Are you sure that is the case? My understanding was that if any court had litigated the issue at all, then the QI drops away. The big loophole though is how narrowly the issue is interpreted. "Oh, I can't violate the rights of someone wearing a _yellow_ jumpsuit; I didn't know this applied to people also wearing yellow and not just blue! We never had a court case about that!"

My understanding comes from having listened to far too many 'Audit the Audit' videos while doing work. I could be mistaken, this is my understanding of the issue though.