Panton v Financial Institutions Services Ltd (Jamaica)
| Jurisdiction | UK Non-devolved |
| Judge | Sir Kenneth Keith |
| Judgment Date | 15 December 2003 |
| Neutral Citation | [2003] UKPC 86 |
| Court | Privy Council |
| Docket Number | Appeal No. 95 of 2002 |
| Date | 15 December 2003 |
[2003] UKPC 86
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
Sir Kenneth Keith
Privy Council
[Delivered by Sir Kenneth Keith]
The appellants are defendants in criminal and civil proceedings, both arising from the same set of events. They sought a stay or suspension of the civil proceedings until the criminal trial had been completed. The Supreme Court of Jamaica dismissed the application. The Court of Appeal dismissed the appellants' appeal but granted them leave to appeal to Her Majesty in Council.
The appeal raises two issues:
(1)Is the rule stated in Smith v Selwyn [1914] 3 KB 98 part of the law of Jamaica? That rule, in the words of Swinfen Eady LJ, is that:
"… where injuries are inflicted on an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the suit of the person injured against the person who inflicted the injuries until the latter has been prosecuted or a reasonable excuse shown for his non-prosecution."(105)
(2)If that rule is not part of the law of Jamaica – as the Jamaican courts ruled - should their refusal to exercise their discretion to grant the stay or suspension be reversed?
Both sets of proceedings arise out of the involvement of the appellants and others in the management of certain financial institutions which solicited and accepted deposits from the public. In 1994 and 1995 the Minister of Finance took over the temporary management of the institutions and later all their assets were transferred to the respondent company which is wholly owned by the Government of Jamaica. The civil proceedings, begun in 1995, allege breaches of fiduciary duties and fraud, and claim substantial monetary relief. The criminal charges, brought in 1996, allege conspiracies to deceive, conspiracies to defraud and falsification of accounts.
Mr Codlin, for the appellants, contended that the rule in Smith v Selwyn was still part of the law of Jamaica. In the course of oral argument he was, however, brought essentially to the position that that was not so.
Given counsel's position, their Lordships may indicate briefly why they have come to that conclusion. It was common ground that, in broad terms, parts of the laws of England which were applicable to the situation and conditions of Jamaica when it became a colony became part of its law. Mr Codlin referred their Lordships to a Jamaican judgment of 1867 in support of that proposition: Jacquet v Edwards (1867) 1 Stephens Rep 414, 419. That judgment in turn refers to Blackstone's Commentaries.
As will appear, Smith v Selwyn is longer good law in England, the matter of a stay now being in the discretion of the court which is to weigh the competing considerations. But that change was not decisive, said Mr Codlin, since a change in the law of England did not automatically carry over into the law of Jamaica. Their Lordships accept that that is so, but it is common experience that courts of jurisdictions which were initially subject to the Blackstone rule or some variation of it frequently choose to follow developments of the common law as they occur elsewhere. Mr Codlin frankly accepted that he could not point to any local circumstances supporting the argument that the Jamaican courts should not have followed the movement in the common law to be seen elsewhere. He could say little more than that the courts in this case should have identified the issue in terms of the old Blackstone rule and should have pointed to the lack of distinguishing circumstances. He was not, of course, contending that the common law of Jamaica was frozen, for instance as at 1914 when Smith v Selwyn was decided, and he accepted that common law could move on and, in this particular situation, had indeed done so.
That movement may be briefly traced. The English Court of Appeal in 1979 in Jefferson Ltd v Bhetcha [1979] 1 WLR 898, the New South Wales Supreme Court in 1982 in McMahon v Gould 7 (1982) ACLR 202, the Federal Court of Australia in 1984 in Re Cameron's Unit Services Pty Ltd v Kevin R Whelpton and Associates (Australia) Pty Limited and another (1984) 4 FCR 428 and the Jamaican Court of Appeal in 1994 in Bank of Jamaica v Dextra Bank & Trust Co Ltd (1994) 31 JLR 361 have all held that the issue of a stay to prevent civil proceedings when criminal prosecutions arising out of the same events are also pending is a matter of discretion to be exercised by reference to the competing considerations. It is not a matter of rule. Smith v Selwyn has been discarded.
Various reasons have been given for the discarding of the rule. One relates to the requirement of the rule that the facts upon which the civil action is based amount to felony and to nothing else. Of that Carey JA in the Jamaican Court of Appeal in Dextra said this (at 364):
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