534

Willers v Joyce (No 2) (SC(E))

(SC(E)) [2016] 3 WLR

Supreme Court A

Willers v Joyce and another (No 2)

[2016] UKSC 44
2016 March 7; Lord Neuberger of Abbotsbury PSC,
July 20 Baroness Hale of Richmond DPSC, B
Lord Mance, Lord Kerr of Tonaghmore,
Lord Clarke of Stone-cum-Ebony, Lord Wilson,
Lord Sumption, Lord Reed, Lord Toulson JJSC

Judicial precedent  House of Lords decision  Conict of authority  Subsequent

decision of Judicial Committee of Privy Council  Whether subsequent decision
binding authority C
A company allegedly controlled by the defendant brought an action against the
claimant for breach of his contractual and duciary duties when acting as its director.
Following the withdrawal of the action the claimant began proceedings against the
defendant for malicious prosecution of those civil proceedings. The defendant applied
to strike out the claim on the ground that malicious prosecution of a civil action was
not actionable in England. The judge concluded that since conicting decisions had
D
been reached by the House of Lords and, later, by the Judicial Committee of the Privy
Council, she was bound to apply the House of Lords decision unless it was a foregone
conclusion that the Supreme Court would follow the Judicial Committees decision.
Since she did not consider that such an outcome was a foregone conclusion she
considered herself bound by the House of Lords decision. She struck out the claim and
issued a leapfrog certicate under section 12 of the Administration of Justice Act
1969 to enable the claimant to apply to the Supreme Court for permission to appeal
against her determination. The Supreme Court granted permission to appeal. E
On the claimants appeal
Held, (1) that the doctrine of precedent was fundamental to the coherence, clarity
and predictability of the common law system by providing a centralised hierarchical
approach with regard to decisions of the courts of England and Wales; that the
Judicial Committee of the Privy was not a court of any part of the United Kingdom
but was the nal appellate court for a number of Commonwealth countries and
although it almost always applied the common law and was composed of Privy F
Councillors who were Justices of the Supreme Court, its decisions could not be
binding on any judge of England and Wales and its decisions could not override any
decision of a court in England and Wales; but that, given the identity of the Privy
Councillors who sat in the Judicial Committee and that they applied the common
law, any Judicial Committee decision on a common law issue was to be regarded as
being of great weight and persuasive value; that the Judicial Committee was to regard
itself as bound by any decision of the House of Lords or the Supreme Court when G
applying the law of England and Wales; that unless there was a decision of a superior
court to contrary e›ect, a court in England and Wales could normally be expected,
but was not bound as a matter of precedent, to follow a Judicial Committee decision;
but that a court should not follow a Judicial Committee decision which was
inconsistent with the decision of a court which had binding e›ect; and that such a
rule was not subject to a qualication which permitted it to be disapplied where it
was considered a foregone conclusion that the view of the Judicial Committee would H
be accepted by the Court of Appeal or the Supreme Court (post, paras 4—6, 10—13,
16—18).
(2) That where, under the relevant Judicial Committee practice direction, the
Judicial Committee was to be invited to depart from a decision of the House of Lords,
the Supreme Court or the Court of Appeal and where the point at issue was one of

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[2016] 3 WLR Willers v Joyce (No 2) (SC(E))
(SC(E))

