E. Anthony Ross v Bank of Commerce (Saint Kitts Nevis) Trust and Savings Association Ltd
| Jurisdiction | UK Non-devolved |
| Judge | LORD MANCE |
| Judgment Date | 23 November 2010 |
| Neutral Citation | [2010] UKPC 28 |
| Date | 23 November 2010 |
| Docket Number | Appeal No 0026 of 2010 |
| Court | Privy Council |
[2010] UKPC 28
Privy Council
Lord Phillips
Lord Mance
Lord Collins
Appellant
Frank E. Walwyn
(Instructed by Barlow Lyde & Gilbert LLP)
Respondent
Karl Hudson-Phillips QC
Mr Thomas Roe
(Instructed by Collyer Bristow LLP)
In these proceedings, Mr E. Anthony Ross, claims against the Bank of Commerce (Saint Kitts Nevis) Trust and Savings Association Ltd (in liquidation) US$410,000 and interest in respect of two certificates of deposit expressed to mature on 10 December 1981. Mr Ross obtained judgment at first instance, but this was set aside in the Court of Appeal on 25 January 2010. Section 99 of the Constitution scheduled to the Saint Christopher and Nevis Constitution Order, 1983 ( SI 1983/881) provides that an appeal shall lie to the Privy Council from decisions of the Court of Appeal as of right where the matter in dispute involves $5000 or upwards. Mr Ross has on 5 March 2010 filed a notice of appeal with the Privy Council, maintaining that he is entitled to appeal to the Privy Council as of right, without needing to seek or obtain leave from the Court of Appeal or the Privy Council. The first issue is whether that is correct. The second issue, if it is not, is whether the Board should grant Mr Ross special leave or permission to appeal under the Judicial Committee Acts 1833, section 3 and 1844, section 1.
The Board pays tribute to the quality of the submissions which it has received from Mr Frank Walwyn for Mr Ross and from Mr Hudson Phillips QC and Mr Thomas Roe for the Bank. For reasons which follow, the Board concludes in relation to the first issue that, even in respect of appeals expressed to be as of right under the Constitution, it remains necessary either to obtain leave from the Court of Appeal or, that lacking, to obtain special leave from the Privy Council, and in relation to the second issue that special leave should be granted for an appeal to the Privy Council in the present case.
It is common ground that prior to 21 April 2009 - when the Judicial Committee (Appellate Jurisdiction) Rules Order 2009 (SI 2009/224) ("the 2009 Order") brought the new Judicial Committee (Appellate Jurisdiction) Rules 2009 ("the 2009 Rules") into effect - Mr Ross's stance on the first issue would have been incorrect. He would have needed to seek and obtain leave from the Court of Appeal or, that lacking, the Privy Council. Rule 2 of Schedule 2 to The Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 ( SI 1982/1676: revoked in its entirety by the 2009 Order) provided in unqualified terms that:
"2. No appeal shall be admitted unless either –
a) Leave to appeal has been granted by the court appealed from; or
b) In the absence of such leave, special leave to appeal has been granted by Her Majesty in Council."
The combination of section 3 of the Judicial Committee Act 1833 and section 1 of the Judicial Committee Act 1844 confirmed that the Privy Council had a general power to grant special leave to appeal to it. But the established practice in cases where the local Constitution provided for an appeal as of right was for leave to be sought in the first instance from the local Court of Appeal. The practice can be traced back to the 19 th century, before Privy Council procedure was formalised in general rules: see e.g. Ex p Rolfe (1863) 2 W & W, I E & M 51; Macpherson's The Practice of the Judicial Committee of Her Majesty's Most Honourable Privy Council (Henry Sweet, 1873) and Bentwich's The Practice of the Privy Council in Judicial Matters, 3 rd ed. (1937) pp.107–111.
