Earlier last week (20 July 2016), the Supreme Court handed down the judgment in Willers v Joyce  UKSC 44 which contains an important development in the precedential value of Privy Council decisions. The decision of the Supreme Court opens the door for greater clarity in applying Privy Council authority going forward.
The appeal in Willers v Joyce substantively focused on the issue of whether a claim in malicious prosecution could be brought in relation to civil proceedings by an individual against another individual.
However, it also raised the “important issue” of the status of decisions of the Judicial Committee of the Privy Council (“the Privy Council”) in the courts of England and Wales.
The specific question was whether the correct approach to the House of Lords’ decision in Gregory v Portsmouth  1 AC 419, and the later Privy Council decision in Crawford v Sagicor  AC 366 was adopted by the Deputy Judge, Miss Amanda Tipples QC. The Deputy Judge concluded that she could only follow a decision of the Privy Council which was contrary to a House of Lords’ decision “if, for all practical purposes, it is a foregone conclusion that the Supreme Court will follow the decision of the Privy Council” –  EWHC 1315 (Ch), para 26. In this particular case, the Deputy Judge did not consider that such an outcome was a foregone conclusion and accordingly struck out the claim.
In a common law system, such as England and Wales, the doctrine of precedent, also known as stare decisis, is fundamental. Put simply, decisions on points of law by more senior courts must be followed by more junior courts. In addition, the Court of Appeal is bound by its previous decisions (subject to limited exceptions) whereas the Supreme Court (and previously, the House of Lords before its appellate jurisdiction was transferred to the Supreme Court) may depart from an earlier ruling of the Supreme Court or House of Lords if “it appears right to do so”.
The function of the Privy Council is somewhat different as it is not a court of the United Kingdom but acts as a final appellate court for a number of Commonwealth countries, amongst others. The Privy Council does, however, almost always apply common law and normally sits as a panel of five judges, at least four of whom are also Justices of the Supreme Court.
In response to the question of the hierarchy between the Supreme Court (and previously, the House of Lords) and the Privy Council, Lord Neuberger stated the core principles that “High Court Judges are bound by decisions of the Court of Appeal and the Supreme Court, and … the Court of Appeal is bound by decisions of the Supreme Court” (at ). He went on to consider that “There is no doubt that a court should not, at least normally, follow a decision of the (Privy Council), if it is inconsistent with the decision of a court which is binding in accordance with the principles set out (above)” (at ).
The issue is whether this rule is absolute and, despite agreeing that it should be (at ), Lord Neuberger concluded that:
“.. the way to reconcile (the) practical concern with the principled approach is to take advantage of the fact that the President of the (Privy Council) is the same person as the President of the Supreme court, and the fact that panels of the (Privy Council) normal consist of Justices of the Supreme Court.… I would hold that the following procedure should apply from now on… the members of (the Privy Council) 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…” (at  and , our emphasis).
The judgment of the court in this case was unanimous amongst the full panel of nine (as opposed to the usual five) judges and impacts advice given where there is an issue concerning Privy Council authority, for example, indemnities (Canada Steamship Lines v R  AC 192), remoteness of damage (Wagon Mound  AC 388) and Himalaya clauses (The Eurymedon  UKPC 1).
The “foregone conclusion” test (i.e. where a judge in the High Court or Court of Appeal considers that the view taken by the Privy Council will be accepted by the Court of Appeal or Supreme Court (as the case may be)), exemplified in, e.g. Doughty v Turner Manufacturing Co Ltd  1 QB 518 in the civil field and R v James and Karimi  QB 588 in the criminal field, always placed an element of doubt as to whether it was indeed a “foregone conclusion”. The decision by the Supreme Court in this case opens the door for greater clarity.
That said, it appears to focus on future decisions, rather than those already decided and, as such, some challenges in applying the law will remain.