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

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By Katie King on

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


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.