Hi Neil, all

I must say I understood the reference to "domestic" Courts as being to
the Courts of England and Wales.

G

On 7/20/16, Neil Foster <neil.foster@newcastle.edu.au> wrote:
> Thanks for your excellent summaries as usual, Jamie. Can I just clarify one
> pont, a minor one perhaps, about the second Wllers decision on the authority
> of the JCPC? Where Lord Neuberger says that in future the Privy Council has
> authority, in clear cases, to depart from a prior decision of the UKHL or
> the UKSC, nd also authority to say that “domestic courts” should treat their
> view as representing the law of England and Wales, I take it that the word
> “domestic” here means “the courts of the country from which the PC appeal
> was taken”, not “the courts of the UK”? So that on an appeal from Jamaica,
> say, if the PC departs from a previous UKSC decision, from that point on the
> courts of Jamaica, if they need to decide a matter in accordance with “the
> law of England and Wales”, are to take the PC view. Just checking whether I
> have understood this correctly.
> Hope the conference is going well!
> Regards
> Neil
>
> ASSOCIATE PROFESSOR NEIL FOSTER
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> From: Jamie Lee <james.lee@kcl.ac.uk<mailto:james.lee@kcl.ac.uk>>
> Date: Wednesday, 20 July 2016 at 8:05 PM
> To: "obligations@uwo.ca<mailto:obligations@uwo.ca>"
> <obligations@uwo.ca<mailto:obligations@uwo.ca>>,
> "ENRICHMENT@LISTS.MCGILL.CA<mailto:ENRICHMENT@LISTS.MCGILL.CA>"
> <ENRICHMENT@LISTS.MCGILL.CA<mailto:ENRICHMENT@LISTS.MCGILL.CA>>
> Subject: UK Supreme Court decisions: Illegality, Malicious Prosecution and
> Precedent
>
> Dear Colleagues,
>
> (Please forgive the cross-posting)
>
> As advertised last week, the UK Supreme Court has today given several
> judgments which will be of interest to members of these lists.
>
> First, in Patel v Mirza, the Supreme Court considers illegality and by a
> majority (as to reasoning) adopts a more nuanced, flexible approach than in
> previous case law:
> https://www.supremecourt.uk/cases/docs/uksc-2014-0218-judgment.pdf. The
> court departs from Tinsley v Milligan. Nine Justices given six judgments
> between them. Lord Toulson gives the lead judgment and focuses on
> proportionality (at [120]):
>
> "The essential rationale of the illegality doctrine is that it would be
> contrary to the public interest to enforce a claim if to do so would be
> harmful to the integrity of the legal system (or, possibly, certain aspects
> of public morality, the boundaries of which have never been made entirely
> clear and which do not arise for consideration in this case). In assessing
> whether the public interest would be harmed in that way, it is necessary a)
> to consider the underlying purpose of the prohibition which has been
> transgressed and whether that purpose will be enhanced by denial of the
> claim, b) to consider any other relevant public policy on which the denial
> of the claim may have an impact and c) to consider whether denial of the
> claim would be a proportionate response to the illegality, bearing in mind
> that punishment is a matter for the criminal courts. Within that framework,
> various factors may be relevant, but it would be a mistake to suggest that
> the court is free to decide a case in an undisciplined way. The public
> interest is best served by a principled and transparent assessment of the
> considerations identified, rather by than the application of a formal
> approach capable of producing results which may appear arbitrary, unjust or
> disproportionate."
>
> There at some strident dissents as to reasoning, though concurring in the
> result.
>
> In Willers v Gubay (1)
> https://www.supremecourt.uk/cases/docs/uksc-2015-0154a-judgment.pdf, a
> majority of the Supreme Court (a 5:4 split), finds that the tort of
> malicious prosecution does extend to the prosecution of civil proceedings.
> There is an awful lots of discussion of principle and policy, and the
> majority conclude that "simple justice" requires that such a claim be
> available. (It is worth noting that the relevant earlier contentious Privy
> Council decision, Crawford Adjusters v Sagicor, was a 3:2 split, and the
> judges who were in the majority then are in the majority again, and the
> dissentients are again in the minority here).
>
> In Willers v Gubay (2)
> (https://www.supremecourt.uk/cases/docs/uksc-2015-0154a-judgment.pdf), the
> Supreme Court separately considers the role of the Privy Council in the
> system of precedent for England and Wales, and holds that it is possible for
> the Privy Council to depart from a House of Lords or Supreme Court decision.
> (They are mercifully unanimous on this point). Per Lord Neuberger (at
> [19]):
>
>
> "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... 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."
>
> Where a Lords or UKSC decision is to be a challenged, an appropriate Privy
> Council panel can be convened, Lord Neuberger continues, and members of that
> Board "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" (At
> [21]).
>
>
> There is a third case on lying in insurance claims, but that is not as
> directly on point for members of these lists
> (https://www.supremecourt.uk/cases/docs/uksc-2014-0252-judgment.pdf).
>
> Best wishes,
>
> James
>
> --
> James Lee
> Senior Lecturer in Private Law
> Acting Director of UG Admissions and Scholarships
>
> The Dickson Poon School of Law
> King's College London
> Strand
> London WC2R 2LS
>
> E-mail: james.lee@kcl.ac.uk<mailto:james.lee@kcl.ac.uk>
>
> Profile: http://www.kcl.ac.uk/law/people/academic/j-lee.aspx
>
>
> --
> James Lee
> Senior Lecturer in Private Law
> Acting Director of UG Admissions and Scholarships
>
> The Dickson Poon School of Law
> King's College London
> Strand
> London WC2R 2LS
>
> E-mail: james.lee@kcl.ac.uk<mailto:james.lee@kcl.ac.uk>
>
> Profile: http://www.kcl.ac.uk/law/people/academic/j-lee.aspx
>