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Power to divert from retained EU case law extended to Court of Appeal

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United Kingdom

On 15 October 2020, the Government announced that it is bringing in regulations at the end of the Brexit transition period (31 December 2020) which will allow the Court of Appeal of England and Wales (and equivalent courts across the UK) to depart from retained EU case law. As things currently stand, under the European Union (Withdrawal) Act 2018, it is only the UK Supreme Court (or High Court of Justiciary in Scotland) with this power. The Government has always considered it necessary for at least the Supreme Court to have the ability to depart from retained EU case law in order for our own case law to evolve after our departure from the EU, but it launched a consultation on 2 July 2020 as to whether to extend that right to other UK courts and tribunals.
 
The consultation closed on 13 August 2020 and the Government has now published its response and has laid Regulations before Parliament (the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020) together with an Explanatory Memorandum, to extend the power to depart from retained EU case law after IP completion day (i.e. 11pm on 31 December 2020) to specified appellate domestic courts, including the Court of Appeal of England and Wales.
 
This means that, whereas before it was only the Supreme Court that would have the ability to depart from retained EU case law, it will now also be the Court of Appeal in England and Wales (and equivalent courts in other UK jurisdictions (e.g. the Court of Appeal in Northern Ireland)) that will have the ability to depart. The government stated that it has decided not to allow additional lower courts (e.g. The High Court of Justice in England and Wales) the power to depart from retained domestic law relating to retained EU case law, due to a risk of legal uncertainty.
 
In deciding whether to depart from EU retained case law, the relevant court (i.e. the Court of Appeal) must apply the same test as the Supreme Court in deciding whether to depart from its own case law, that is, 'whether it appears right to do so'. The Regulations do not specify any further factors for the relevant courts to consider.
 
This is an interesting development (especially considering the majority of respondents to the consultation were against extending this ability to depart from retained EU case law to a court lower than the Supreme Court) and the central reason for this decision appears to be that it will assist in enabling retained EU case law to "evolve more quickly than otherwise might have been achieved" in order to reflect the UK's withdrawal from the EU, had the power only been vested in the Supreme Court. The Government also said in its July consultation document that allowing more courts to depart from retained EU case law will allow more litigants to have "sufficient ability to seek a change to retained EU case law where it adversely affects them". There is still some concern though, that extending the power to depart from retained EU case law to the Court of Appeal could lead to inconsistency and uncertainty across the UK courts. The Government's reassurance, however, is that by allowing the Court of Appeal to depart, this will alleviate pressures on the Supreme Court and that the Supreme Court will benefit from the prior judicial findings on complex issues by the Court of Appeal. Hopefully, by restricting this power to depart to the highest UK courts, and applying the Supreme Court's test of only being able to depart when it appears right to do so, this will minimise the risk of adverse impacts and the risk of divergence of approach between the courts across the UK.
 
It will be interesting to monitor the impact of these regulations on the UK courts from January next year and to see how quickly UK law diverges from EU law. We have spent so many years trying to harmonise EU laws in the intellectual property sphere and we may now see our domestic case law evolving quicker than we perhaps envisaged. Some in the legal industry are concerned that there will be an increase in litigation and appeals to the Court of Appeal and Supreme Court in an attempt to overturn long-established EU case law. Others, however, believe this a welcome solution to adequately reflect our new-found independence. In the words of Lord Chancellor, Robert Buckland QC, which sums up quite nicely the opinions of others in the judiciary, "once the transition period is over, it is absolutely right that UK courts have the final say on legal disputes affecting our nation. This move provides legal certainty while ensuring that UK case law can quickly evolve to reflect our new status as an independent country following departure from the EU". Whatever people's views on Brexit, it is happening and we need to move forward.

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