“i) TuneIn’s service (web based or via the apps), insofar as it includes or included the sample stations in Categories 2, 3, and 4, infringes the claimants’ copyright[s] under s20 of the 1988 Act. ii) TuneIn’s service (web based or via the apps), insofar as it includes the sample stations in Category 1, does not infringe the claimants’ copyright under s20 of the 1988 Act. iii) TuneIn’s service via the Pro app when the recording function was enabled infringed the claimants’ copyright[s] under s20 of the 1988 Act insofar as it included the sample stations in Categories 1, 2, 3, and 4. iv) Individual users of the Pro app who made recordings of sound recordings in [the] claimants’ repertoire will themselves have committed an act of infringement under s17 of the 1988 Act. Some but not all will have fallen within the defence in s70. v) The providers of sample stations in Categories 2, 3, and 4 will (or did) infringe when their station was targeted at the UK by TuneIn. vi) TuneIn is liable for infringement by authorisation and as a joint tortfeasor.”
“Secondary Uses of Phonograms If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration.”
“Right of Communication to the Public Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”
“It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention. …”
“Right of Making Available of Phonograms Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.”
“(15) The Diplomatic Conference held under the auspices of the World Intellectual Property Organisation (WIPO) in December 1996 led to the adoption of two new Treaties, the ‘WIPO Copyright Treaty’ and the ‘WIPO Performances and Phonograms Treaty’, dealing respectively with the protection of authors and the protection of performers and phonogram producers. Those Treaties update the international protection for copyright and related rights significantly, not least with regard to the so-called ‘digital agenda’, and improve the means to fight piracy world-wide. The Community and a majority of Member States have already signed the Treaties and the process of making arrangements for the ratification of the Treaties by the Community and the Member States is under way. This Directive also serves to implement a number of the new international obligations. (23) This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts. (27) The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive.”
“Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.”
“(1) The communication to the public of the work is an act restricted by the copyright in– (a) a literary, dramatic, musical or artistic work, (b) a sound recording or film (c) a broadcast. restricted by the copyright in– (a) a literary, dramatic, musical or artistic work, (b) a sound recording or film (c) a broadcast. (2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include– (a) the broadcasting of the work; (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.”
“Over the past 40 years the House has exercised its power to depart from its own precedent rarely and sparingly. It has never been thought enough to justify doing so that a later generation of Law Lords would have resolved an issue or formulated a principle differently from their predecessors.”
“14. The claimants were four journalists who between them had written 13 articles published by the Göteborgs-Posten newspaper. Three of the journalists were employed by the newspaper, while one was freelance. All of the articles had all been published not only in print, but also online on the newspaper’s website. In the case of one of the articles, which was written by the freelance author, the online publication by the newspaper was not licensed by the author. In addition to publishing the articles online on its own website, the newspaper had licensed Mediearkivbolaget to make copies of the articles available from its Mediearkivet database. None of the claimants had licensed this. The defendant Retriever was a member of the same group of companies as Mediearkivbolaget which provided media monitoring and search services. The claimants brought proceedings before the Stockholm District Court claiming that Retriever had infringed their copyrights in the articles. 15. Retriever provided its services to about 3,000 subscribers. The media monitoring service involved Retriever searching the internet using agreed search words so as to inform the subscriber as to how it had been reported in the media or how specific issues had been handled. The results of the searches were sent by Retriever to the subscriber by an email which included links to relevant articles (that is to say hyperlinks to websites on which the articles were available) together with socalled ‘link tails’ which included a few words from the articles in question. The subscriber could also review the search results by logging onto Retriever’s website. If the subscriber so requested, and paid an additional fee, the search would include a search of the Mediearkivet database. 16. The search service comprised a search facility on Retriever’s website. The search included a search of the Mediearkivet database. The search result was presented to the subscriber in the form of lists of links. … 18. The District Court … considered the claimants’ claim that Retriever had made the articles available to the public by the provision of links in the results of its search service. (This claim did not extend to the media monitoring service.) … 20. … The District Court considered that the preponderant view amongst commentators was that ‘reference linking’ did not constitute communication to the public and shared this view. Since Retriever’s links were reference links, the District Court concluded that there was no communication to the public in the instant case. … 22. The claimants appealed. …. The Svea Court of Appeal referred … questions to the Court of Justice …”
“25. In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public. 26. The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them. 27. In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication. 28. Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.”