A English law, administrative arrangements should be made to enable the Judicial

Committee to determine whether the earlier decision was wrong and, if appropriate,
to direct that domestic courts should treat the Judicial Committees decision as
representing domestic law; and that in such circumstances the Judicial Committee
could depart from an earlier decision of the House of Lords or the Supreme Court to
the same extent and with the same e›ect as the Supreme Court (post, paras 19—21).
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 considered.
B Per curiam. The traditional view in Scotland has been that, subject to some
possible exceptions, judgments of the House of Lords in English appeals are at most
highly persuasive rather than strictly binding and it is impossible to see how Judicial
Committee decisions on English law can have greater authority than that. As for
Northern Ireland, given that the common law applies in the same way as it does in
England and Wales, it would appear that precisely the same principles should apply
as they do in England and Wales (post, para 22).
C
The following cases are referred to in the judgment of Lord Neuberger of
Abbotsbury PSC:
Agnew v Comr of Inland Revenue [2001] UKPC 28; [2001] 2 AC 710; [2001] 3 WLR
454, PC
Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd
[2013] UKPC 17; [2014] AC 366; [2013] 3 WLR 927; [2014] 4 All ER 8, PC
D Davis v Johnson [1979] AC 264; [1978] 2 WLR 553; [1978] 1 All ER 1132, HL(E)
Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518; [1964] 2 WLR 240;
[1964] 1 All ER 98, CA
Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345; [1977] 3 All ER 996, HL(E)
Gregory v Portsmouth City Council [2000] 1 AC 419; [2000] 2 WLR 306; [2000]
1 All ER 560, HL(E)
Howard de Walden Estates Ltd v Aggio [2007] EWCA Civ 499; [2008] Ch 26; [2007]
E 3 WLR 542; [2007] 3 All ER 910, CA
Knauer v Ministry of Justice [2016] UKSC 9; [2016] 2 WLR 672, SC(E)
London Tramways Co Ltd v London County Council [1898] AC 375, HL(E)
Mercedes Benz AG v Leiduck [1996] AC 284; [1995] 3 WLR 718; [1995] 3 All ER
929, PC
New Bullas Trading Ltd, In re [1994] 1 BCLC 485, CA
Patel v Secretary of State for the Home Department [2012] EWCA Civ 741; [2013]
F 1 WLR 63; [2012] 4 All ER 94, CA
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234; [1966] 3 All ER 77, HL(E)
R v James [2006] EWCA Crim 14; [2006] QB 588; [2006] 2 WLR 887; [2006] 1 All
ER 759, CA
Siebe Gorman & Co Ltd v Barclays Bank Ltd [1979] 2 Lloyds Rep 142
Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC
210; [1977] 3 WLR 818; [1977] 3 All ER 803, HL(E)
Spectrum Plus Ltd, In re [2004] EWHC 9 (Ch); [2004] Ch 337; [2004] 2 WLR 783;
G
[2004] 1 All ER 981; [2005] UKHL 41; [2005] 2 AC 680; [2005] 3 WLR 58;
[2005] 4 All ER 209, HL(E)
Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80; [1985] 3 WLR
317; [1985] 2 All ER 947, PC
Willers v Joyce [2016] UKSC 43; [2016] 3 WLR 477, SC(E)
Young v Bristol Aeroplane Co Ltd [1944] KB 718, CA
H The following additional cases were cited in argument:
Abou-Rahmah v Abacha [2006] EWCA Civ 1492; [2007] Bus LR 220; [2007] 1 All
ER (Comm) 247, CA
Attorney General for Hong Kong v Reid [1994] 1 AC 324; [1993] 3 WLR 1143;
[1994] 1 All ER 1, PC

