rules-of-court appeal case-law
Can case law never appealed in a higher court be appealed and overturned?
<p>I will phrase this question in New Zealand legal terms but I am actually interested in any common law jurisdiction or any jurisdiction with <a href="https://en.wikipedia.org/wiki/Adversarial_system" rel="nofollow noreferrer">adversarial system</a>.</p>

<p>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).</p>

<p>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?</p>

<h2>Any precedent can be overturned by any court at the same or higher level in the hierarchy</h2>
<p>So, for your example of a High Court precedent, it can be overturned at Supreme Court, Court of Appeal <em>or</em> High Court levels. However, the longer a precedent is in place, the less likely it is to be overturned because <em>one</em> 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.</p>
<p>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.</p>
