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

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

Profile: http://www.kcl.ac.uk/law/people/academic/j-lee.aspx