Jersey Unreported Judgments

Application for leave to appeal to the Privy Council and for stay of costs order.

[2017]JCA076

Court of Appeal

30 May 2017

Advocate N. A. K. Williams for the Appellant.

Her Majesty's Solicitor General appeared for the Respondent.

judgment

martin ja:

1.        On 20 February 2017 we gave judgment (Parish of St Helier-v-Minister for Infrastructure [2017] JCA 027) dismissing the appeal in this matter.  The background is set out in that judgment, and we do not repeat it here.  The parties are described in the same way as in that judgment. 

2.        The unsuccessful appellant, the Parish, now applies for leave to appeal to the Judicial Committee of the Privy Council and for a stay of the costs order until the appeal is determined.  This is the judgment of the court on that application. 

3.        Each of the Parish and the Minister relies on a different recent decision of this Court as identifying the principles applicable in this jurisdiction to an application for leave to appeal to the Judicial Committee.  It is therefore necessary to set out the relevant principles. 

4.        The more recent decision, relied on by the Minister, is Botas v Tepe [2016] JCA 199D, delivered on 4 November 2016.  The judgment of the court, delivered by Logan Martin JA, dealt in detail with previous authority in this jurisdiction and in the United Kingdom.  The authorities included Uprichard v Scottish Ministers [2013] UKSC 21, in which at [59] Lord Reed, speaking of appeals to the Supreme Court, said:

"Appeals against any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland can be brought only with the permission of the Court of Appeal or of this court. In practice, the Court of Appeal normally refuses permission so as to enable an appeal panel of this court to select, from the applications before it for permission to appeal, the cases raising the most important issues."

5.        In paragraphs 23 to 29 inclusive of the judgment in Botas, the court said this:

"23.    We begin by observing by reference to paragraph 3.3.3(a) of the JCPC Practice Direction that permission to appeal (or "leave" as it is in Art 14(a) of the 1961 Law) will only be granted by the Appeal Panel of the Judicial Committee of the Privy Council "in civil cases for applications that... raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at that time".  As that is the threshold which the Appeal Panel will apply in the event that we refuse leave and an application is made to the Privy Council for special leave, it appears to this Court that we would not be permitted to adopt a lower threshold.  Indeed, it may be said that a court of appeal in such a situation should actually adopt a stricter threshold simply because the Appeal Panel of the Judicial Committee can permit an appeal to proceed even where leave or permission has not been given by the court of appeal below, whereas the Judicial Committee cannot prevent the pursuing before it of an appeal where leave or permission should not have been given by that court of appeal.

24.      This approach appears to be consistent with what was said by Lord Reed in his judgment at para [59] in Uprichard.  His Lordship further explained his reasoning at para [60] where he went on to say:

"The public interest is served, in relation to appeals from England and Wales and Northern Ireland, by the rule that permission to appeal is granted only for applications that, in the opinion of the appeal panel, raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal. An application which in the opinion of the appeal panel does not raise such a point of law is refused on that ground (Supreme Court Practice Direction 3.3.3). The reasons for adopting that approach were explained by Lord Bingham of Cornhill, at the time when the final court of appeal was the House of Lords, in R v Secretary of State for Trade and Industry, ex p Eastaway [[2000] 1 WLR 2222] (p 2228):

'In its role as a supreme court the House must necessarily concentrate its attention on a relatively small number of cases recognised as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist.'"

25.      Given that the formulation adopted in paragraph 3.3.3(a) of the JCPC Practice Direction is the same as that adopted in paragraph 3.3.3 of the Supreme Court Direction, the question is whether this Court should apply the same practice as that of the Court of Appeal in England and Wales and, in doing so, should follow the approach described by Lord Reed.  So far as the authorities cited to us are concerned, this does not appear to have been the subject of any direct consideration either by this Court or by the Judicial Committee.  In FG Hemisphere Associates LLC v DRC and La Generale de Carrieres et des Mines [2011] JCA 141B (which is, as we have noted before, the case of Hemisphere at the stage when an application for leave to appeal to the Privy Council was before the Court of Appeal), McNeill JA said in the judgment of the Court:

"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."

The Court then proceeded to refuse leave to appeal on other aspects.

