From TuneIn to Merck: Examining the Court of Appeal’s developing practice on departing from the pre-Brexit case law of the Court of Justice of the European Union

Intellectual property cases are at the forefront of the developing case law on departing from pre-Brexit European Court of Justice (CJEU) authority under the European Union (Withdrawal) Act 2018. After the Court of Appeal’s high profile decision not to depart in TuneIn, the Court of Appeal issued its first decision departing from CJEU precedent in ICE. More recently, it has again declined again to depart in Thatchers and Merck. As it stands, when deciding when to exercise the new power to depart, the EUWA 2018 explicitly tasks the UK appeal courts with replicating the Supreme Court’s domestic approach to its own precedent. This article analyses the four post-Brexit IP cases in light of domestic case law. While TuneIn, Thatchers and Merck were cautious, ICE is considerably more bullish. There has been marked variation in approach from judge to judge and case to case. New considerations pertaining to the CJEU’s legal reasoning have also been introduced which may pose challenges if they are to be meaningfully and reliably applied going forward. This article calls for caution on those new factors, a greater grounding of the Court of Appeal’s approach in the Supreme Court’s domestic practice and more consistency of overall approach.