Judicial Precedent: When Puisne Judges Disagree

November 18, 2024

Mr Justice Morris took it upon himself to disagree with his brother judge, Mr Justice Ritchie’s recent decision in Aga v General Dental Council [2023] EWHC 3208 (Admin) in relation to whether a period of suspension would take effect from the conclusion of an appeal or whether the period during which the Registrant had been suspended pursuant to the Immediate Suspension Order should be deducted from the five months of the suspension direction with the effect that he was no longer suspended and was free to return to practice: Professional Standards Authority for Health and Social Care v (1) General Dental Council, (2) Arthif Danial and between Arthif Danial v General Dental Council [2024] EWHC 2610 (Admin)

The General Dental Council’s appeal in Aga is currently before the Court of Appeal and a decision is awaited. In the meantime, it appears to have been the practice of the GDC to urge tribunals to disregard the ruling of Ritchie J pending the appeal, but defending an appeal on the same issue they found a judge who was prepared to depart from his brother’s decision and change, at least for the time being, the course of judicial precedent.

The law is comparatively straightforward. The Divisional Court said in R v Greater Manchester Coroner, ex parte Tal [1985] QB 67, that a judge of the High Court “will follow a decision of another judge of first instance, unless … convinced that that judgment is wrong, as a matter of judicial comity.

The matter was addressed further by the Supreme Court in Willers v Joyce (No 2) [2016] UKSC 44, [2018] AC843, when Lord Neuberger addressed the application of the doctrine of precedent applicable to courts of co-ordinate jurisdiction as follows:

“So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peer, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary.”

Morris J professed to take the course most favourable to the Registrant by purporting to approach the issue on the basis that he should follow the decision of Ritchie J unless there were powerful reasons not to do so, further concluding that if he considered that decision to be wrong then this amounted to a powerful reason not to follow it. He then undertook a detailed analysis of why the decision in Aga was wrong and declined to follow it, at the same time criticising Ritchie J’s use of the words “take effect” and “start”.

With respect to the learned judge, he has muddied the waters when the issue is already before the Court of Appeal who have the appropriate standing and will determine the matter in the fairly near future.

If further appeals are heard by the Administrative Court judges before the Court of Appeal decision in Aga, they will no doubt be directed by the regulator’s counsel to Lord Neuberger’s comments that where there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed …

But the appellant’s counsel will also no doubt impress the last words of that sentence “in the absence of cogent reasons to the contrary”.

Of course, if the appellate judge thinks that Morris J was just wrong in his decision, then he too may feel able to justify his decision in exactly the same way by asserting that there were cogent reasons for doing so.

All this makes a nonsense of short-term judicial precedent and can only lead to confusion and unnecessary legal fees for regulators, defence organisations, and heartache for registrants.

Other issues arose in this straightforward appeal by the PSA and the Registrant which appears to have consumed far too much court time. The decision will be of interest to other judges, legal professionals and law students, but the judgment of Morris J (who is not known for his brevity) is, at 275 paragraphs, akin to a Homeric epic.