I will phrase this question in New Zealand legal terms but I am actually interested in any common law jurisdiction or any jurisdiction with adversarial system.

Say there is some case law made in the High Court establishing that certain procedural peculiarity is appropriate (it could be related to whether/how certain class of defendants can be added to proceedings, or fine-grained rules regarding admissibility of evidence etc.). The appropriateness of this procedural peculiarity was first declared by a High Court judge several years ago, and has been cited by High Court judges since then. It has never been challenged in the next level court (Court of Appeal).

Does the fact that the procedural peculiarity was not challenged in the Court of Appeal in the first place prevent it from being challenged later in any other case citing it? Can it still be challenged in the next level court despite being long established in the lower court?

2 Answers 2


Any precedent can be overturned by any court at the same or higher level in the hierarchy

So, for your example of a High Court precedent, it can be overturned at Supreme Court, Court of Appeal or High Court levels. However, the longer a precedent is in place, the less likely it is to be overturned because one of the objectives of the legal system is to provide certainty - a system that routinely overturns precedent doesn’t do that. Also, a precedent that is often cited with approval is more compelling because it’s no longer just one judges reading of the law, many other judges agree.

Also, the judiciary tends to be conservative in overturning precedent. Most judges see it as their role to interpret law made by the legislature. If the people/legislature think their interpretation is wrong then the judiciary tends to feel that the legislature is the body who should change the law. That said, really old common law precedent that hasn’t been cited for a long while may be readily overturned if it comes up because social expectations may have changed.


Can it still be challenged in the next level court despite being long established in the lower court?

Yes. What matters (or should matter) is that case law evolves in a way that (1) is compatible or most consistent with other prominent/competing doctrines, and (2) reliably addresses the root cause of controversies at issue.

Case law intransigence or stagnation merely on grounds of preserving tradition or legal precedent --as in some matter "being long established in the lower court"-- only worsens the judiciary's ignorance of real life aspects that originate disputes. That intransigence renders the judicial system useless and archaic for solving those disputes, many of which keep becoming increasingly complex anyway.

Also keep in mind that prior (whether lower or upper) courts might not have had the occasion, the will, or the acumen to assess ramifications of the legal precedent on which they "premise" their rulings. Regardless, a court's failure to assess or grasp up-to-date knowledge and newly identified ramifications should never prevent the entire body of law from evolving.

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    This answer talks about what "should" happen in the poster's opinion, not how actual court systems operate and therefore does not really address the question. Commented Jul 21, 2019 at 4:15
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    @GeorgeWhite I hope you realize that your cherry picking on what I post is making you come up with nonsense. By alleging that my answer does "not [address] how actual court systems operate", you are implying that courts actually don't care to address any doctrinal inconsistencies that may arise in a dispute; or that courts are comfortable with being stagnant & useless once the complexity of issues evidences the obsolescence of precedent. Maybe the fact that I happened to type "should" somewhere in the answer sets you off, which would indicate you are not grasping the core of this answer. Commented Jul 21, 2019 at 12:29

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