Precedent - whom binds whom?

This article considers the fascinating judgment of Master Matthews in Coral Reef Ltd v Silverbond Enterprises Ltd & Anor [2016] EWHC 874 (Ch) which considered the hierarchy of judges (as opposed to the courts themselves).

The decision is of interest to litigators generally, but of particular relevance to we litigators who specialise in work in the High Court and District Registries.

Submissions

The bold submissions of Leading Counsel for the Claimants in this case was summarised by Master Matthews as follows:

"(1) Decisions of High Court Judges are binding on other judges below them in the hierarchy of authority, not because of (for example) the destination of appeals, but because of the status of the decision as the decision of a High Court Judge;

(2) A Master can perform nearly all judicial functions of the High Court, but occupies an office at a lower level than a High Court Judge in the hierarchy of authority;

(3) Therefore, a Master is automatically bound by the decision of a High Court Judge".

The submissions of Leading Counsel for the Defendants was summarised by Master Matthews as follows:

"it is not the seniority or status of the judge that is relevant, but instead the superiority of the court. On that basis, the decisions of High Court Judges and Masters exercising the jurisdiction of the High Court are decisions of a court of co-ordinate jurisdiction".

Considerations

Master Matthews noted that there was almost no authority on whether Masters were bound by the decisions of High Court Judges; the only decision he was aware of was a case known as Randall v Randall [2014] EWHC 3134 (Ch).

In Randall v Randall the Deputy Master was confronted with two conflicting authorities - one of a Master, the other of a High Court Judge. The High Court Judge in his judgment had been referred to the conflicting authority of the Master and had said:

"Through no fault of the Master concerned, the reasons for his decision in Green v Briscoe are not available, and, even if they were, while entitled to respect, they would not bind me".

Master Matthews, commenting on this in Coral Reef v Silverbond, stated as follows:

"It may be observed that, in accordance with the dictum of Lord Goddard CJ and the passage in Halsbury already cited, this is strictly correct. HHJ Mackie QC was in any event not "bound" to follow the decision of "a judge of equal jurisdiction". It is however possible that HHJ Mackie QC was intending to go further than this, and to assert that he, sitting as a judge of the High Court under s 9(1) of the Senior Courts Act 1981, occupied a position in the judicial hierarchy superior to that of Master Bragge for the purposes of the doctrine of judicial precedent. Even if this were so, no reasons were given for that view's being taken, and it is not known whether the point was the subject of any argument. From the absence of any reference in the short judgment (10 paragraphs in total) to any such arguments, and in the context of the decision as a whole, it does not appear so".

The conclusion of Deputy Master Colla?o Moraes in Randall v Randall  was as follows:

"Mr Littman asserted that a decision of a Master of the High Court is not of the same 'quality' as that of a Judge of the High Court and that consequently a judgment of a Judge should be preferred to that of a Master. Mr Baxter submitted that the decisions were of the same standing. In my judgment a decision of a Master and a Judge of the High Court are of the same standing in terms of the doctrine of precedent. They both are judges of the High Court exercising the same jurisdiction, though the jurisdiction of Masters is subject to certain restrictions. Further, it is of note that a Master will have greater experience of certain types of disputes and of particular relevance is the fact that the Masters of the Chancery Division are likely to have a greater familiarity with the issue of an 'interest in an estate' than a Judge of the same division".

Returning to Coral Reef v Silverbond, the Claimants made submissions that the decision of the Deputy Master in Randall v Randall was wrong because it sought to develop the law; Leading Counsel made the following submissions:

"18. Finally, it is submitted that it is not open to a Master to develop the English doctrine of precedent by holding that, in the absence of authority on the point, it is open to him to treat the judgments of Masters exercising the jurisdiction of the High Court as having the same status as judgments of High Court judges. A Master cannot extend the doctrine of precedent if, prior to the extension, a Master's decisions are not relevant within the common law doctrine of precedent.

19. Hence the decision in Randall v Randall [2014] EWHC 3134 (Ch) could not possibly have this effect, and should not be followed…"

An entertaining response from Master Matthews followed:

"37. So far as I know, Mr Tager QC is right to say that there is no other instance of a master deciding on the status of a master's decisions within the doctrine of precedent. But I am not very impressed with the argument that because it has never been done before it is therefore wrong. It reminds me of the famous quotation from the judgment of Denning LJ in Packer v Packer [1954] P 15, 22:

"What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both."

38. In the same vein there are other judicial statements, such as that of Lopes LJ in the Court of Appeal in Re Davy (a lunatic) [1892] 3 Ch. 38, 40:

"If there is no precedent for the course which the Court is now taking, the sooner a precedent is made the better"

and of Scrutton LJ (also in the Court of Appeal) in Ellerman Lines v Read [1928] 2 KB 144, 152: 

"If there is no authority for this, it is time we made one".

Master Matthews made the modest observation that:

"I have no doubt that the 'off the cuff' view of most High Court judges would have been that masters were obviously inferior to, and therefore bound by the decisions of, judges";

but he went on:

"But the world has moved on since those days. For example, there is no longer an automatic right to ask the judge to rehear any application made to the master; an appeal must be brought, and permission obtained. It is necessary to reconsider the matter on principle, and under the civil procedure system as it is at the present day".