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Attorney General for Jersey v Holley [2005] UKPC 23; [2005] 2 AC 580; [2005] A
3 WLR 29; [2005] 3 All ER 371, PC
Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37;
[2006] 1 WLR 1476; [2006] 1 All ER 333, PC
Beamish v Beamish (1861) 9 HL Cas 274
British Coal Corpn v The King [1935] AC 500, PC
Cambridge Gas Transportation Corpn v O–cial Committee of Unsecured Creditors
of Navigator Holdings plc [2006] UKPC 26; [2007] 1 AC 508; [2006] 3 WLR B
689; [2006] 3 All ER 829, PC
Colonial Bank of Australasia Ltd v Marshall [1906] AC 559, PC
Daraydan Holdings Ltd v Solland International Ltd [2004] EWHC 622 (Ch); [2005]
Ch 119; [2004] 3 WLR 1106; [2005] 4 All ER 73
de Lasala v de Lasala [1980] AC 546; [1979] 3 WLR 390; [1979] 2 All ER 1146, PC
Director of Public Prosecutions v Smith [1961] AC 290; [1960] 3 WLR 546; [1960]
3 All ER 161, HL(E) C
FHR European Ventures LLP v Mankarious [2014] UKSC 45; [2015] AC 250;
[2014] 3 WLR 535; [2014] 4 All ER 79, SC(E)
Franconia, The (1877) 2 PD 163, CA
Frankland v The Queen [1987] AC 576; [1987] 2 WLR 1251, PC
Fy›es Group Ltd v Templeman [2000] 2 Lloyds Rep 643
Hyam v Director of Public Prosecutions [1975] AC 55; [1974] 2 WLR 607; [1974]
2 All ER 41, HL(E)
D
I Congreso del Partido [1978] QB 500; [1977] 3 WLR 778; [1978] 1 All ER 1169
Ibralebbe v The Queen [1964] AC 900; [1964] 2 WLR 76; [1964] 1 All ER 251, PC
Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions
[1973] AC 435; [1972] 3 WLR 143; [1972] 2 All ER 898, HL(E)
Lister & Co v Stubbs (1890) 49 Ch D 1, CA
London Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC 15,
HL(E)
Macintosh v Dun [1908] AC 390, PC E
Martin v Mackonochie (1879) 4 QBD 697, CA
Merchant Shipping Co Ltd v Armitage (1873) LR 9 QB 99
Miliangos v George Frank (Textiles) Ltd [1976] AC 443; [1975] 3 WLR 758; [1975]
1 All ER 801, HL(E)
Morelle Ltd v Wakeling [1955] 2 QB 379; [1955] 2 WLR 672, CA
Owners of the Steamship Beta v Tiussaint Rollando (1869) LR 2 PC 447, PC
Quartz Hill Consolidated Gold Mining Co v Eyre (1883) 11 QBD 674 F
R v Jogee [2016] UKSC 8; [2016] 2 WLR 681;[2016] 1 All ER 1, SC(E)
R v Moloney [1985] AC 905; [1985] 2 WLR 648; [1985] 1 All ER 1025, HL(E)
R v Smith (Morgan) [2001] 1 AC 146; [2000] 3 WLR 654; [2000] 4 All ER 289,
HL(E)
Reid, Hewitt and Co v Joseph [1918] AC 717, HL(E)
Rubin v Euronance SA [2012] UKSC 46; [2013] 1 AC 236; [2012] 3 WLR 1019;
[2013] Bus LR 1; [2013] 1 All ER 521, SC(E) G
Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347;
[2012] Ch 453; [2011] 3 WLR 1153; [2011] Bus LR 1126; [2011] 4 All ER 335,
CA
Smith v Brown (1871) LR 6 QB 729
Smith v Leech Brain & Co Ltd [1962] 2 QB 405; [1962] 2 WLR 148; [1961] 1 All ER
1159
Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146; [1974] 2 WLR 176; [1974] 1 All H
ER 209, CA
Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164; [2002] 2 WLR 802;
[2002] 2 All ER 377, HL(E)
Worcester Works Finance Ltd v Cooden Engineering Co Ltd [1972] 1 QB 210; [1971]
3 WLR 661; [1971] 3 All ER 708, CA

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Lord Neuberger of Abbotsbury PSC

