a Circuit Judge in a county court Pt 7 claim other than a claim allocated to the multi-track is heard by a Single Judge of the High Court. An appeal to a final decision made by a District Judge or Circuit in a county court Pt 7 claim allocated to the multi-track is heard by the Court of Appeal.
150. As the Court of Appeal is bound by itself one decision will be per incuriam, for the Supreme Court the later decision will overrule the earlier.
151. [1944] KB 718.
152. Jackson, LJ (ed) The White Book 2011 (London: Sweet and Maxwell, 2011)Google Scholar at 52.3.7.
153. For example it is an issue rarely encountered by the Courts, although one would hope permission would then be granted under (b).
154. Delay and injustice are perhaps the underlying motives behind the routes of appeal argument suggested by Salmond.
155. Through the approach in Colchester Estates.
156. Non exemplis, sed legibus iudicandum est. The famous maxim has its source in the Corpus Iuris Civilis (C.7.45.13). However, it is important not to take this too far, even the Corpus Iuris Civilis recognised a role for judicial decisions as authority (note: D 1.3.34; 1.3.38; C 8.52.1). Further as noted by Paton and Derham, above n 131, p 209, even in civilian jurisdictions: ‘a long course of decisions may have very high persuasive authority’.
157. Busby, N, Clark, B, Paisley, R and Spink, P Scots Law, A Student Guide (Haywards Heath: Tottel, 3rd edn, 2006)Google Scholar p 36.
158. Cooper, TM ‘the common and the civil law – a Scot's view’ (19491950) 63 Harv LR 468 CrossRefGoogle Scholar at 472–473.
159. Smith, TB The Doctrines of Judicial Precedent in Scots Law (Edinburgh: W Green & Son Ltd, 1952)Google Scholar pp 6 and 10.
160. Cooper, above n 158.
161. Now the Supreme Court.
162. In the English as opposed to US notion of precedent.
163. Walker, DM The Scottish Legal System, An Introduction to the Study of Scots Law (Edinburgh: W Green/Sweet and Maxwell, 8th edn, 2001)Google Scholar p 441.
164. Although it also deals with some appeals.
165. Walker, above n 163, p 446.
166. Ibid.
167. Smith, above n 159, notes the existence of a distinction between the Outer House and lower courts and the English High Court and lower courts and ascribes the different positions as resulting from the fact that ‘the influence of appellate jurisdictions seems to have moulded the doctrine of precedent in Scotland’ (pp 18–19). These tribunals are however bound by the Court of Session, Inner House, whose principal work is hearing appeals from the decisions of Sheriffs, Sheriff Principal or the Outer House; Gordon, AB and Field, D Elements of Scots Law (Edinburgh: W Green/Sweet and Maxwell, 2nd edn, 1997)Google Scholar p 13.
168. Sir Smith, T (ed) The Laws of Scotland, Stair Memorial Encyclopaedia, Vol 22 (Edinburgh: The Law Society of Scotland, Butterworths, 1987,Google Scholar and 2009 Cumulative Supplement), pp 105–106, para 265, although Stair admits that this cannot be the sole explanation for precedent in Scotland given that one Division of the Court of Session is bound by another.
169. Ibid, pp 129–130, para 298.
170. Ibid, p 130, para 300, even if in the same Sheriffdom.
171. Ibid.
172. Ibid, para 299.
173. Welsh, T (ed) The Hon. Lord Macphail's Sheriff Court Practice (Edinburgh: Scottish Universities Law Institute Ltd, 3rd edn, 2006)Google Scholar para 18.08.
174. Response to Public Health Etc (Scotland) Bill (Edinburgh: Law Society of Scotland 2008) para 10, available at http://www.lawscot.org.uk/media/30131/2294_lr%20-%20public%20health%20etc%20(scotland)%20bill.pdf.