In Willers v Joyce & anr [2016] UKSC 43, the Supreme Court has provided clarity on a previously unsettled point of the doctrine of precedent: the English courts should never follow a decision of the Privy Council if it is inconsistent with a decision that would otherwise be binding on the lower court, unless the Privy Council has expressly directed that domestic courts should treat its decision as representing the law of England and Wales.

The point arose in the context of an appeal against a decision that the tort of malicious prosecution was not available in respect of civil (as opposed to criminal) proceedings. The first instance judge, Amanda Tipples QC, reached that conclusion on the basis that she was bound by a decision of the House of Lords, despite a subsequent conflicting decision by the Judicial Committee of the Privy Council (the JCPC). The judge concluded that she could only follow a JCPC decision to the opposite effect “if, for all practical purposes, it is a foregone conclusion that the Supreme Court will follow the decision of the Privy Council” (which, on the facts, it was not). The appellant appealed and was granted a leapfrog certificate to the Supreme Court who granted permission to appeal.

By a 5:4 majority decision, the Supreme Court held that a tort of malicious prosecution is equally applicable to civil as well as criminal cases. Separately, Lord Neuberger delivered a unanimous decision on the status of JCPC decisions in England and Wales.

The JCPC

Although the function of the JCPC has varied somewhat since its creation by the Judicial Committee Act 1833, its primary function today is as the final appellate court for a number of Commonwealth countries, the 14 British Overseas Territories, the Channel Islands and the Isle of Man. The JCPC advises the monarch of the disposal of appeals or, in the case of republics, determines the disposal of appeals. Accordingly, the JCPC is not a court of any part of the United Kingdom. That said, the JCPC almost always applies the common law, and either all or four of the five Privy Counsellors who sit on any appeal will almost always be Justices of the Supreme Court.

As a matter of precedent, given the JCPC is not a UK court, its decisions cannot be binding on any judge of England and Wales. However, a JCPC decision should normally be afforded great weight and persuasive value. Conversely, the JCPC, when applying the law of England and Wales, should consider itself bound by any House of Lords or Supreme Court decision.

The decision of the Supreme Court

Lord Neuberger’s decision first sets out the doctrine of precedent applied to the hierarchy of courts in England and Wales. He highlights its “fundamental” nature; a “natural and necessary ingredient” of the common law system, but one that is rather more nuanced when it comes to courts of co‑ordinate jurisdiction, such as the JCPC. While 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 JCPC decision, there is no question of it being bound to do so as a matter of precedent. Likewise, there is also no doubt that a court should not usually follow a JCPC decision if it is inconsistent with a decision of a court which is binding in accordance with the doctrine of precedent.

The question, however, is whether that latter rule is absolute, or whether a JCPC decision can take precedence on the basis that it is a “foregone conclusion” that the Supreme Court would also follow the JCPC decision. That, as mentioned, was the decision of the High Court in Willers v Joyce. Lord Neuberger concluded it more satisfactory to take an absolute position, stating that an English court should never follow a decision of the JCPC if it is inconsistent with a decision that would otherwise be binding on the lower court.

However, Lord Neuberger carved out one exception to this: when an appeal to the JCPC challenges the correctness of an earlier decision on a point of English law (whether of the House of Lords or the Supreme Court, or of the Court of Appeal), and where the JCPC decides that the House of Lords or Supreme Court, or the Court of Appeal, may be wrong. In this instance, Lord Neuberger says, the JCPC should have the power to direct the English courts to henceforth apply the JCPC decision as precedent instead of the earlier English court decision. To support this view, it was pointed out that were this not the case, “[i]t would plainly be unfortunate in practical terms”. Moreover, this modified approach is preferable in light of the fact that the President of the JCPC is the same person as the President of the Supreme Court and that panels of the JCPC normally consist of Justices of the Supreme Court.

Accordingly Lord Neuberger directed the modification of JCPC Practice Directions 3.1.3 and 4.2.2 as follows:

• when an appeal to the JCPC involves deciding upon the correctness of an earlier decision of the House of Lords or Supreme Court, or the Court of Appeal, the registrar of the JCPC will draw the attention of the President of the JCPC to this fact; and

• the President can then take that fact into account when deciding on the constitution and size of the panel which is to hear the appeal, and the members of that panel can, if they think it appropriate, not only decide that the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal, was wrong, but also can expressly direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales.

COMMENT

This decision provides clarity and coherence to a previously unsettled issue as to whether a lower court could apply a JCPC decision if it were a “foregone conclusion” that the JCPC’s view would be accepted by a superior court. The Supreme Court has rejected that approach, confirming that the rule is an absolute one except if the JCPC has expressly directed domestic courts to treat a decision as representing the law of England and Wales. Where there is no inconsistency between the decision of a superior court and the JCPC, JCPC decisions will continue to be regarded as being of “great weight and persuasive value” (para. 12).