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Privy Council can decide that UK Supreme Court wrong

21 July 2016

The Supreme Court of the United Kingdom has delivered a judgment which specifies the circumstances in which the Judicial Committee of the Privy Council can decide that an earlier House of Lords or Supreme Court decision was wrong.

In Willers v Joyce [2016] UKSC 43 and 44, the Supreme Court delivered two judgments. The first, on the substantive issue, was required to decide whether a claim in malicious prosecution could be brought in relation to civil proceedings by a private person against another private person.

By the narrowest majority (5:4), the nine-judge Supreme Court decided that the claim could go to trial in its entirety.

The Privy Council issue arose because the High Court had been required to consider a House of Lords decision which conflicted with a later Judicial Committee decision.

In Gregory v Portsmouth City Council [2000] 1 AC 419, the House of Lords had rejected the contention that a claim in malicious prosecution could be brought in relation to civil proceedings. However, in Crawford Adjusters v Sagicor General Insurance [2014] AC 366, the Judicial Committee had come to the opposite conclusion.

Faced with this conflict, the English High Court Deputy Judge decided that she could only follow the Judicial Committee decision if it was a foregone conclusion that the Supreme Court would follow the Judicial Committee. She decided it was not a foregone conclusion on the facts, and followed Gregory - thereby striking out the claim.

While the Supreme Court was divided on the merits of the tort of malicious prosecution in relation to civil proceedings, it was united in its decision on the status of Judicial Committee decisions in the courts of England and Wales.

The Court President, Lord Neuberger, gave the judgment.

"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 Judicial Committee of the Privy Council, but there is no question of it being bound to do so as a matter of precedent," he says [at 16].

"There is also no doubt that a court should not, at least normally, follow a decision of the [Judicial Committee], if it is inconsistent with the decision of a court which is binding in accordance with the principles [of precedent as summarised for the different courts]."

Lord Neuberger said there was, however, an exception to this.

"There will be appeals to the [Judicial Committee] where a party wishes to challenge the correctness of an earlier decision of the House of Lords or the Supreme Court or of the Court of Appeal on a point of English law, and where the [Judicial Committee] decides that the House of Lords or Supreme Court, or, as the case may be, the Court of Appeal, was wrong. It would plainly be unfortunate in practical terms if, in such circumstances, the [Judicial Committee] could never effectively decide that courts of England and Wales should follow the [Judicial Committee] decision rather than the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal." [at 19]

In Lord Neuberger's view, the way to reconcile this practical concern with the principled approach identified "is to take advantage of the fact that the President of the [Judicial Committee] is the same person as the President of the Supreme Court", and the fact that panels of the Judicial Committee normally consist of Justices of the Supreme Court.

The Supreme Court has outlined a process by which the Judicial Committee can expressly direct that domestic courts should treat its decision as representing the law of England and Wales. This requires the Judicial Committee Registrar to advise the President that the Judicial Committee may be invited in a case to depart from a decision of the House of Lords, Supreme Court, or Court of Appeal.

it appears that the President will be expected to take this into account when selecting the panel of judges for the hearing. If the Judicial Committee decides that an earlier House of Lords, Supreme Court or Court of Appeal decision was wrongly decided, it may now expressly direct that English and Welsh courts should treat the Judicial Committee decision as representing the law.

New Zealand and the Privy Council - 22 New Zealanders are still members.

Last updated on the 16th September 2019