As you were …. well, almost

On 20 July 2016 the Supreme Court handed down an important judgment on the status of decisions of the Judicial Committee of the Privy Council (“JCPC”) in Willers v Joyce and another (in substitution for and in their capacity as executors of Albert Gubay (deceased)) [2016] UKSC 44.

The appeal came from the decision of Deputy High Court Judge Amanda Tipples QC, who had struck out Mr Willers’ claim against Mr Gubay for malicious prosecution of a civil claim on the basis that she was bound to follow the House of Lords decision in Gregory v Portsmouth City [2001] 1 AC 419 rather than the more recent JCPC decision in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Limited [2014] AC 366.
Mr Willers’ disagreed with the Deputy Judge’s approach and asked the Supreme Court to decide whether the Courts of England and Wales should continue to treat decisions of the Privy Council, made by a board comprising solely of serving Supreme Court Justices who have heard full argument and made their decision on the basis of English law, as having no status as legal precedent in England and Wales. The Respondents, represented by Laytons, argued that no case had been made out to change the rules of precedent.
Lord Neuberger, with whom all 8 other Justices agreed, delivered the judgment. The appeal was dismissed and it was confirmed:

  1. In a common law system the doctrine of precedent is fundamental;
  2. Decisions on points of law by more senior courts have to be accepted by more junior courts;
  3. There is no doubt that, unless there is a decision of a superior court to the contrary effect, a court in England and Wales can normally be expected to follow a decision of the JCPC, but there is no question of it being bound to do so as a matter of precedent; and
  4. There is also no doubt that a court should not, at least normally, follow a decision of the JCPC, if it is inconsistent with the decision of another court which would otherwise be binding on it.

However, in relation to the last point, Lord Neuberger identified an exception and held that the following procedure should apply from now on:

  • The Registrar of the JCPC will draw to the President of the JCPC’s attention the fact that a party is inviting the JCPC to depart from a decision of the House of Lords, Supreme Court or Court of Appeal;
  • The President can take that fact into account when deciding on the constitution and size of the panel; and
  • Provided the point is one of English law, the members of that panel can, if they think it appropriate, decide that the earlier decision was wrong and can direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales.

The exception identified by the Court is designed to prevent future cases involving the same questions of English law being heard first by the JCPC and then by the Supreme Court, but it of course remains to be seen how the exception will work in practice and how often and in what circumstances the members will choose to give such a direction, particularly in a case such as Crawford where the split was 3:2 with Lords Neuberger and Sumption dissenting.