The grant of leave by the court appealed from for an appeal as of right was "not, however, a matter of discretion for that court": Electrotec Services Ltd v Issa Nicholas (Grenada) Ltd [1998] 1 WLR 202, 204E. The purpose of seeking leave to appeal from the court appealed from was to confirm that the appeal was as of right, and to impose such limited conditions as might be permitted by the local Constitution and law. This is confirmed by article 5 of The Saint Christopher and Nevis Appeals to the Privy Council Order - as the West Indies Associated States (Appeals to the Privy Council) Order 1967 ( SI 1967/224) may be cited (see The Saint Christopher and Nevis Constitution Order 1983 ( SI 1983/881), Schedule 2 para 8, and The Saint Christopher and Nevis Modification of Enactments Order 1983 ( SI 1983/882), Schedule, para 9). The Board will refer to this Order as the Privy Council Appeals Order 1967. Under article 5, the only permissible conditions involved the provision of security for costs not exceeding £500 and other conditions as to the time for steps to procure the preparation of the record and despatch it to England.
Where leave was not obtained, for whatever reason, from the local Court of Appeal, then special leave could still be sought from the Privy Council. Bentwich (at p110) describes the 19 th century position as follows:
"Where the Court below should have granted leave to appeal, the question in dispute being of the appealable value, but it has refused, a petition should be presented addressed to Her Majesty in Council by way of appeal from such refusal, and asking that such order may be set aside and leave to appeal be granted: cf Wilson v Callender, 9 Moo 100; Bank of Australasia v Harris, 16 Moo 97; Re Sibmarain Ghose, 8 Moo 257."
The position was codified in slightly different terms, better reflecting the terms of the 1833 and 1844 Acts, in a single set of rules by the Judicial Committee Jurisdiction and Procedure: General Rules as to Appeals Rules 1908 ( SR & O 1908, 405). Rule 2 provided:
"All appeals shall be brought either in pursuance of leave obtained from the court appealed from, or, in the absence of such leave, in pursuance of special leave to appeal granted by His Majesty in Council upon a petition in that behalf presented by the intending appellant".
Rule 2 of the 1982 Rules (para 2 above) effectively re-enacted this provision. Upon an application for special leave, if the Privy Council concluded that leave should have been granted as of right by the Court of Appeal, that would be a most material factor. But the Privy Council could, exceptionally, refuse special leave even in such a case, "as, for example, where it was clear that the appeal was wholly devoid of merit and was bound to fail": Crawford v Financial Services Institutions Ltd. [2003] UKPC 49; [2003] 1 WLR 2147, para 23.
The 2009 Rules contain no precise analogue of Rule 2 of the 1982 Rules. Rules 10, 11 and 18 of the 2009 Rules read:
"Permission to appeal
10. In cases where permission to appeal is required, no appeal will be heard by the Judicial Committee unless permission to appeal has been granted either by the court below or by the Judicial Committee.
Filing of application for permission to appeal
11.—(1) Every application to the Judicial Committee for permission to appeal shall be made in the appropriate form.
(2) An application for permission to appeal must be filed within 56 days from the date of the order or decision of the court below or the date of the court below refusing permission to appeal (if later).
……
Form and filing of notice where permission not required
18.—(1) Every notice of appeal shall be made in the appropriate form.
(2) The notice of appeal together with the requisite number of copies must be filed within 56 days of the date of the order or decision of the court below or of the date of the order or decision of that court granting permission to appeal (if later).
(3) The grounds of appeal may not (without the permission of the Registrar or the Judicial Committee) differ materially from those for which permission to appeal has been granted.
(4) The appellant must—
(a) serve a copy of the notice of appeal on each respondent before it is filed; and
(b) at the same time as the notice of appeal is filed, file a certificate of service.
(5) The appellant must also file
(a) a copy of the order appealed from and
(b) (if separate) a copy of the order granting permission to appeal and
if the order appealed from is not immediately available, the notice of appeal should be filed without delay and the order filed as soon as it is available."
The combination in Rule 10 of the opening words ("In cases where permission to appeal is required") and the provision that in such cases no appeal will be heard unless permission has been granted either by the court below or by the Privy Council suggest that there must be cases in which no permission to appeal is required from either the court below or the Privy Council. Rule 11(2) deals with cases where permission is required from the Privy Council, and is not therefore in point. Rule 18 is less clearly suggestive than Rule 10 of a conclusion that there may be cases in...
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