Willers v Joyce & Anor (Re: Gubay (deceased) No 2) [2016] UKSC 44

The Supreme Court clarified the status of Privy Council decisions in English courts. It held that domestic courts must follow binding House of Lords or Supreme Court precedent over conflicting JCPC decisions, but introduced a mechanism allowing the JCPC to expressly direct that its decision represents English law.

Facts

The appeal arose from a strike-out application in Willers v Joyce. Before Deputy Judge Miss Amanda Tipples QC, there was a House of Lords decision, Gregory v Portsmouth City Council [2000] 1 AC 419, whose reasoning would lead her to strike out the claim, and a later JCPC decision, Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366, whose reasoning pointed to a different conclusion. The Deputy Judge held she was bound by Gregory unless it was a foregone conclusion that the Supreme Court would follow the JCPC decision in Crawford v Sagicor. She concluded it was not a foregone conclusion and struck out the claim. The parties disagreed on whether she had adopted the correct approach to precedent.

Issues

The principal issue was the status of decisions of the Judicial Committee of the Privy Council (JCPC) in the courts of England and Wales, and in particular whether a first instance judge faced with a binding House of Lords or Supreme Court decision could nevertheless follow a later inconsistent JCPC decision where it was a foregone conclusion that the Supreme Court would adopt the JCPC’s view.

Arguments

The parties disputed whether the Deputy Judge had adopted the correct approach to the tension between the House of Lords decision in Gregory v Portsmouth and the later JCPC decision in Crawford v Sagicor, and the extent to which those decisions were persuasive or binding upon her.

Judgment

Lord Neuberger, with whom the other Justices agreed, restated the fundamental importance of the doctrine of precedent (stare decisis) in a common law system, observing that without it the law would become anarchic and lose coherence, clarity and predictability. He set out the conventional hierarchy: Circuit Judges are bound by High Court, Court of Appeal and Supreme Court decisions; High Court Judges are bound by the Court of Appeal and Supreme Court; the Court of Appeal is bound by the Supreme Court. The Supreme Court regards its previous decisions as normally binding but may depart from them under the 1966 Practice Statement. The Court of Appeal is bound by its own decisions subject to the exceptions in Young v Bristol Aeroplane Co Ltd. High Court judges should normally follow co-ordinate decisions absent powerful reasons.

Status of the JCPC

The JCPC is not a court of any part of the United Kingdom, so its decisions cannot bind English judges or override otherwise binding domestic precedent. However, because the JCPC almost always applies the common law and usually comprises Justices of the Supreme Court, its decisions are normally of great weight and persuasive value. The JCPC regards itself as bound by House of Lords or Supreme Court decisions when applying English law, as confirmed in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80.

The central rule

Reviewing In re Spectrum Plus Ltd [2005] 2 AC 680, Lord Neuberger concluded that a court should not follow a JCPC decision where it conflicts with otherwise binding domestic precedent. He rejected the qualification, found in cases such as Doughty v Turner Manufacturing and R v James and Karimi, that a judge could follow the JCPC where it was a ‘foregone conclusion’ that the Supreme Court would do so. The rule should be absolute, for three reasons: the doctrine of precedent should be clear and simple; assessing what is a ‘foregone conclusion’ generates argument and uncertainty; and a leapfrog certificate provides an efficient route to the Supreme Court without need for the flexible rule.

The Toulson qualification

Adopting a suggestion by Lord Toulson, Lord Neuberger introduced one important practical qualification. Where an appeal to the JCPC involves challenging the correctness of an earlier House of Lords, Supreme Court, or Court of Appeal decision on English law, and the JCPC concludes that earlier decision was wrong, the JCPC may expressly direct that domestic courts should treat the JCPC’s decision as representing the law of England and Wales. The JCPC Practice Direction (currently requiring notice where departure from a House of Lords or Supreme Court decision is to be invited) should be expanded to cover Court of Appeal decisions. The Registrar will alert the President of the JCPC, who can constitute an appropriate panel; that panel may, where the issue is one of English law, expressly direct that the JCPC decision represents English law. This modifies the position in Tai Hing but reflects the practical reality that JCPC panels normally consist of Supreme Court Justices.

Scotland and Northern Ireland

Lord Neuberger tentatively observed that, in Scotland, House of Lords decisions in English appeals are at most highly persuasive, so JCPC decisions on English law can have no greater authority. In Northern Ireland, the same principles as in England and Wales should apply.

Implications

The decision provides authoritative clarification of the doctrine of precedent in relation to JCPC decisions. The key principle is that domestic courts must follow binding House of Lords, Supreme Court or Court of Appeal authority even where a later JCPC decision points the other way. This brings certainty by removing the contested ‘foregone conclusion’ qualification. However, the judgment also creates a practical mechanism: where appropriate, the JCPC can now expressly direct that its decision represents English law, effectively allowing it (when constituted of Supreme Court Justices) to depart from earlier domestic authority with the same effect as the Supreme Court could itself. This matters greatly to practitioners and judges navigating tensions between JCPC and domestic authority, providing a clear procedural route while preserving the integrity of the doctrine of precedent. The judgment expressly does not call into question earlier authorities such as Doughty v Turner or R v James and Karimi, but recasts the general rule going forward. The observations on Scotland and Northern Ireland are provisional, having not been the subject of argument.

Verdict: The Supreme Court held that a judge should not follow a JCPC decision where it is inconsistent with an otherwise binding decision of a domestic court, save where the JCPC has expressly directed that its decision represents the law of England and Wales under the new procedure outlined. The Deputy Judge’s approach was accordingly clarified and corrected as a matter of principle.

Source: Willers v Joyce & Anor (Re: Gubay (deceased) No 2) [2016] UKSC 44