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Supreme Court on judicial precedent — law students, brace yourselves for even longer reading lists

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Potentially groundbreaking public law case could heighten status of Privy Council judgments

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Law students struggle to make it through the day without complaining about how much reading they have to do — but an upcoming Supreme Court ruling could well make things even worse.

Today, the Supreme Court, led by Lord Neuberger, will hear the hugely significant case of Willers v Joyce, the pinnacle of a long running legal battle about whether or not a tort of malicious prosecution of civil proceedings exists, or should exist, in English law.

The case was heard last summer in the High Court before Miss Amanda Tipples QC. The respondent argued that there is no tort of malicious prosecution of civil proceedings in English law, citing the House of Lords case of Gregory as authority. The appellant tried to rely on a more recent decision, in which the Privy Council decided that the tort does in fact exist.

Privy Council judgments can prove persuasive in English courtrooms, but they are not legally binding in the same way as Supreme Court or House of Lords judgments. Tipples had no choice but to dismiss the appeal, even though the Privy Council decision relied upon was decided by five Supreme Court justices — Lords Neuberger, Kerr, Wilson, Sumption and Lady Hale. She granted a leapfrog certificate to appeal to the Supreme Court, and so it’s been left to the highest court in the country to untangle this messy legal dispute.

The case has moved above and beyond squabbling about whether the tort exists or not. There’s another issue being put before the court, one that may well strike fear into the heart of the average law student. Today, the bench will also consider:

Whether the Courts of England and Wales should continue to treat decisions of the Privy Council, made by a board comprising solely of serving Supreme Court Justices who have 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 respondent — represented by Bernard Livesey QC and Paul Mitchell QC — will argue that the courts should continue to value Privy Council decisions in this way, whereas the appellant — represented by John McDonnell QC, Hugo Page QC and Adam Chichester-Clark — will argue that the courts should not.

If the appeal is successful, the status of Privy Council judgments will be heightened, meaning law students could well be expected to keep tabs on the goings on of a whole extra judicial body.

There will be nine justices hearing the appeal, far higher than the usual five — a sure-fire sign this is a very important case. The basic reason for this nine-strong bench is that the court is being asked to overturn a previous House of Lords decision, on a point of law of considerable importance.

It’s undeniably an important case, but will it open up a whole new stream of case law for students to learn?

Everything will be a bit up in the air until we have a judgment, but to help make things a little clearer Legal Cheek spoke to James Lee — senior law lecturer at King’s College London. He confirmed that the Supreme Court may well recognise that Privy Council decisions should have a different status of precedent to what they have now, but it’s hard to say what effect this would have on syllabuses. He told us:

What this case will (or could) do is clarify when lower courts may follow a Privy Council authority, particularly if it contradicts, or is inconsistent with, an earlier House of Lords, Supreme Court, or even Court of Appeal decision. So this case may help students with clearer rules about where things stand, both in particular areas of law and in our introductory lectures on legal reasoning and precedent.

Students should remember, however, that particularly useful Privy Council decisions are already included on law syllabuses. Lee gave the famous example of The Wagon Mound, a tort law case that will prove familiar to most law students. And a couple of legal commenters Legal Cheek spoke to questioned the case’s focus on the status of Privy Council decisions and argued instead that it’s the substantive tort law issue that will take centre stage.

A judgment will not be expected for at least a few months, so we can only hang tight and keep our fingers crossed that this case won’t lead to even more work for stressed out law students.

13 Comments

Anonymous

The Provy Council is an interesting body- it’s the only court in Western Europe still dealing with death penalty cases (from Commonwealth Caribbean countries), and last year they actually refused to overturn a death sentence for the first time in over 20 years.

The Privy Council is basically a hangover (geddit?!?) from the Empire.

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Anonymous

Thank you for your unnecessary comment.

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Anonymous

*Privy

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Anonymous

I knew this was a KK article before I clicked on it.

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Anonymous

But there was no mention of any diversity of lawyers nor reasons why she thinks she is not suited for commercial law.

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Anonymous

Lee is quite right – any sensible reading list would already include any Privy Council case that satisfies the criteria described (such as Holley on provocation and Barlow Clowes on dishonest assistance).

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Anonymous

The header says that this is a “potentially groundbreaking public law case”. I agree it’s a potentially very important case, but it’s not what I’d call a public law case per se. If the SC decides that PC judgments should be afforded more weight, then it’ll be the English Legal System books that need to be updated rather than all the public law ones.

By the way, spoiler alert: the SC will decide that the weight to be attached to a PC case depends on the nature of the case. If they are having to interpret a provision of a statute from Trinidad & Tobago, there’s no reason why that should have much weight in an English case. But if it’s a PC case based on English law (see the recent joint enterprise cases) then obviously that reasoning will carry significant weight.

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Anonymous

Surely any competent practitioner (and good student) keeps abreast of PC decisions already, just as they should do with appellate County Court decisions in their area of practice?

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MC Partner

I’m too busy snorting coke at Spearmint Rhino paid for with client funds #londonlaw #legalplayaa #lolatnoncorporatelawyers

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Lord Lyle of the Isles

The Lyle applauds KK as she clearly has a legal mind and actually writes legal articles here. In my career, I never once had a malicious prosecution case. I did have numerous concrete trampolines, which were disposed of accordingly. Those, and there were a few who brought numerous concrete trampolines before the court were placed on something called the “vexatious litigants” list whereof there is a list of them in tomes in the QB and Chancery. The Family division has different but none the less effective measures.

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Anonymous

I don’t know what you are on about, but it still made me laugh until my breeches dampened.

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Harley watch

Judgments of the Privy Arbital Court remain binding on all courts.

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Deed U NO

“privy” means – toilet right ? , in the privy..

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