Crawford et Al v Financial Institutions Services Ltd (No. 2)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hutton |
| Judgment Date | 19 June 2003 |
| Neutral Citation | [2003] UKPC 49 |
| Court | Privy Council |
| Date | 19 June 2003 |
[2003] UKPC 49
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hutton
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
The Rt. Hon. Justice Tipping
[Delivered by Lord Hutton]
This petition for special leave to appeal against the judgment of the Court of Appeal (Forte P, Bingham and Langrin JJA) dated 31 July 2001 raises issues as to the powers of the Court of Appeal to stay proceedings in an appeal as of right to the Judicial Committee of the Privy Council and to rescind an order granting conditional leave to appeal.
The petition first came on for hearing on 14 January 2003 before a Board consisting of three members but because of the importance of the issues arising the petition was adjourned to be heard before a full Board.
The petitioners (and others) were defendants in an action brought by the respondent for the recovery of various sums of money and other assets of Century National Bank Ltd ("the bank") which had gone into liquidation and the management of which had been taken over by the Minister of Finance of Jamaica exercising his powers under the Banking Act. The assets of the bank and all claims and rights to recover debt, damages or other compensation from persons liable to the bank subsequently became vested in the respondent. The first petitioner had been chief executive of the bank. The third petitioner is the mother of the first petitioner and the first petitioner, his wife and children owned all the shares in Regardless Ltd, the second petitioner.
The trial of the action took place before Wolfe CJ who, on 25 May 1999, gave judgment for the respondent (i) against the first and third petitioners for J$703,393,931.94 with interest at J$105,443.78 per day from 21 September 1998; (ii) against the first petitioner (and other defendants) for a number of lesser, though still substantial, sums; and (iii) against the second petitioner for a declaration that the respondent was the beneficial owner of certain premises and for an order that the second petitioner should transfer the premises to the respondent on demand. The Chief Justice further ordered that the petitioners (and other defendants) should pay the costs of the respondent. By Order dated 19 July 1999 the Chief Justice stayed parts of the judgment against the petitioners but he did not stay the order for costs against the petitioners. The petitioners appealed against the judgment and their appeal was dismissed by the Court of Appeal with costs on 31 July 2001.
The Constitution of Jamaica gives the petitioners an appeal as of right from the judgment of the Court of Appeal, section 110(1) of the Constitution providing:
"An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council as of right in the following cases –
(a) where the matter in dispute on the appeal to Her Majesty in Council is of the value of one thousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of one thousand dollars or upwards, final decisions in any civil proceedings."
The procedure in appeals to the Judicial Committee of the Privy Council is set out in the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962 (SI 1962/1650) ("the Jamaica Appeals Procedure Order") and it is necessary to set out the following sections of the order:
"3. Applications to the Court for leave to appeal shall be made by motion or petition within twenty-one days of the date of the judgment to be appealed from, and the applicant shall give all other parties concerned notice of his intended application.
4. Leave to appeal to Her Majesty in Council in pursuance of the provisions of any law relating to such appeals shall, in the first instance, be granted by the Court only –
(a) upon condition of the appellant, within a period to be fixed by the Court but not exceeding ninety days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the Court in a sum not exceeding £500 sterling for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of his not obtaining an order granting him final leave to appeal, or of the appeal being dismissed for non-prosecution, or of the Judicial Committee ordering the appellant to pay costs of the appeal (as the case may be); and
(b) upon such other conditions (if any) as to the time or times within which the appellant shall take the necessary steps for the purposes of procuring the preparation of the record and the despatch thereof to England as the Court, having regard to all the circumstances of the case, may think it reasonable to impose.
5. A single judge of the Court shall have power and jurisdiction –
(a) to hear and determine any application to the Court for leave to appeal in any case where under any provision of law an appeal lies as of right from a decision of the Court;
(b) generally in respect of any appeal pending before Her Majesty in Council, to make such order and to give such other directions as he shall consider the interests of justice or circumstances of the case require:
Provided that any order, directions or decision made or given in pursuance of this section may be varied, discharged or reversed by the Court when consisting of three judges which may include the judge who made or gave the order, directions or decision.
6. Where the judgment appealed from requires the appellant to pay money or do any act, the Court shall have power, when granting leave to appeal, either to direct that the said judgment shall be carried into execution or that the execution thereof shall be suspended pending the appeal, as to the Court shall seem just, and in case the Court shall direct the said judgment to be carried into execution, the person in whose favour it was given shall, before the execution thereof, enter into good and sufficient security, to the satisfaction of the Court, for the due performance of such Order as Her Majesty in Council shall think fit to make thereon.
…
11. When an appellant, having obtained an order granting him conditional leave to appeal, and having complied with the conditions imposed on him by such order, fails thereafter to apply with due diligence to the Court for an order granting him final leave to appeal, the Court may on an application in that behalf made by the respondent, rescind the order granting conditional leave to appeal, notwithstanding the appellant's compliance with the conditions imposed by such an order, and may give such directions as to the costs of the appeal and security entered into by the appellant as the Court shall think fit, or make such further or other order in the premises as, in the opinion of the Court, the justice of the case requires."
By notice of motion dated 17 August 2001 the petitioners applied to the Court of Appeal for leave to appeal to the Judicial Committee from the court's judgment of 31 July 2001 and the notice stated that the matter in dispute had a value exceeding $1000.
On the hearing of the motion on 8 October 2001 the Court of Appeal (Harrison, Forte and Panton JJA) ordered that:
"1. Conditional Leave to Appeal to Her Majesty in Council be granted;
2. Within Ninety (90) days hereof the 3rd, 6th and 9th Defendants/Appellants enter into good and sufficient security in the sum of One Thousand Dollars ($1,000.00) for the due prosecution of the Appeal and the payment of Costs and;
3. Within the said period take all necessary steps for the preparation of the Record and the dispatch thereof to England and;
4. That the Judgment herein be stayed pending the outcome of the Appeal to her Majesty in Council."
It is not in dispute that the petitioners complied with the conditions imposed by the Court of Appeal by entering into security in the sum of one thousand dollars and by depositing the record with the Registrar of the court within the time specified.
The petitioners did not pay to the respondent its costs of the hearing before the Chief Justice and the appeal to the Court of Appeal which had been taxed in the sum of J$7,631,883.33. On 12 February 2002 on the application of the respondent, Downer JA, sitting as a single judge of the Court of Appeal, made an order that:
"(1) All proceedings in and this Appeal to Her Majesty in Council be stayed until the Appellants pay the Respondent's Attorneys-at-Law the costs agreed and/or certified as payable in the Supreme Court and the Court of Appeal being the sum of J$7,631,883.33.
(2) The Respondent have liberty to apply to the Court of Appeal after 30 days from the date hereof for the variation or discharge of the partial stay of execution ordered by the Court on October 8, 2001 in the event of the sum at (1) above being then unpaid."
The petitioners applied to the Court of Appeal for an order that the order of Downer JA dated 12 February 2002 be set aside and on the hearing of that application the Court of Appeal ordered on 22 April 2002 that:
"(1) The Order (of Downer JA made on February 12, 2002) will not come into effect until 60 days from the date hereof.
(2) The proceedings be further stayed until payment of costs by applicant within 60 days."
On 12 April 2002 the respondent by notice of motion applied to the Court of Appeal for an order that the order granting conditional leave to appeal to the petitioners be rescinded and/or that the order for a stay of execution of the judgment granted by the Court of Appeal on 8 October 2001 be discharged. This application came on for hearing on 18 November 2002 when the Court of Appeal (Forte, Harrison and Walker JJA)...
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