“Rather, those decisions confirm the importance of such consent under that provision, as the latter specifically provides that every act of communication of a work to the public is to be authorised by the copyright holder.”
“… it may be difficult, in particular for individuals who wish to post such links, to ascertain whether website to which those links are expected to lead, provides access to works which are protected and, if necessary, whether the copyright holders of those works have consented to their posting on the internet. Such ascertaining is all the more difficult where those rights have been the subject of sub-licenses. Moreover, the content of a website to which a hyperlink enables access may be changed after the creation of that link, including the protected works, without the person who created that link necessarily being aware of it.”
“49. In contrast, where it is established that such a person knew or ought to have known that the hyperlink he posted provides access to a work illegally placed on the internet, for example owing to the fact that he was notified thereof by the copyright holders, it is necessary to consider that the provision of that link constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29. 50. The same applies in the event that that link allows users of the website on which it is posted to circumvent the restrictions taken by the site where the protected work is posted in order to restrict the public’s access to its own subscribers, the posting of such a link then constituting a deliberate intervention without which those users could not benefit from the works broadcast (see, by analogy, … Svensson …). 51. Furthermore, when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.”
“… in a case in which it was questioned about the concept of a ‘new public’, the Court held that, in a situation in which an author had given prior, explicit and unreserved authorisation to the publication of his articles on the website of a newspaper publisher, without making use of technological measures restricting access to those works from other websites, that author could be regarded, in essence, as having authorised the communication of those works to the general internet public (see, to that effect, … Svensson …).”
“41 … it must be held that the present case does not concern a situation of the ‘mere’ provision of physical facilities for enabling or making a communication. … Mr Wullems, with full knowledge of the consequences of his conduct, pre-installs onto the ‘filmspeler’ multimedia player that he markets add- ons that specifically enable purchasers to have access to protected works published — without the consent of the copyright holders of those works — on streaming websites and enable those purchasers to watch those works on their television screens …. That intervention enabling a direct link to be established between websites broadcasting counterfeit works and purchasers of the multimedia player, without which the purchasers would find it difficult to benefit from those protected works, is quite different from the mere provision of physical facilities …. In that regard, it is clear from the observations presented to the Court that the streaming websites at issue in the main proceedings are not readily identifiable by the public and the majority of them change frequently. 42. Consequently, it must be held that the provision of a multimedia player such as that at issue in the main proceedings enables, in view of the add-ons pre-installed on it, access via structured menus to links that those add-ons which, when activated by the remote control of that multimedia player, offer its users direct access to protected works without the consent of the copyright holders and must be regarded as an act of communication within the meaning of Article 3(1) of Directive 2001/29.”
“30. Such a right of a preventive nature would be deprived of its effectiveness if it were to be held that the posting on one website of a work previously posted on another website with the consent of the copyright holder did not constitute a communication to a new public. Such a posting on a website other than that on which it was initially posted might make it impossible or at least much more difficult for the holder of a right of a preventive nature to require the cessation of that communication, if necessary by removing the work from the website on which it was posted with his consent or by revoking the consent previously given to a third party. 31. Thus, it is clear that, even if the holder of the copyright holder decides no longer to communicate his work on the website on which it was initially communicated with his consent, that work would remain available on the website on which it had been newly posted. The Court has already held that the author of a work must be able to put an end to the exercise, by a third party, of rights of exploitation in digital format that he holds on that work, and to prohibit him from any future use in such a format, without having to submit beforehand to other formalities (see, by analogy, … Soulier …). 32. Second, Article 3(3) of Directive 2001/29 specifically provides that the right of communication to the public referred to in Article 3(1) of that directive is not exhausted by any act of communication to the public or making available to the public within the meaning of that provision. 33. To hold that the posting on one website of a work previously communicated on another website with the consent of the copyright holder does not constitute making available to a new public would amount to applying an exhaustion rule to the right of communication. 34. In addition to the fact that it would be contrary to the wording of Article 3(3) of Directive 2001/29, that rule would deprive the copyright holder of the opportunity to claim an appropriate reward for the use of his work, set out in recital 10 of that directive, even though, as the Court stated, the specific purpose of the intellectual property is, in particular, to ensure for the rightholders concerned protection of the right to exploit commercially the marketing or the making available of the protected subject matter, by the grant of licences in return for payment of an appropriate reward for each use of the protected subject matter (see, to that effect, [FAPL] …). 35. Taking account of those elements, it must be held, in the light of [Svensson, GS Media and Pirate Bay], that the posting of a work protected by copyright on one website other than that on which the initial communication was made with the consent of the copyright holder, in circumstances such as those at issue in the main proceedings, must be treated as making such a work available to a new public. In such circumstances, the public taken into account by the copyright holder when he consented to the communication of his work on the website on which it was originally published is composed solely of users of that site and not of users of the website on which the work was subsequently published without the consent of the rightholder, or other internet users.”
