The UK Government has launched a consultation on the ability of lower courts in the UK to depart from retained EU case law, i.e. decisions of the Court of Justice of the European Union (CJEU), post-Brexit. 

The current position under section 6 of the European Union (Withdrawal) Act 2018, as amended, is that after the end of the transition period (which is currently set to be 11pm on 31 December 2020), the majority of UK courts will still be bound by retained EU case law, namely decisions of the CJEU that took place before the end of the transition period.  As currently drafted, the only English court with the power to depart from earlier CJEU decisions is the Supreme Court. 

The consultation seeks views on extending this power to lower courts.  It puts forward two options.  Option 1 is extending the power to the Court of Appeal of England and Wales and its closest equivalents in other UK jurisdictions.  Option 2 is extending the power, in addition to the Court of Appeal and equivalent courts, to the High Court of Justice of England and Wales and its closest equivalents in the other UK jurisdictions.

The consultation also seeks feedback on the test courts should apply in deciding whether it is appropriate to depart from retained EU case law.  The Government proposes that the test to be applied would be the one currently used by the Supreme Court when deciding whether to depart from its own judgments, namely “Whether it appears right to do so”.  The Government does not propose to provide any statutory checklist of considerations. 

One area of IP law where this is particularly relevant is copyright law, where recent judgments of the CJEU (Cofemel and Brompton Bicycle to name just two) have diverged substantially from the traditional UK approach.  Those that disagree with the CJEU approach will relish the possibility of it being challenged in the courts at the earliest possible opportunity, while others will be concerned about the downsides acknowledged in the consultation, including the likelihood of re-litigation and the real potential for uncertainty.  It seems likely that a large number of IP cases over the next few years will involve some form of argument over retained EU case law issues.  The consultation also seeks views on the extent to which courts should be allowed to depart from retained domestic case law (i.e. decisions of UK courts where the ruling was based on EU law/CJEU case law), which introduces a further layer of complexity and potential for uncertainty.

While acknowledging the potential for uncertainty, the Government’s stated preliminary view is that it is “desirable to extend the power to depart from retained EU case law to additional courts and tribunals” which supports its aim of “encouraging timely departure from retained EU case law”.  It seems likely from this that the power to depart will be extended to the Court of Appeal at the very least. 

Anyone wishing to submit a response to the consultation can access it here.  It is open until 13 August 2020.