A APPEAL from Amanda Tipples QC sitting as a deputy judge of the Chancery

Division
By a claim form dated 3 March 2014 the claimant, Peter Willers, began
proceedings against the defendant, Albert Gubay, claiming damages for
malicious prosecution of a civil claim brought against him on 24 March
2010 by Langstone Leisure Ltd as its statutory director for breaches of his
contractual and duciary duties towards it, such claim having been
B
discontinued on 28 March 2013 and costs having been awarded in his
favour on the standard basis pursuant to the order of Newey J made on
16 April 2013. By particulars of claim the claimant sought damages against
the defendant for damage to his reputation, health, and earnings, and for the
excess of his legal expenses over the amount of the judges costs order in
respect of the discontinued action.
C By an application dated 11 December 2014 the defendant sought an order
striking out the claim on the sole ground that malicious prosecution of civil
proceedings was not actionable in England. On 9 June 2015 Amanda
Tipples QC, sitting as a deputy judge of the Chancery Division, struck out
the action and granted the claimant a certicate under section 12 of the
Administration of Justice Act 1969.
On 28 October 2015 the Supreme Court (Lord Neuberger of
D
Abbotsbury PSC, Baroness Hale of Richmond DPSC and Lord Wilson JSC)
granted the claimant permission to appeal, pursuant to which he appealed.
On 22 February 2016, following the defendants death, his executors, Elena
Joyce and John Nugent, were substituted as defendants to the action and
respondents to the appeal.
The issue before the Supreme Court, as set out in the statement of facts
E and issues agreed between the parties, was whether the courts of England
and Wales should continue to treat decision of the Judicial Committee of the
Privy Council, made by a Board comprising solely serving Supreme Court
justices, who had heard full argument and made their decision on the basis of
English law, as having no status as legal precedent in England and Wales.
The facts are stated in the judgment of Lord Neuberger of
Abbotsbury PSC.
F
John McDonnell QC, Hugo Page QC and Adam Chichester-Clark
(instructed by De Cruz) for the claimant.
Bernard Livesey QC and Paul Mitchell QC (instructed by Laytons
Solicitors) for the defendant.
The court took time for consideration.
G
20 July 2016. LORD NEUBERGER OF ABBOTSBURY PSC (with
whom BARONESS HALE OF RICHMOND DPSC, LORD MANCE,
LORD KERR OF TONAGHMORE, LORD CLARKE OF STONE-CUM-
EBONY, LORD WILSON, LORD SUMPTION, LORD REED and LORD
TOULSON JJSC agreed) handed down the following judgment.
H
1 The appeal in Willers v Joyce [2016] 3 WLR 477 raises an important
issue, namely the status of decisions of the Judicial Committee of the Privy
Council (the JCPC) in the courts of England and Wales. In her clear and
informative judgment, the Deputy Judge, Miss Amanda Tipples QC,
explained that there was a House of Lords decision, Gregory v Portsmouth

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City Council [2000] 1 AC 419, whose reasoning would lead her to strike out A
the claim, but that there was a more recent decision of the JCPC, Crawford
Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014]
AC 366, whose reasoning would lead to a di›erent conclusion. She
concluded, on the basis of earlier decisions of the rst instance and appellate
courts of England and Wales, that the position was as follows. If there was a
decision of the House of Lords (or the Supreme Court) which was binding on
B
her as a rst instance judge, she could only follow [a] decision of the Privy
Council to the opposite e›ect if, for all practical purposes, it is a foregone
conclusion that the Supreme Court will follow the decision of the Privy
Council[2015] EWHC 1315 (Ch) at [26].
2 She then explained that, as a rst instance judge, she was, at least in
principle, bound by Gregory v Portsmouth and, in accordance with the
doctrine of precedent, [could] not follow Crawford v Sagicor, and therefore C
she should hold that the instant claim must failpara 7. However, in the
light of authority, she accepted that she could take a di›erent course if, for
all practical purposes, it is a foregone conclusion that the Supreme Court will
follow the decision of the Privy Council in Crawford v Sagicorpara 26.
However, she did not consider that such an outcome was a foregone
conclusion and accordingly she struck out the claimparas 69—71.
D
3 Before us, the parties disagree whether the deputy judge adopted the
right approach to the House of Lords decision in Gregory v Portsmouth and
the later JCPC decision in Crawford v Sagicor as to the extent to which they
were persuasive or binding so far as she was concerned.
4 In a common law system, where the law is in some areas made, and
the law is in virtually all areas developed, by judges, the doctrine of
precedent, or as it is sometimes known stare decisis, is fundamental. E
Decisions on points of law by more senior courts have to be accepted by
more junior courts. Otherwise, the law becomes anarchic, and it loses
coherence clarity and predictability. Cross and Harris in in their instructive
Precedent in English Law, 4th ed (1991), p 11, rightly refer to the highly
centralised nature of the hierarchy of the courts of England and Wales, and
the doctrine of precedent is a natural and necessary ingredient, or
F
consequence, of that hierarchy.
5 The doctrine is, of course, seen in its simplest and most familiar form
when applied to the hierarchy of courts. On issues of law, (i) circuit judges are
bound by decisions of High Court judges, the Court of Appeal and the
Supreme Court, (ii) High Court judges are bound by decisions of the Court of
Appeal and the Supreme Court, and (iii) the Court of Appeal is bound by
decisions of the Supreme Court. (The rule that a circuit judge is bound by a G
decision of a High Court judge is most clear from a Note included at the end
of the judgment in Howard De Walden Estates Ltd v Aggio [2008] Ch 26.)
6 The position is rather more nuanced when it comes to courts of
co-ordinate jurisdiction.
7 Until 50 years ago, the House of Lords used to be bound by its
previous decisionssee e g London Tramways Co Ltd v London County
H
Council [1898] AC 375. However, that changed in 1966 following the
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which
emphasised that, while the Law Lords would regard their earlier decisions as
normally binding, they would depart from them when it appears right to
do so. The importance of consistency in the law was emphasised by Lord