"26.    In Trilogy Management Limited v YT Charitable Foundation (International) Limited [2012] (2) JLR 330, McNeill JA said in the judgment of the Court at para 30:

"30.    In the recent litigation in these courts in FG Hemisphere Associates LLC v DRC and Gecamines [2011] JLR 486, a differently constituted Court of Appeal was asked to consider an application for leave to appeal with specific reference to the decision in Daily Telegraph Newspaper Company v McLaughlin [1984] AC 776 where the Privy Council gave consideration as to the practice which it would adopt in respect of the granting of special leave.  When granting leave in respect of one of the FG Hemisphere appeals this Court noted the Daily Telegraph decision, indicated that it did not intend to set out a prescriptive test to be followed by this Court and observed that the matter was one which really had to be approached on a case by case basis.

31.      As we have set out above, we agree that the proper characterization of the matter before us is as a question arising in respect of the proper administration of a trust established under and in terms of the law of Jersey. In addition, JY is a company incorporated under and by virtue of the laws of this jurisdiction. Trust litigation is often necessary: it is always expensive. Where an issue properly arises as to the appropriate administration of the trust and as part of friendly as opposed to adversarial litigation, the main weight of the costs incurred by parties will be borne by the trust and, in consequence, by its beneficiaries. Where such litigation has to take place, it should ordinarily be perfectly sufficient for parties to accept the determination of this appellate court. For our part, we consider that it would only be in exceptional circumstances that we would burden the trust funds with the additional costs of litigation before the Judicial Committee. On this basis, we discern no compelling reason to grant leave to appeal and the application is refused."

27.      In Syvret, in which McNeill JA was a member of the Court, Martin JA gave the leading judgment and said:

"32.    In Wilson v Jaymarke Estates Ltd [2007] SC (HL) 135 at [17], Lord Hope of Craighead observed:-

'It is contrary to the public interest that the time of the House should be taken up with appeals which do not raise an arguable question of general public importance, as this is liable to cause delay in the disposal of appeals which merit its attention.'

33.      Similar considerations apply in the Supreme Court: Uprichard v Scottish Ministers [2013] UKSC 21. In common with the Guernsey Court of Appeal (Emerald Bay Worldwide Limited -v- Barclays Wealth Directors (Guernsey) Limited, Guernsey Judgment No 2/2014), I consider that these considerations are relevant to appeals to the Privy Council and should inform the disposal in this jurisdiction of applications for leave to appeal from this court.

34.      There being no question of general public importance in the present case, leave should be refused. Mr Syvret is, of course, able to apply to the Privy Council for leave to appeal those parts of our decision that do not fall within Article 14(2) if he wishes to do so."

28.      The effect of these decisions of this Court may be summarised as follows.  In Hemisphere and Trilogy Management Limited, the Court followed the approach set out in Daily Telegraph Newspaper Company and in doing so considered the applications for leave against the importance of the questions of law and public importance.  In Syvret, the Court referred to the formulation of "an arguable question of general public importance" which had been described by Lord Hope in Jaymarke, and it also referred to Uprichard.  Each of these cases therefore applied in effect the formulation provided in paragraph 3.3.3(a) of the JCPC Practice Direction although did not refer directly to it.  In Syvret, the Court said that it regarded the considerations in particular in Uprichard as relevant to appeals to the Privy Council. 

29.      This Court is satisfied that having regard to the formulation provided in the JCPC Practice Direction and its equivalence to that in the Supreme Court Practice Direction, and the resulting relevance of the practice described by Lord Reed in Uprichard (which is a decision already noted in this Court), this Court ought also to follow the same practice.  This means that we should only grant leave to appeal to the Privy Council if we are satisfied that the arguable point or points of law which have been identified are of such clear public importance that they merit consideration by the Privy Council now.  In approaching the issue in this way, we are conscious that the phrase used in paragraph 3.3.3(a) is "which ought to be considered by the Judicial Committee at that time".  That obviously encompasses a consideration as to the immediacy of the need to address the point of law which can really only be judged by the Appeal Panel of the Privy Council.  The result is that even where it can be said that there may exist an arguable point of law, we would also need to be sure both as to the existence of that point of law and of its importance, as well of its need for determination at this time, before we should grant leave.  That is the result of the practice described by Lord Reed in Uprichard and the reasons for which were described by Lord Bingham in Eastaway.  The practice has been adopted in relation to applications for permission to appeal to the Supreme Court, and given that the respective Practice Directions are identical in this respect we can see no reason why this Court should not follow the same practice."

