Precedent in English law ~ an interesting decision of the Supreme Court

On 9th January 2016 this blog looked at the High Court's decision in Willers v Gubay - post 9th January.   The basic question was whether there was a tort of malicious prosecution of CIVIL (as opposed to criminal) proceedings.  The High Court followed a House of Lords decision in which it had been that there was no such tort in English law.  However, the Judicial Committee of the Privy Council (JCPC) had held, by a majority, that there was such a tort and that was a decision of a JCPC board whose members were all judges of the Supreme Court of the UK.

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).



The conflicting JCPC authority was 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.

On 20th July 2016 the Supreme Court handed down judgment in the appeal from the High Court - Supreme Court Willers v Joyce (executor of Albert Gubay).  The Court held that there is a tort of malicious prosecution of civil proceedings.  This was a 5:4 majority decision.  The majority comprised Lady Hale and Lords Toulson, Kerr, Wilson and Clarke.  The minority were Lords Neuberger, Mance, Sumption and Reed.

Judgment - [2016] UKSC 43 (PDF

Press summary - [2016] UKSC 43 (PDF) 

The question of precedent was dealt with in a separate judgment where the court was unanimous.  

In an appeal to the JCPC that involves an issue of English law on which a previous decision of the House of Lords, Supreme Court or Court of Appeal is challenged, the members of the JCPC can, if they think it appropriate, not only decide that the previous decision was wrong, but also can expressly direct that domestic courts should treat their decision as representing the law of England and Wales. This is sensible, not least bearing in mind that the JCPC panel normally consists of the same judges as the Supreme Court.  

Judgment - [2016] UKSC 44 (PDF) 

Press summary - [2016] UKSC 44 (PDF)