Seaga v Harper (No 2)
| Jurisdiction | UK Non-devolved |
| Judge | Sir Henry Brooke |
| Judgment Date | 29 June 2009 |
| Neutral Citation | [2009] UKPC 26 |
| Court | Privy Council |
| Docket Number | Appeal No 90 of 2006 |
| Date | 29 June 2009 |
[2009] UKPC 26
Privy Council
Present at the hearing:-
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Mance
Lord Neuberger of Abbotsbury
Sir Henry Brooke
[Delivered by Sir Henry Brooke]
In this action the respondent Leslie Harper, who was at the material time a Deputy Commissioner of Police in Jamaica, recovered damages for slander from the appellant Edward Seaga, who was then the leader of the Opposition Labour Party in Jamaica. The claim arose out of words spoken by Mr Seaga in a speech in Kingston, Jamaica, on 2 nd October 1996. The trial judge held that the appellant was not protected by qualified privilege and awarded J$3,500,000 damages. The Court of Appeal in Jamaica dismissed his appeal but reduced the award to J$1,500,000. Mr Seaga then appealed to the Board on the issue of liability, and on 30 th January 2008 the Board advised Her Majesty that his appeal should be dismissed with costs on the standard basis.
Mr Harper's English solicitors and counsel agreed to represent him in the proceedings before the Board under Conditional Fee Agreements ("CFAs"). Mr Harper also took out "after the event" ("ATE") insurance cover. When his bill of costs was lodged with the Registrar, she referred it to the senior costs judge (Master Hurst) for taxation.
On 24 th October 2008 Master Hurst taxed Mr Harper's costs (excluding the success fee uplift and the disbursement on the ATE premium) in the sum of £77,197.80, and the Registrar duly issued an interim costs certificate in this amount. Master Hurst also considered the reasonableness of the success fee claimed and the reasonableness of the ATE premium, leaving open the question whether these elements of the bill were recoverable at all. On this basis he allowed them in the following amounts:
Success fee: 43%
ATE premium: £43,000
Although he thought the ATE premium was high, he allowed it in the absence of any evidence of a cheaper comparable policy. He invited the Registrar to refer the question whether these items were recoverable at all to the Board for decision.
Direction 7 of the Practice Direction (Taxation of Costs) which was issued by the Registrar in 2005 allowed for the possibility of the Board being invited to give directions if a Privy Council agent was acting or intended to act pursuant to a CFA. The Board was told, however, that although some appeals have been successfully conducted under CFAs without any objection being taken, no application for directions pursuant to this Practice Direction has ever been made, and the respondent's agents did not do so in the present case. The question therefore arises for decision for the first time whether a successful party before the Board is entitled to recover a success fee and the reimbursement of an ATE premium which he would be entitled to recover if he had been successful in domestic litigation in the courts of England and Wales.
To determine this question it is necessary first to say something about the Judicial Committee of the Privy Council and its historical origins. These were helpfully described in the opinion given by Viscount Sankey LC in British Coal Corporation v King [1935] AC 500 at pp 512-3.
As he explained, the Judicial Committee had its origins in the procedure whereby a party aggrieved by a decision of the Courts of the Channel Islands (and, later, by a decision of the Courts of the Plantations and Colonies) might petition the King in Council to exercise in his favour the sovereign's royal prerogative as the fountain of justice. In a domestic context such petitions were brought to the King in Parliament (being the origin of the judicial functions of the House of Lords which are soon to be abolished) or to the King in Chancery (from which flowed the jurisdiction of the Court of Chancery).
The procedure for petitioning the King in Council had become loosely described as an appeal by the time the Judicial Committee Act 1833 was enacted. That Act created the Judicial Committee of the Privy Council as a statutory body. It provided that "all appeals or complaints in the nature of appeals whatever" which had previously been brought before His Majesty in Council would now be referred by His Majesty to the Judicial Committee. Although the powers of the committee were limited to making a report or recommendations to His Majesty in Council, Viscount Sankey said that according to constitutional convention it was unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee "who are thus in truth an appellate court of law".
That case was concerned with the competency of a petition for special leave to appeal to the King in Council from a judgment of a court in Quebec in a criminal matter. The petitioners argued that notwithstanding the provisions of a Canadian statute which prohibited such appeals, this class of appeal was external to Canada, so that the Canadian legislature had no power to make provision affecting it. Viscount Sankey rejected this argument at pp 521-2:
"…[T]he reception and the hearing of the appeal in London is only one step in a composite procedure which starts from the Canadian court and which concludes and reaches its consummation in the Canadian Court. What takes place outside Canada is only ancillary to practical results which become effective in Canada. And the appeal to the King in Council is an appeal to an Imperial, not a merely British tribunal."
It was for this reason that the Board held that the Canadian legislature had power to prohibit appeals to the King in Council in criminal matters and that the petition before it was therefore incompetent.
Towards the end of his opinion Viscount Sankey quoted from the Report of the Imperial Conference in 1926 which stated at p 19 that "it was no part of the policy of His Majesty's Government in Great Britain that questions affecting judicial appeals (i.e. to the Judicial Committee of the Privy Council) should be delivered otherwise than in accordance with the wishes of the part of the...
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...New Roman'; } .span0 { color: #000000; font-size: 12.0000pt; font-weight: bold; font-family: 'Times New Roman'; } Seaga v. Harper, [2009] N.R. Uned. 249 (PC) MLB unedited judgment Edward Seaga (appellant) v. Leslie Harper (respondent) (Privy Council Appeal No. 90 of 2006) Indexed As: Seaga ......