Back in July, I reported on the UK Government’s 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 (see here).  The outcome of that consultation has now been published, with the Government deciding to extend the power to the Court of Appeal of England and Wales (and its closest equivalents in other UK jurisdictions) but not to the High Court of Justice of England and Wales and equivalents. 

The Government said that this would “help achieve our aim of enabling retained EU case law to evolve more quickly” and would assist the UK Supreme Court by providing a prior judicial dialogue on these complex issues at Court of Appeal level.  It went on to say that restricting the power to the highest appeal courts would minimise the risk of legal uncertainty resulting from additional litigation being brought and the risk of divergence of approach between courts across the UK.

With 56% of respondents answering that they did not think that the power to depart from CJEU case law should be extended beyond the Supreme Court and High Court of Justiciary, the Government noted that many of the consultation responses expressed “caution” around the power to depart from retained EU case law.  However, the Government also made it clear that the subject of the consultation was whether more courts should have the power to depart from CJEU case law, rather than whether the power should exist at all.  With that in mind, the Government has actually gone with the less radical option, deciding against also extending the power to the High Court.  

As I mentioned in my July post, in the IP space, this is particularly relevant to copyright law, where CJEU case law has moved away from the traditional UK approach in recent years. First instance courts will remain bound by the CJEU approach, as set out in cases such as Cofemel and Brompton Bicycle, unless and until there is a Court of Appeal decision that departs from it, creating the real possibility that any case raising issues of this kind will have the prospect of an appeal hanging over it from the start.  With this likely to persist until the UK approach is settled by the Court of Appeal and/or Supreme Court, it will be interesting to see how cases in this area are decided over the next few years. 

The full consultation outcome can be read here.