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Lord Neuberger of Abbotsbury PSC

A Wilberforce in Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349,

when he explained that the Practice Statement should not be invoked to
depart from an earlier decision, merely because a subsequent committee of
Law Lords take a di›erent view of the law: there has to be something more.
Having said that, the Practice Statement has been invoked on a number of
occasions in the past half-century, most recently in Knauer v Ministry of
Justice [2016] 2 WLR 672, where, at paras 21—23, it was emphasised that,
B
because of the importance of the role of precedent and the need for certainty
and consistency in the law, the Supreme Court should be very circumspect
before accepting an invitation to invoke the 1966 Practice Statement.
8 The Court of Appeal is bound by its own previous decisions, subject to
limited exceptions. The principles were set out by the Court of Appeal in a
well known passage (which was approved by the House of Lords in Davis v
C Johnson [1979] AC 264) in Young v Bristol Aeroplane Co Ltd [1944] KB
718, 729—730:
[The Court of Appeal] is bound to follow previous decisions of its
own as well as those of courts of co-ordinate jurisdiction. The only
exceptions to this rule . . . are . . . (1) The court is entitled and bound to
decide which of two conicting decisions of its own it will follow. (2) The
D court is bound to refuse to follow a decision of its own which, though not
expressly overruled, cannot, in its opinion, stand with a decision of the
House of Lords. (3) The court is not bound to follow a decision of its own
if it is satised that the decision was given per incuriam.
9 So far as the High Court is concerned, puisne judges are not
technically bound by decisions of their peers, but they should generally
E follow a decision of a court of co-ordinate jurisdiction unless there is a
powerful reason for not doing so. And, where a rst instance judge is faced
with a point on which there are two previous inconsistent decisions from
judges of co-ordinate jurisdiction, then the second of those decisions should
be followed in the absence of cogent reasons to the contrary: see Patel v
Secretary of State for the Home Department [2013] 1 WLR 63, para 59.
I would have thought that circuit judges should adopt much the same
F
approach to decisions of other circuit judges.
10 The question to be addressed in this appeal is the e›ect of decisions
of the JCPC. Although the function of the JCPC has varied somewhat since
its creation by the Judicial Committee Act 1833, this case is concerned with
its function as the nal appellate court for a number of Commonwealth
countries, the 14 British Overseas Territories, the Channel Islands and the
G Isle of Man. In that capacity, the JCPC advises the monarch on the disposal
of appeals or (in the case of republics) determines the disposal of appeals.
Accordingly, the JCPC is not a court of any part of the United Kingdom.
11 Having said that, the JCPC almost always applies the common law,
and either all or four of the ve Privy Counsellors who normally sit on any
appeal will almost always be Justices of the Supreme Court. This reects the
position as it has been for more than 100 years, following the Appellate
H
Jurisdiction Act 1876, which created the Lords of Appeal in Ordinary (i e the
Law Lords), who thereafter constituted the majority of the Privy Counsellors
who sat in the JCPC, until the creation of the Supreme Court in October 2009.
12 Three consequences have been held to follow from this analysis, at
least as a matter of logic. First, given that the JCPC is not a UK court at all,