Master Matthews went on to consider the Court of Appeal's decision in Howard de Walden Estates Ltd v Aggio [2008] Ch 26 which strengthened the view that the doctrine of precedent was concerned with the status of the court as opposed to the status of the judge.

He also highlighted that where a judge of a higher court sat in a lower court, this did not elevate the status of the judgment.

The point was further made that Masters are also usually experts in their field with it being noted  by Master Matthews that:

"It is not easy to see why the considered decisions of masters on particular points arising in the course of their judicial work should be treated as any the less valuable decisions of the High Court than those of High Court judges, circuit judges and recorders sitting under s 9(1) of the Senior Courts Act 1981, and qualified lawyers sitting as deputy High Court judges under s 9(4) of that Act";

he continued:

"In practice, as HHJ Mackie QC recognised in O'Brien v Seagrave, no High Court judge, having had cited to him or her the reasons for a decision of a master that was in point, would today simply ignore them. But if the High Court judge thought that the decision was wrong then he or she would say so, and would be free to decide differently. That is what happens between High Court judges now. There is no obvious reason why it should be even difficult, let alone impossible, to do the same as between a High Court judge and a master".

Master Matthews also considered the Claimant's suggestion that:

"Masters are simply not judges. Instead, he says, they are simply 'officers' of the court, and refers to ss 19(3)(b) and 89 of the 1981 Act";

to that suggestion Master Matthews said this:

"Those sections do indeed refer to masters as 'officers' of the court. After all, they hold a statutory office. However, there is no a priori reason why the description given in this particular statute should have any impact on the rules of precedent in the absence of any statutory or caselaw rule for doing so. None was cited to me. Moreover, elsewhere in the Act it is made clear that High Court judges (and those above them in the legal hierarchy) also hold an office: see eg s 11. So they too are 'officers' of the court. They are all judicial officers of the court, in contrast to, say, solicitors. In my judgment, there is nothing in this point."

The point was also made that the reporting of cases was necessary for legal certainty. Master Matthews accepted that in the past Masters' decisions were not commonly available, but:

"as HHJ Mackie QC noted in O'Brien v Seagrave, all that means is that, if a judge does not have the master's reasons for judgment, he or she cannot take them into account. A judge reaching a different decision from that of the master in the absence of the master's reasons is all the more likely to be convinced it is wrong. But in modern times, with the growth of computer databases (both proprietary and free), searchable over the internet, important masters' decisions are now readily available. Given the specialist skills that masters have, and the important role that they play in the procedure of Queen's Bench and Chancery litigation, this can only be an advantage".

Master Matthews cited the Claimant's final argument:

"that there is only a limited number of High Court judges, and that "comity as between them … assists the orderly development of the law." But, he says, anomalies would arise if the decisions of masters were to be treated as of equal precedent status as those of High Court judges. He then gives some examples of what he says are such anomalies. But, as Buckley LJ said in Pearson v IRC [1980] Ch 1, 24D, "The ingenuity of counsel can almost always produce possible anomalies in either direction, and that has been the case here." (See also in the House of Lords, [1981] AC 753 775D, 786F-H.) As a result, consequentialist arguments of this kind are of limited value to begin with".

Conclusion

Master Matthews made the following bold conclusion, thus developing the law:

"a master exercising the jurisdiction of the High Court is bound by relevant decisions of the Court of Appeal and the Supreme Court, but is not bound by a relevant decision of a High Court judge. However, just as between two High Court judges, a master will usually follow such a decision out of comity, unless convinced that it is wrong. In the present case, to the extent that it is relevant to ask whether I am convinced that the decision of Andrew Smith J in Sarpd Oil International v Addax Energy SA [2015 EWHC 2426 (Comm) is wrong (and of course it is a wholly unreal question), the answer must be Yes".

The relevance in practice

So, I can hear you keenly ask - "how does this effect us in practice?". As we can see from the above, those who deal with applications before Masters now have the benefit of being able to highlight that a High Court judgment is not binding on the Master (now gone are the days when we feel dread and sense instant loss as our opponent flashes a High Court authority bang on point and says that the Master is "bound").

More interesting is the effect that this decision has on the District Registries.

Whilst I have never come across the authority of a Section 9 judge being challenged (as I believe generally their status is considered on par with a High Court Judge), there has always been a question mark over the status of District Judges sitting in the same capacity as a Master (indeed the same was true as to the status of Masters prior to the matters discussed above).

I think it has always been assumed that District Judges are bound by the decisions of High Court Judges - that is certainly the impression I have always got when dealing with District Judges who have felt that their hands have been tied by High Court decisions.

What this decision tells us by implication however, is that District Judges of the District Registries who sit in the jurisdiction of the High Court are therefore also not bound by the decisions of either Section 9 or High Court Judges.

For these reasons, our interim applications before Masters and District Judges can now become much more interesting - as our opponent gleams with joy when they locate that precious High Court authority and present it - we can wipe that smirk off their face as we invite the judge to depart from it! Oh how the tables have turned!