“In the present case, since the making available of an e-book is … generally accompanied by a user licence authorising the user who has downloaded the e-book concerned only to read that ebook from his or her own equipment, it must be held that a communication such as that effected by Tom Kabinet is made to a public that was not already taken into account by the copyright holders and, therefore, to a new public ….”
“40. In particular, if a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place on the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to obtain access to the work transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly their authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is currently available on that site only to a restricted public, whereas it is accessible on another website without the copyright holders’ authorisation (… Svensson …, paragraph 31). 41. The main proceedings are precisely concerned with a situation where the copyright holder is seeking to make the grant of a licence subject to the implementation of measures to restrict framing in order to limit access to his or her works from websites other than those of his or her licensees. In such circumstances, that copyright holder cannot be regarded as having consented to third parties being able freely to communicate his or her works to the public. 42. Therefore, in accordance with the case-law cited in paragraph 38 of the present judgment, by adopting, or by obliging licensees to employ, technological measures limiting access to his or her works from websites other than that on which he or she has authorised communication to the public of such works, the copyright holder is to be deemed to have expressed his or her intention to attach qualifications to his or her authorisation to communicate those works to the public by means of the Internet, in order to confine the public for those works solely to the users of one particular website. 43. Consequently, where the copyright holder has adopted, or obliged licensees to employ, measures to restrict framing so as to limit access to his or her work from websites other than that of his or her licensees, the initial act of making available on the original website and the secondary act of making available, by means of the technique of framing, constitute different communications to the public, and each such act must, consequently, be authorised by the rights holders concerned (see, by analogy, … VCAST, …, paragraph 49). 44. In that regard, it cannot be inferred either from … Svensson … or from … BestWater … that posting, on a website, hyperlinks to protected works which have been made freely available on another website, but without the consent of the copyright holders for those works, is not a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29. On the contrary, those decisions confirm the importance of such authorisation in the light of that provision, which specifically provides that each act of communication of a work to the public must be authorised by the copyright holder (see, to that effect, … GS Media …, paragraph 43).” 121.The Court then said: “46. It must be made clear that, in order to ensure legal certainty and the smooth functioning of the internet, the copyright holder cannot be allowed to limit his or her consent by means other than effective technological measures, within the meaning of Article 6(1) and (3) of Directive 2001/29 (see, in that regard, … Nintendo and Others, C-355/12, EU:C:2014:25, paragraphs 24, 25 and 27). In the absence of such measures, it might prove difficult, particularly for individual users, to ascertain whether that right holder intended to oppose the framing of his or her works. To do so might prove even more difficult when that work is subject to sub-licences (see, by analogy, ... GS Media …, paragraph 46). 47. Further, in such circumstances, as stated by the Advocate General in points 73 and 84 of his Opinion, the public which was taken into consideration by the copyright holder when he or she authorised the communication of his or her work on the website on which that work was initially published consists solely of the users of that site, and not the users of the website on which the work has been subsequently framed without the authorisation of the copyright holder, nor other internet users (see, by analogy, …, Renckhoff, …, paragraph 35).” … Nintendo and Others, C-355/12, EU:C:2014:25, paragraphs 24, 25 and 27). In the absence of such measures, it might prove difficult, particularly for individual users, to ascertain whether that right holder intended to oppose the framing of his or her works. To do so might prove even more difficult when that work is subject to sub-licences (see, by analogy, ... GS Media …, paragraph 46). or she authorised the communication of his or her work on the website on which that work was initially published consists solely of the users of that site, and not the users of the website on which the work has been subsequently framed without the authorisation of the copyright holder, nor other internet users (see, by analogy, …, Renckhoff, …, paragraph 35).”
