Saturday, 9 January 2016

Precedent ~ UKSC v JCPC ~ Willers v Gubay

UKSC hearing listed for 7th March -

The law of precedent is a notable feature of common law judicial decisions.  Decisions on the law handed down by the House of Lords / Supreme Court of the U.K. are binding upon all courts below (i.e. Court of Appeal, High Court etc).  It is the decision on the law that is binding - the ratio decidendi (or, simply, ratio).  Decisions of the Judicial Committee of the Privy Council are not technically binding on the courts of England and Wales but they are said to be "persuasive".


In the recent case of Willers v Gubay [2015] EWHC 1315, Miss Amanda Tipples QC (sitting as a High Court Judge in the Chancery Division) amplified the position regarding precedent at para 15:

"(2) The doctrine of precedent of English Law requires that a judge of the High Court should respect (but is not bound to follow) a decision of another judge of the High Court, but must follow decisions of the Court of Appeal and the House of Lords and now the Supreme Court: see, for example, Policy Authority for Huddersfield v Watson [1947] KB 842, CA per Lord Goddard at p 848.

The House of Lords and now the Supreme Court is not bound by its own decisions, but may depart from them in the circumstances identified in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

(3) The Judicial Committee of the Privy Council is not a court. Rather, its function is to advise Her Majesty on "appeals to Her Majesty in Council" from any court in any colony (see section 1 of the Judicial Committee Act 1844). The Privy Council does not therefore appear in the hierarchy of courts in England and Wales save exceptionally, by way of example, in appeals from Ecclesiastical cases where its decisions will be binding on the courts in that hierarchy.

(4) The High Court or the Court of Appeal should not follow a decision of the Privy Council in place of a decision of the House of Lords, unless the circumstances are quite exceptional and the court is satisfied that in practice the result would be a foregone conclusion: In re Spectrum Plus Ltd (in liquidation) [2004] Ch 337, CA at paras 57-59, pp 373G-374C, per Lord Phillips MR; R v James [2006] QB 588, CA, at paras 38-44, pp 600F-602A, per Lord Phillips CJ; Abou-Rahmah v Abacha [2007] Bus LR 220, at para 68, p 241B, per Arden LJ; Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2012] Ch 453, CA at paras 72 to 74, pp 478E-H, per Lord Neuberger MR."

Willers v Gubay is concerned with the question of whether there exists, in English law, a tort of malicious prosecution of CIVIL (as opposed to criminal) proceedings.  If there is no such tort then Mr Willers' claim would have to be struck out.

The High Court was bound by the House of Lords (unanimous) decision in Gregory v Portsmouth City Council [2000] 1 AC 419 (Lords Browne-Wilkinson, Nicholls, Steyn, Hobhouse and Millett).  In that case the Lords ruled that there is no tort of malicious prosecution of civil proceedings.

There is conflicting Privy Council authority in the more recent majority decision in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 (Lord Neuberger, Lady Hale, Lords Kerr, Wilson and Sumption).  The majority judgments were those of Lord Wilson, Lady Hale and Lord Kerr.  For a useful article on the case see Christopher Russell's article - Malicious Prosecution divides the Privy Council.   The Crawford case arose out of storm damage (Hurricane Ivan 2004) to residential property located in the Cayman Islands. All of the judges who sat in the Crawford appeal are Justices of the Supreme Court of the U.K.
Miss Tipples held that the Crawford authority was not binding on the High Court and that she should follow the House of Lords decision in Gregory.  Consequentially, Miss Tipples ruled that the claim should be struck out.  Mr Willers appealed to the Supreme Court using the procedure to "leapfrog" the Court of Appeal (which would be bound by the decision in Gregory).

At the time writing, this case is listed to be heard in the Supreme Court on 7th March - (see website) - where the issues are stated to be:
  1. Whether there exists or should exist in English law a tort of malicious prosecution of civil proceedings.
  2. 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.
Privy Council cases are usually heard by a Board made up of Justices of the Supreme Court of the U.K. and, in the recent cases of Jogee and Ruddock, a Supreme Court appeal and a Privy Council appeal were heard together.

The Privy Council website - Judges of the JCPC - states::

"Since 1876, the Law Lords (now UK Supreme Court Justices) have been the permanent judges of the JCPC.  In addition, Privy Counsellors who are (or have been) judges of the Court of Appeal of England and Wales, the Inner House of the Court of Session in Scotland, or of the Court of Appeal in Northern Ireland and judges of superior courts in certain Commonwealth nations are all eligible to sit on the Judicial Committee, as long as they are under the age of 75."

The precise statement of law on who is eligible to sit is in section 1 of the Judicial Committee Act 1833 which refers to those eligible to sit as "members" of the Judicial Committee.

Interesting links:

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