The Supreme Court gives valuable guidance on the precedent
value that the courts of England and Wales should give to decisions
of the Judicial Committee of the Privy Council
Willers v Joyce & Anor (in substitution for and in their
capacity as executors of Albert Gubay (deceased)) (2016)
In this important decision which clarifies the precedent value
of decisions of the Privy Council, the Supreme Court explains that
its decisions are generally not binding but greatly persuasive.
However, the Supreme Court granted the Privy Council the power, in
certain defined circumstances, to decide that an earlier decision
of the Supreme Court/House of Lords or Court of Appeal was wrong
and direct domestic courts to treat the Privy Council's
decision as representing the law of England and Wales.
The Privy Council was not a court of any part of the UK.
However, it almost always applied the common law, and either all or
four of the five Privy Counsellors sitting on the appeal would
almost always be Supreme Court justices. Privy Council decisions
are not normally binding on any judge of England and Wales and may
not override any decision of a court of England and Wales which
would otherwise represent a precedent which was binding on that
However, any Privy Council decision, at least on a common law
issue, should normally be regarded by any judge of England and
Wales as being of great weight and persuasive value. The Privy
Council should regard itself as bound by any House of Lords or
Supreme Court decision, at least when applying the law of England
Regarding whether the rule that a court should not follow a
Privy Council decision if it was inconsistent with a binding
decision was absolute, or could be disapplied, it was more
satisfactory that the rule should be absolute.
However, that rule was subject to one important qualification.
The Privy Council's Practice Direction 3.1.3 and Practice
Direction 4.2.2 required an appellant to say whether an appeal
would invite the Privy Council to depart from a House of Lords or
Supreme Court decision. That should be expanded to apply to Court
of Appeal decisions. Where the Practice Directions applied, the
registrar of the Privy Council should draw the attention of its
President to the fact that there might be such an invitation. The
President could take that into account when deciding on the
constitution of the panel to hear the appeal and, provided that the
point was one of English law, the Privy Council panel members could
not only decide that the earlier decision was wrong but could also
expressly direct that domestic courts should treat its decision as
representing the law of England and Wales.
NB: Regarding Scotland, the traditional view was that, subject
to possible exceptions, House of Lords judgments in English appeals
were at most highly persuasive. It was therefore impossible for
Privy Council decisions on English law to have greater authority
than that. However, the Supreme Court stated that it was likely
that precisely the same principles would apply in Northern Ireland
as in England and Wales given that the common law applied in the
The English Commercial Court has published two recent judgments of Mr Justice Popplewell in a single anonymised case concerning the removal of two arbitrators under section 24(1)(d)(i) of the Arbitration Act 1996.
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