“In Svensson when a work is published on a website freely accessible by anyone all potential recipients are part of the public taken into account by the copyright owner when publication was authorised, whereas in Renckhoff the very same act by the copyright owner only takes into account users of the site and users of other sites (i.e. not the whole world).”
“ii) An important distinction is between a case in which a work has been placed on the internet with the consent of the relevant rights holder and a case in which there has been no such consent. If the initial posting of the work was done with the relevant consent then it is itself an act of communication to the public and any subsequent alleged acts of communication to the public have to be analysed with that in mind. For a second act of communication to the public on the internet to be an infringement in that case, there must be a new public (or new technical means) and for the former to be determined one must work out what public was taken into account when the first act of communication took place. iv) However the question of what public was taken into account when a work was the subject of a first communication to the public cannot be answered without knowing the nature of the subsequent act of communication which is alleged to infringe (Svensson and Renckhoff). One does not simply ask – what public was taken into account? – rather one has to ask – were the public to whom the act of communication complained of is addressed taken into account in giving the consent to the first act of communication? v) Approached that way, in a case in which a photograph is taken from one website and reposted on a second website, one asks: were visitors to the second website who will encounter the photograph posted on that website taken into account when the consent to the posting of the photograph on the first website was given? The answer may well be no because the rights holder should only be taken to have consented to the work appearing on the first website and being seen posted on that first site by visitors to that first site, and not be taken to have consented to the work being seen posted on a second website by visitors to that second website, who amount to a different class of visitors (Renckhoff). vi) By the same token, in a case in which there is, on one website (A), a link to a photograph posted on another website (B), one asks: were visitors to website A who will encounter that link taken into account when the consent to the posting on the photograph on website B was given? The answer may well be yes because the rights holder should be taken to have understood that the internet includes that sort of linking and therefore to have consented to those links appearing on other websites and being seen by anyone on the internet (Svensson).” asks: were visitors to website A who will encounter that link taken into account when the consent to the posting on the photograph on website B was given? The answer may well be yes because the rights holder should be taken to have understood that the internet includes that sort of linking and therefore to have consented to those links appearing on other websites and being seen by anyone on the internet (Svensson).”
“It is therefore necessary to conclude, as did the Court in the judgment in Renckhoff, that the public which was taken into account by the copyright holder when making a work available on a website is composed of the public which visits that site. Such a definition of the public taken into account by the copyright holder actually reflects, in my view, the reality of the internet. Although a freely accessible website may in theory be visited by any internet user, in practice the number of potential users likely to access it, while admittedly variable, is approximately determined. The copyright holder takes into account the extent of that circle of potential users in authorising the making available of his or her work. This is important in particular when the work is made available under a licence, since the potential number of presumptive visitors may be an important factor in determining the price of the licence.”
“Although the individual dimensions of the question need to be considered, ultimately the assessment of whether a party's actions amount to a ‘communication to the public’ is an individualised and case specific assessment which must be carried out as a whole.”
“137. The starting point in answer to this question must be the scope of the deemed consent. The most that this should be taken to be is a ratification of the work’s appearance on the internet in the radio station stream in a manner which gives rise to the obligation to pay royalties under the local law. In other words it should be seen as deemed consent to the work appearing on the internet in a manner aimed either at users of the local website in question or, at most, at users in the locality in question as a whole. In neither case does this involve ratification of an act targeted to the UK, albeit that one has to recognise that the activity does in fact make the works freely available to internet users everywhere if they care to look for the relevant stream. 138. Accordingly, once the streams in the Category 3 stations are freely available on the internet, it is an inherent aspect of the function of the internet that they could be indexed by conventional search engines or linked to by publishers of conventional websites. The operation of conventional search engines and linking on conventional websites is something inherently taken into account when a work is placed on the internet. 139. Therefore it is appropriate to analyse the facts on the footing that the whole internet public, insofar as they encounter a link to a Category 3 station which is provided either by a conventional search engine or some other conventional sort of website, has been taken into account. It is an inherent aspect of making this material available on the internet that that sort of linking is likely to happen. 140. On the other hand, absent evidence to the contrary, there is no reason why the kind of public to whom TuneIn’s system is addressed should have been taken into account. TuneIn’s activity is a different kind of act of communication and is targeted at a particular public, i.e. users in the UK. 141. Putting this together, I hold that the public to whom TuneIn’s act of communication complained of is addressed cannot be said to have been taken into account in relation to the first act of communication. Accordingly TuneIn’s act of communication in relation to Category 3 is to a new public ...” communication in relation to Category 3 is to a new public ...”
