This is an important decision confirming that decisions of the Judicial Committee of the Privy Council may be treated as having effect in England and Wales first being adopted by the Supreme Court. This ought to:
(a) have the effect of harmonising the common law here and elsewhere (particularly important post-Brexit); and
(b) avoid the same point being litigated twice.
Lord Neuberger gave the judgment of the Court in the following terms,
“17. …I have concluded that it is more satisfactory if, subject to one important qualification which I deal with in paras 19 and 20 below, the rule is absolute – ie 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…
First, particularly given the importance of the doctrine of precedence 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…there can be much argument and difference 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 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 flexible rule. Thus, if the first instance judge follows the decision of a superior court in this jurisdiction, she can grant a “leapfrog certificate”, 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 beneficial in terms of time or costs for the issue to be considered by the Court of Appeal. Having said that, there may well be case where the Supreme Court will consider that it would benefit from the views of the Court of Appeal, and in such a case it can refuse to entertain the appeal pursuant to the certificate.
19. Having said that, I would adopt a suggestion made by Lord Toulson… which is plainly sensible in practice and justified by experience (and is therefore consistent with Oliver Wendell Holmes’s 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 unfortunate in practical terms if, in such circumstances, the JCPC could never effectively 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 identified 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 panels of the JCPC normally consist of Justices of the Supreme Court.
20. The JCPC’s 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 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 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…. it seems to me to be not only 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 effect as the Supreme Court.”
Formatting changed for ease of reading.