Application for leave to appeal to the Privy Council and for stay of
costs order.
[2017]JCA076
Court of Appeal
30 May 2017
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Before :
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James McNeill, Q.C., President;
John Martin, Q.C., and
Sir David Calvert-Smith, Q.C.
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Between
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Parish of St Helier
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Appellant
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And
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Minister for Infrastructure
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Respondent
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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.
