Jersey Unreported Judgments

Appeals by the Second Respondent and the Party Cited against Orders of the Royal Court dated 27th October and 15th November 2010.

[2011]JCA141B

Court of Appeal

14 July 2011

Advocate J. Harvey-Hills for the Second Respondent and Appellant.

Advocate A. D. Robinson for the Party Cited and Appellant.

Advocate K. J. Lawrence for the Respondent.

The First Respondent did not appear and was not represented.

judgment of the court[1]

the president:

1.        As far as costs are concerned Hemisphere will have its costs in relation to both appeals but on the standard basis.  For the avoidance of doubt that includes costs in relation to the applications for fresh evidence and in reply thereto. 

2.        As far as Gécamines' Ground (vi) is concerned this is an exception to what we have just determined and in relation to Ground (vi) there will be no award of costs either way. 

3.        As far as leave to appeal to the Privy Council is concerned we are grateful to Advocate Harvey-Hills for addressing us in relation to the test and the way in which this should be approached under Article 14 of the Court of Appeal Jersey Law 1961 as it now stands. 

4.        In relation to this matter we do not intend to set out a prescriptive test to be followed.  We note from the advice of the Board of the Privy Council in Daily Telegraph Newspaper Company Ltd-v-McLaughain [1904] AC 776 that, both in relation to what is said on page 779 in that decision and in what is said on page 778 under reference to advice of the Board delivered by Lord Watson in La Cité de Montréal-v-Les Ecclésiastiques de St Sulpice de Montréal (1889) 14 App Cas 660 the matter is one which really has to be approached on a case by case basis.  For our own part, sitting as only three of the members of the Court of Appeal of Jersey we would not wish to say anything at this stage which would necessarily bind those other members sitting in relation to other applications. 

5.        However, adopting the approach set out for the Privy Council in its own decision in the Daily Telegraph case, where there was reference to matters of gravity, matter of public interest, important questions of Law or public importance of a very substantial character, we consider in relation to the Gécamines appeal that this is a matter in respect of which we are prepared to grant leave to make appeal to the Privy Council.  The issues which it raises are undoubtedly important questions of Law, as seen both by the fact that there was a divided decision of this Court and, as I think all those present are aware, by the nature of the debate which took place when we heard the matter in May. 

6.        However, in relation to the GTL appeal we do not consider this to be an appropriate matter for the Court to grant leave to appeal to the Privy Council and it is entirely a matter for GTL as to whether it wishes to pursue the matter further.  This therefore means that, as regards the stay, matters remain as they are in relation to the Gécamines issues.  As regards GTL, as we have not granted leave to appeal we will set out an order in similar terms to paragraph 25 of the order of Court of 15^th November, 2010, covering GTL.  The order will be circulated in draft form and so that parties can have the opportunity of considering its terms. 

7.        Unless there are any further applications or any views which Counsel wish to express, the only thing which we should add is that with these very long judgments it is possible for errors and typographical errors to creep in.  We have all been through it about half a dozen times but if there are errors of that nature then please do send your notes into the Greffier. 

Authorities

Daily Telegraph Newspaper Company Ltd-v-McLaughain [1904] AC 776.

La Cité de Montréal-v-Les Ecclésiastiques du Seminaire de St Sulpice de Montréal (1889) 14 App Cas 660.

Court of Appeal Jersey Law 1961.