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Lord Neuberger of Abbotsbury PSC

decisions of the JCPC cannot be binding on any judge of England and Wales, A
and, in particular, cannot override any decision of a court of England and
Wales (let alone a decision of the Supreme Court or the Law Lords) which
would otherwise represent a precedent which was binding on that judge.
Secondly, given the identity of the Privy Counsellors who sit on the JCPC and
the fact that they apply the common law, any decision of the JCPC, at least on
a common law issue, should, subject always to the rst point, normally be B
regarded by any judge of England and Wales, and indeed any Justice of the
Supreme Court, as being of great weight and persuasive value. Thirdly, the
JCPC should regard itself as bound by any decision of the House of Lords or
the Supreme Courtat least when applying the law of England and Wales.
That last qualication is important: in some JCPC jurisdictions, the
applicable common law is that of England and Wales, whereas in other JCPC
jurisdictions, the common law is local common law, which will often be, but C
is by no means always necessarily, identical to that of England and Wales.
13 In Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC
80, 108, Lord Scarman, giving the advice of the JCPC said: Once it is
accepted . . . that the applicable law is English, the JCPC will follow a
House of Lords decision which covers the point in issue. As he explained,
the JCPC is not the nal judicial authority for the determination of English D
law. That is the responsibility of the House of Lords in its judicial capacity.
On the other hand, when the issue to be determined by the JCPC is not a
point of English law, the JCPC is not automatically bound by a decision of
the Law Lords (or the Supreme Court) even if the point at issue is one of
common law, not least because the common law can develop in di›erent
ways in di›erent jurisdictions (although it is highly desirable that all
common law judges generally try and march together). This is well E
illustrated by the decision of the JCPC in the Hong Kong case of Mercedes
Benz AG v Leiduck [1996] AC 284, where the majority refused to follow the
House of Lords decision in Siskina (Owners of cargo lately laden on board) v
Distos Cia Naviera SA [1979] AC 210.
14 In In re Spectrum Plus Ltd [2005] 2 AC 680, the House of Lords had
to consider a point on which the Court of Appeal had expressed one view in F
two cases (Siebe Gorman & Co Ltd v Barclays Bank Ltd [1979] 2 Lloyds
Rep 142 and In re New Bullas Trading Ltd [1994] 1 BCLC 485), and the
JCPC had expressed the opposite view in a subsequent New Zealand appeal:
Agnew v Comr of Inland Revenue [2001] 2 AC 710. In In re Spectrum Plus
at rst instance, the trial judge followed the JCPC decision, but the Court of
Appeal held that he had been wrong to do so, as he was bound by the earlier
Court of Appeal decisions, and they reversed him on the ground that they G
were equally bound.
15 Although the House of Lords reinstated the trial judges decision in
In re Spectrum Plus and overruled the Court of Appeal decisions in the Siebe
Gorman and New Bullas cases, the majority of the Law Lords made it clear
that the trial judge was wrong in not regarding himself as bound by those
decisions and in treating himself as entitled to follow the more recent H
decision of the JCPC. Thus, at para 93, Lord Scott of Foscote said that the
Court of Appeal had correctly said that the trial judges test:
was in conict with the Court of Appeal decision in In re New
Bullas . . . and concluded that the rules of binding precedent enabled

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Lord Neuberger of Abbotsbury PSC

