An English judge faced a House of Lords decision which required a claim to be struck out and a later Privy Council decision whose reasoning pointed the other way. The Supreme Court held that a decision of the Judicial Committee of the Privy Council is not binding in England and Wales and cannot displace a binding English decision. Such a decision normally carries great weight, and the Board may in a future appeal on English law expressly direct that domestic courts treat it as representing English law.
The appeal arose from a strike-out. Miss Amanda Tipples QC, sitting as a Deputy Judge, had to deal with two decisions which pulled in opposite directions. The reasoning in the House of Lords decision in Gregory v Portsmouth City Council would lead her to strike out the claim. The reasoning in the later Privy Council decision in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd would lead to a different conclusion.
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She treated Gregory as binding. Earlier English authority suggested that she could follow the Privy Council only if it was, for all practical purposes, a foregone conclusion that the Supreme Court would do the same. She did not think that outcome was a foregone conclusion, so she struck the claim out. The parties asked the Supreme Court whether that approach to the two decisions was right.
Why precedent matters
Lord Neuberger, with whom Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed and Lord Toulson agreed, started from the doctrine of precedent. In a system where judges make and develop the law, more junior courts must accept decisions on points of law by more senior courts. Otherwise the law loses coherence, clarity and predictability.
On issues of law, Circuit Judges are bound by the High Court, the Court of Appeal and the Supreme Court; High Court Judges are bound by the Court of Appeal and the Supreme Court; and the Court of Appeal is bound by the Supreme Court. The House of Lords used to be bound by its own decisions, but the 1966 Practice Statement allows the House, and now the Supreme Court, to depart from an earlier decision when it appears right to do so. Consistency remains important, so that power is to be used very circumspectly. The Court of Appeal is bound by its own decisions, subject to the limited exceptions in Young v Bristol Aeroplane Co Ltd. A High Court judge is not strictly bound by another High Court judge, but should generally follow such a decision unless there is a powerful reason not to.
The Privy Council is outside that hierarchy
The Judicial Committee of the Privy Council is the final appellate court for a number of Commonwealth countries, the British Overseas Territories, the Channel Islands and the Isle of Man. It is not a court of any part of the United Kingdom. It almost always applies the common law, and its panels are normally composed wholly or mostly of Justices of the Supreme Court.
Lord Neuberger drew three consequences. First, a Privy Council decision cannot bind a judge in England and Wales, and cannot override a binding decision of an English court, still less a decision of the House of Lords or the Supreme Court. Secondly, because of who sits and the law they apply, a Privy Council decision, at least on a common law issue, should normally be treated as of great weight and persuasive value. Thirdly, when applying the law of England and Wales, the Privy Council should regard itself as bound by a decision of the House of Lords or the Supreme Court. That qualification matters: in some jurisdictions the applicable common law is local common law, which may differ from English law. Where the point is not English law, the Board is not automatically bound by a House of Lords or Supreme Court decision.
The Court distinguished the persuasive weight of a Privy Council ruling from the binding force of a domestic precedent.
No “foregone conclusion” exception
An English court can therefore normally be expected to follow a Privy Council decision where no binding domestic decision stands in the way. It should not follow one that is inconsistent with a decision binding under the ordinary rules of precedent.
The difficult question was whether that second rule is absolute, or whether a judge may depart from it if satisfied that a higher English court will inevitably accept the Privy Council’s view. Court of Appeal decisions, including Doughty v Turner Manufacturing Co Ltd and R v James and Karimi, supported that more flexible approach. Lord Neuberger said he was not calling those well-established authorities into question. He nevertheless concluded that, subject to one qualification, the rule should be absolute: a judge should never follow a Privy Council decision which is inconsistent with a decision otherwise binding on that judge.
A trial judge who considers a binding precedent doubtful can explain why. Whether to overturn the precedent remains for a court with power to do so.
A direction in a future Privy Council appeal
The qualification, adopting a suggestion of Lord Toulson, addresses a different situation. A party before the Privy Council may wish to argue that an earlier House of Lords, Supreme Court or Court of Appeal decision on English law was wrong. It would be unfortunate if the Board could decide that the earlier decision was wrong but could never make that conclusion effective in England and Wales.
The President of the Privy Council is the same person as the President of the Supreme Court, and Privy Council panels normally consist of Supreme Court Justices. The Board’s Practice Direction already requires an applicant or appellant to say whether the Board is being invited to depart from a House of Lords or Supreme Court decision. Lord Neuberger said that this should be expanded to cover decisions of the Court of Appeal of England and Wales.
From now on, where that Practice Direction applies, the registrar is to draw the possible invitation to the President’s attention. The President may take it into account in deciding the size and constitution of the panel. If the point is one of English law, the panel may not only decide that the earlier English decision was wrong, but may also expressly direct that domestic courts should treat the Privy Council decision as representing the law of England and Wales. Lord Neuberger accepted that this modifies what Lord Scarman had said for the Board in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd. He considered it sensible that, when applying English law, the Privy Council should be able to depart from an earlier House of Lords or Supreme Court decision to the same extent and with the same effect as the Supreme Court itself.
Scotland and Northern Ireland
The position in Scotland and Northern Ireland had not been discussed in argument. As at present advised, Lord Neuberger said that House of Lords judgments in English appeals are, in Scotland, at most highly persuasive rather than strictly binding, and that Privy Council decisions on English law could not have greater authority than that. Because the common law applies in Northern Ireland as it does in England and Wales, he thought the same principles should apply there.
The companion judgment, Willers v Joyce (No 1) [2016] UKSC 43, allowed the malicious prosecution claim to go to trial.
Verdict: The Court unanimously held that judges in England and Wales must follow a binding domestic precedent in preference to an inconsistent Privy Council decision. It set out an exceptional procedure by which the Privy Council itself can expressly direct that its decision represents English law.
