Case Alert - [2016] UKSC 44

Supreme Court ruling on judicial precedent and the status of a Privy Council decision

De Cruz for appellant, Laytons for respondent

The first instance decision in this case was reported in Weekly Update 18/15. The issue in the case was whether the tort of malicious prosecution extends to the prosecution of civil, as well as criminal, proceedings. . Reliance was placed by the defendant on the House of Lords decision in Gregory v Portsmouth City Council [2000]. However, the claimant sought to rely on the more recent decision of the Privy Council in Crawford Adjusters v Sagicor General Insurance (see Weekly Update 22/13), which held that there is a tort of malicious prosecution of civil proceedings. The judge held that the House of Lords decision was binding on her but that she could follow Crawford if she was persuaded that, for all practical purposes, it is a "foregone conclusion" that the Supreme Court would eventually follow Crawford if this case is appealed to that level (although she further held that she was not so persuaded here).

By a majority of 4:1, the Supreme Court has now allowed the appeal from that decision and found that the tort of malicious prosecution includes the prosecution of civil proceedings.

The Supreme Court then went on to clarify the position regarding the status of Privy Council decisions. It held that there is no doubt that a court will usually follow a Privy Council decision (unless there is a decision of a superior court to the contrary), but it is not bound by precedent to do so. The Supreme Court went on to rule that this is an absolute rule and it cannot be disapplied where a first instance judge or the Court of Appeal considers it a foregone conclusion that the Privy Council view will be accepted by the Court of Appeal or Supreme Court (as the case may be): "I have concluded that it is more satisfactory if…the rule is absolute – ie that that a judge should never follow a decision of the Privy Council, if it is inconsistent with the decision of a court which is otherwise binding on him or her" (as per Lord Neuberger).

However, the Supreme Court also held that it should be possible for the Privy Council itself to rule that the Supreme Court (or House of Lords) or Court of Appeal was wrong and so the Privy Council decision should be followed. Accordingly, where an appellant invites the Privy Council to depart from a decision of the Supreme Court/House of Lords or Court of Appeal, the registrar of the Privy Council will draw this to the attention of the President of the Privy Council: "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, provided that the point at issue is one of English law, 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 Privy Council as representing the law of England and Wales".

In reaching this decision, the Supreme Court took into account the fact that the President of the Privy Council is also the President of the Supreme Court and that the panels of the Privy Council normally consist of Justices of the Supreme Court.