Longer law student reading lists await as Supreme Court bigs up status of Privy Council judgments

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By Katie King on

Groundbreaking case extends the law of tort, too


Law students you might want to look away now… the highest court in the land has this morning ruled that some Privy Council decisions have legal precedent status in England and Wales.

As if reading Supreme Court, Court of Appeal and the occasional High Court decision wasn’t taxing enough, students will now have yet more higher court case law to grapple with as a new channel of legal precedent opens up.

This legal change is a result of a case brought by Mr Willers and is actually about the law of tort. The appellant wanted to know whether a tort of malicious prosecution of civil proceedings exists, or should exist, in law.

The case moved above and beyond squabbling about whether the tort exists or not as a second issue in the tricky case concerned whether decisions of the Privy Council should be legally binding, which — before today — they were not.

In an unusual move made by an unusually high number of justices (nine, to be exact), two judgments were given in this one case.

Regarding the first issue, five of the nine judges decided the tort of malicious prosecution does include the prosecution of civil proceedings.

Regarding the second, Privy Council issue, the justices unanimously decided that the court could — in some circumstances — decide that an earlier House of Lords or Supreme Court decision was wrong, and could “expressly direct” the domestic courts to treat its decision as correct.

It was down to Supreme Court heavyweight Lord Neuberger to detail what these circumstances are. He said:

There will be appeals to the [Privy Council] 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 [Privy Council] decides that the House of Lords or Supreme Court, or, as the case may be, the Court of Appeal, was wrong… [T]he members of [the Privy Council] 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 [Privy Council] as representing the law of England and Wales.

Reflecting on what this all means for law students at the time of the hearing, senior lecturer James Lee was hopeful this judgment could actually help aspiring lawyers out. The King’s College London academic told Legal Cheek:

[T]his 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.

Speaking to us today, Lee is still optimistic. He explained:

Students need not be concerned that this will add to the length of their reading lists, as academics would include relevant Privy Council decisions as a matter of course anyway (think of The Wagon Mound or Attorney General for Hong Kong v Reid). What this case does is remove at least some precedent-related uncertainty. However, the circumstances in which such departure may occur are somewhat tightly circumscribed, and the decision appears mainly to be focused on the proper practice for decisions in the future, rather than those that have already been decided. So challenges for making sense of the law will remain.

Fingers crossed, Lee’s prediction is correct.