“… when the posting of hyperlinks is carried out for profit, it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.”
“that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder”
“175. I find that the inclusion of this feature makes a material difference to the nature of TuneIn’s act of communication via the app, at least when one considers users contemplating its use (and there are a substantial number of those). When that sort of user selects and listens to an internet radio station using the app which includes the recording function it seems to me that one cannot describe TuneIn’s service as nothing more than a form of linking, conventional or unconventional. A user who wants to create a library of music by a particular artist can use TuneIn’s Pro app to search for internet radio stations playing that artist, listen to the streams and make recordings of the claimants’ works on their device. It is TuneIn’s intervention which makes feasible something which would be wholly impractical for a user otherwise. 176. TuneIn argued that the claimants case muddled up two rights, the right of communication to the public and the reproduction right. I do not accept that. Making the recording relies on the act of communication undertaken by TuneIn. In providing a user with an integrated means of finding internet radio stations, playing them through the TuneIn app and then recording and playing back individual works the subject of the claimant's rights, TuneIn has converted the internet radio station’s streaming service into a permanent download on demand service. 177. Although of course it is true that the internet is the medium by which the stream is conveyed to the user’s device, I find that the Pro app itself, containing the integrated function, running on the user’s device is a new and different technical means from that by which the original internet radio station was provided. That finding applies to all three of Categories 1, 2 and 3.”
“… ‘authorise’ means the grant or purported grant of the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances.”
“First, the defendant must have assisted the commission of an act by the primary tortfeasor; secondly, the assistance must have been pursuant to a common design on the part of the defendant and the primary tortfeasor that the act be committed; and thirdly, the act must constitute a tort as against the claimant.”
“193. As before I will start with Category 3. I take it the Category 3 internet radio stations are not targeted at the UK when they are published by the provider because if they were then the provider would already be committing an act of UK copyright infringement. The effect of TuneIn's service is that the internet radio station, assuming a UK user selects it, is targeted at the UK. In my judgment when that happens the provider now commits an act of UK copyright infringement because the provider is, in the UK, communicating the work to the public. 194. For the providers who sign up to the TuneIn service, there is nothing surprising about this result. The fact the UK is one of the states targeted by TuneIn is no secret. However this result will be true even for a provider whose streams are on TuneIn's service as a result of a web-crawler and who never signed up to TuneIn's service since (aside from GS Media, which is looking at a different aspect of this) s20 is a tort of strict liability under UK law.”
“In terms of a user’s use of the recording function which amounts to infringement, the claimants submitted that TuneIn was very different from the situation in Amstrad, which concerned the provider of a machine which could hold two cassette tapes and could be used easily to make copies of one cassette on another one. I agree. The Pro app is not just a recording device. It also includes a curated repertoire of a large number of music internet radio stations. The purchaser of the Pro app would, reasonably, understand that TuneIn had sold them the Pro app (with its built in recording function) in order to allow them to record audio content offered by the TuneIn Radio service. There is also a point on the degree of control exercised by TuneIn. Only internet radio stations provided by TuneIn can be recorded and TuneIn can disable the record function at a station by station level. With the recording function enabled in the manner it is by TuneIn, infringement is inevitable.”
“ … it is well established that this court should not refuse to follow an earlier decision of this court or the House of Lords merely because we would have decided it differently: see per Lord Bingham of Cornhill in Horton v Sadler[2007] 1 AC 307 , para 29. More than that is required, not least because of the desirability of certainty in the law, as just discussed. However, as Lord Bingham said in the same passage, while former decisions of the House are normally binding ... too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the development of the law. … This court should be very circumspect before accepting an invitation to invoke the 1966 Practice Statement.”