Supreme Court clarifies status of Privy Council decisions

The Supreme Court has confirmed that, subject to one qualification, the English courts should never follow a decision of the Privy Council if it is inconsistent with a decision that would otherwise be binding on the lower court: Willers v Joyce [2016] UKSC 44. 

There was previously some uncertainty as to whether this rule could be disapplied where the first instance judge or the Court of Appeal considered it a "foregone conclusion" that the Privy Council's view would be accepted by a superior court. The Supreme Court has rejected that approach, confirming that the rule is absolute unless the Privy Council has expressly directed that domestic courts should treat its decision as representing the law of England and Wales (under a new procedure which will be available where an appellant gives notice that it will invite the Privy Council to depart from a previous decision of the Supreme Court, House of Lords or Court of Appeal). Where there is no contradictory authority, Privy Council decisions will continue to be regarded as having great weight and persuasive value.

This question arose in the context of an appeal against a decision that the tort of malicious prosecution was not available in respect of civil, as opposed to criminal, proceedings. The first instance judge reached that conclusion on the basis that she was bound by House of Lords authority, despite a subsequent conflicting Privy Council decision. Ultimately the Supreme Court allowed the appeal by a majority (see our separate blog post on that decision). However, Lord Neuberger delivered this separate, unanimous, judgment on the question of precedent, confirming that the judge had been correct to follow the House of Lords authority.