6.        Shortly prior to the decision in Botas, this Court, in Larsen and others v Comptroller of Income Taxes and others [2016] JCA 176A, given on 30 September 2016, had more briefly considered the appropriate test to be applied when considering whether or not to give leave.  This case is relied on by the Parish.  When delivering the judgment of the Court, Martin JA said this:

"4.      The test applied by the Privy Council itself when deciding whether to give leave is whether or not the case raises "an arguable point of law of general public importance which ought to be considered by the Judicial Committee at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal": paragraph 3.3.3 of JCPC Practice Direction 3 supplementing the Judicial Committee (Appellate Jurisdiction) Rules 2009.

5.        As this Court pointed out in Trilogy Management Ltd v YT Charitable Foundation (International) Ltd [2012] JLR 330, however, article 14 of the Court of Appeal (Jersey) Law 1961 - which provides that no appeal shall lie from a decision of the Court of Appeal without the leave of the Court or the special leave of Her Majesty in Council - allows this Court a wide degree of discretion as to whether or not to grant leave; and in FG Hemisphere Assocs LLC v Congo (Dem Rep) [2011] JLR 486 (reported substantively) this Court declined to set out a prescriptive test to be followed and observed that the question whether or not to grant leave was to be approached on a case-by-case basis.  It is nevertheless the case that in ordinary circumstances leave will not be given unless the case involves a point of significance not merely to the parties - who, as the practice direction points out, will usually have had their dispute determined judicially both at first instance and on appeal - but to the public at large."

7.        Larsen was not referred to in Botas, no doubt because it had been decided only a few weeks previously.  We do not, however, consider that they are in conflict with each other.  Each treats the Privy Council Practice Direction as prescribing the ordinary test.  The application of that test of course depends on the circumstances of the case; but we agree that in all but the clearest cases it will be desirable to follow the practice identified in Uprichard and leave the question of leave to the Privy Council itself.  

8.        In seeking leave to appeal, the Parish challenges in particular our conclusion that the expression à fin d'héritage denoted the extent of the interest transferred (in the 1952 Contract) or intended to be preserved (in the 1994 Covenant), not the duration of the covenants; our conclusion that that expression was not capable of applying to some only of the covenants; and our conclusion that the duration of the covenants was tied to the sewage disposal process.  These matters are said to be of significant public importance, since the expression has been regularly used in the context of covenants and servitudes and its meaning in that context has neither previously been considered by the courts nor is the subject of a formal conveyancing guide.  The issue is said to be highly important to a large number of property owners in Jersey; and, because of its relevance to the 'user pays' system of refuse disposal, to have a substantial economic impact both generally and in particular upon the rate payers of the Parish (who resolved in a parish meeting that leave to appeal should be sought).  

9.        We are prepared to accept that the issue of the meaning of the expression à fin d'héritage in the 1952 Contract and the 1994 Covenant can be categorised as raising arguable points of law.  We do not, however, think that they are points of general public importance.  The import of the expression à fin d'héritage has been well established in Jersey at least since the 1861 Report of the Civil Law Commissioners, in which it was said (at xii) that "there are only two species of freehold estate known to the law of Jersey; an estate in fee simple ("à fin d'héritage") and in some exceptional cases of privileged land an estate tail."  The Jersey Law of Property (1991) by Mattthews and Nicole, and Richard Falle's article referred to by us in our substantive judgment, as well as the Law Study Guide on the Law of Immovable Property by Anderson, are to the same effect.  How the expression is used in a particular contract does not raise a question of law of general public importance.  Nor is the point one that needs to be determined now: conveyancing in Jersey has been conducted in English since November 2006, so that the expression is unlikely to be used again.  The economic consequences of our decision do not mean that the points of law, as opposed to the general circumstances of the case, have general public importance. 

10.      Accordingly, we do not think that the issues the Parish wishes to raise before the Privy Council are ones which are so clearly of public importance that we should ourselves give leave.  We consider that we should follow the Uprichard practice and leave it to the Judicial Committee to determine whether or not leave to appeal should be given.  Leave is therefore refused. 

11.      We also refuse a stay of the costs orders pending any application to the Judicial Committee.  No reason for making such an order was advanced by the Parish in its submissions relating to leave.  There is no question that the Public will be able to repay the costs if in the end an appeal is permitted and allowed.  In our view, no special circumstances exist to justify a stay. 

Authorities

Parish of St Helier-v-Minister for Infrastructure [2017] JCA 027.

Botas v Tepe [2016] JCA 199D.

Uprichard v Scottish Ministers [2013] UKSC 21.

Larsen and others v Comptroller of Income Taxes and others [2016] JCA 176A.

The Jersey Law of Property (1991) by Matthews and Nicole.

Law Study Guide on the Law of Immovable Property by Anderson.