A neither [the judge] nor a subsequent Court of Appeal to rule that that case
had been wrongly decided . . .
Lord Walker of Gestingthorpe expressed himself more elliptically at
para 153, where he said that the trial judge:
was correct on every point in his judgment except one, which does not
present any obstacle to your Lordships (that is as to the relative authority
B
as precedents of the New Bullas and Agnew cases).
Lord Nicholls of Birkenhead, Lord Steyn and Lord Brown of Eaton-under-
Heywood agreed with the opinions of both Lord Scott and Lord Walker.
16 There is no doubt that, unless there is a decision of a superior court
to the contrary e›ect, a court in England and Wales can normally be
expected to follow a decision of the JCPC, but there is no question of it being
C bound to do so as a matter of precedent. There is also no doubt that a court
should not, at least normally, follow a decision of the JCPC, if it is
inconsistent with the decision of a court which is binding in accordance with
the principles set out in paras 5, 8 and 9 above.
17 The di–cult question is whether this latter rule is absolute, or
whether it is subject to the qualication that it can be disapplied where a rst
D instance judge or the Court of Appeal considers that it is a foregone
conclusion that the view taken by the JCPC will be accepted by the Court of
Appeal or Supreme Court (as the case may be). There are decisions of the
Court of Appeal which support such an approachsee e g Doughty v Turner
Manufacturing Co Ltd [1964] 1 QB 518 in the civil eld and R v James [2006]
QB 588 in the criminal eld (both of which are well-established authorities
which I am not calling into question). None the less, I have concluded that it
E is more satisfactory if, subject to one important qualication which I deal
with in paras 19—20 below, the rule is absolutei e that a judge should never
follow a decision of the JCPC, if it is inconsistent with the decision of a court
which is otherwise binding on him or her in accordance with the principles set
out in paras 5, 8 and 9 above.
18 First, particularly given the importance of the doctrine of precedence
F
and highly centralised nature of the hierarchy of the courts of England and
Wales, the doctrine should be clear in its terms and simple in its application.
Secondly, as the very careful judgment of Ms Tipples QC in the present case
shows, there can be much argument and di›erence of opinion as to whether it
is a foregone conclusion that the Court of Appeal or Supreme Court will
follow a particular JCPC decision which is inconsistent with an earlier
decision of the domestic court. If there is a strict rule, there need be no such
G argument. Thirdly, even apart from this second point, there should be no
more delay or cost in having a strict and clear rule rather than a more exible
rule. Thus, if the rst instance judge follows the decision of a superior court
in this jurisdiction, she can grant a leapfrog certicate, and, if it is
appropriate, the Supreme Court can then decide to consider the issue directly.
It is hard to see why, if such a course is appropriate, it would be benecial in
terms of time or costs for the issue to be considered by the Court of Appeal.
H
Having said that, there may well be cases where the Supreme Court will
consider that it would benet from the views of the Court of Appeal, and in
such a case it can refuse to entertain the appeal pursuant to the certicate.
19 Having said that, I would adopt a suggestion made by Lord
Toulson JSC which may, in terms of strict logic, be inconsistent with the

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Lord Neuberger of Abbotsbury PSC

above analysis, but which is plainly sensible in practice and justied by A

experience (and is therefore consistent with Oliver Wendell Holmess view
of the common law). There will be appeals to the JCPC where a party wishes
to challenge the correctness of an earlier decision of the House of Lords or
the Supreme Court, or of the Court of Appeal on a point of English law, and
where the JCPC decides that the House of Lords or Supreme Court, or, as the
case may be, the Court of Appeal, was wrong. It would plainly be
B
unfortunate in practical terms if, in such circumstances, the JCPC could
never e›ectively decide that courts of England and Wales should follow the
JCPC decision rather than the earlier decision of the House of Lords or
Supreme Court, or of the Court of Appeal. In my view, the way to reconcile
this practical concern with the principled approach identied in paras 17
and 18 above is to take advantage of the fact that the President of the JCPC is
the same person as the President of the Supreme Court, and the fact that C
panels of the JCPC normally consist of Justices of the Supreme Court.
20 The JCPCs current Practice Direction, in JCPC PD 3.1.3 and 4.2.2,
already requires an applicant, or an appellant, to say whether an application
for permission to appeal, or an appeal, will involve inviting the JCPC to
depart from a decision of the House of Lords or the Supreme Court (and to
give particulars). This should be expanded to apply to decisions of the Court D
of Appeal of England and Wales.
21 In any case where the Practice Direction applies, I would hold that the
following procedure should apply from now on. The registrar of the JCPC
will draw the attention of the President of the JCPC to the fact there may be
such an invitation. 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 E
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 JCPC as representing the law of England and Wales. This is,
I accept a modication of the observations of Lord Scarman giving the
judgment of the Board in Tai Hing. However, it seems to me to be not only F
convenient but also sensible that the JCPC, which normally consists of the
same judges as the Supreme Court, should, when applying English law, be
capable of departing from an earlier decision of the Supreme Court or House
of Lords to the same extent and with the same e›ect as the Supreme Court.
22 I have not referred to the position in the courts of Scotland or of
Northern Ireland, which were (understandably) not discussed in argument,
but, at least as at present advised, the position would seem to me to be as G
follows. The traditional view in Scotland has been that, subject to some
possible exceptions, judgments of the House of Lords in English appeals are
at most highly persuasive rather than strictly binding, and I nd it impossible
to see how decisions of the JCPC on English law can have greater authority
than that. As for Northern Ireland, given that the common law applies in the
same way as it does in England and Wales, I would have thought that H
precisely the same principles should apply as they do in England and Wales.

Order accordingly.
DIANA PROCTER, Barrister

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