CIVIL LITIGATION

This does not inevitably mean that the domestic court must follow the Strasbourg court. Rather, the court has to have very good reasons for departing from Strasbourg jurisprudence.

Special circumstances justifying departure might exist if the domestic court is satisfied that the Strasbourg court had misunderstood the effect of domestic law. If the rule of domestic law creates a discretion rather than an absolute rule of law, the domestic court might come to the conclusion that the discretion should be exercised in a different way from that in which it was in fact exercised in the case before the Strasbourg court.

If the Strasbourg court finds that a particular area falls within the margin of appreciation of contracting states, this is a signal to the national judge that the decision of the national authorities as to the content of rights within that area should receive appropriate respect.

In the absence of special circumstances:

(i) if domestic law within an area found by the Strasbourg court to be within the contracting states’ margin of appreciation is challenged before an English court, the English court should consider whether or not the domestic rule serves a legitimate aim and is proportionate (according the appropriate degree of respect to the decision maker in domestic law) and should find that the law is Convention-compliant if those tests are satisfied; and

(ii) where the Strasbourg court has itself already carried out this exercise, the English court should follow the decision of the Strasbourg court (Lady Justice Arden at paras 31–37).