"No appeal shall lie from a decision of the Court of Appeal under this part of the Law  [civil appeals] without the leave of the Court or the special leave of Her Majesty in Council, except where the value of the matter in dispute is five hundred pounds or more." 

In the case of Rahman v Chase Bank C.I. Trust Co Ltd & others on the question of leave to appeal a decision concerning the lifting of an interim injunction the Court of Appeal referred to a "possible divergence" between the 1961 Law and the Rules.   The Court went on to state however -

"It appears from that [i.e. Rule 2] that there is always a possibility of special leave to appeal being granted by the Privy Council.  Our conclusion is that having regard to the express terms of Article 14 under which we are acting, we do not consider that it is for us to grant leave."[2]

The "possible divergence" between the Rules and the 1961 Law has been discussed and reconciled in the subsequent cases of  Forster v Harbours & Airports Committee[3] and Showlag v Mansour[4].  From these cases it is apparent that the position is as follows:-

(i)         a party to civil proceedings involving subject matter of  a value exceeding £500 may appeal as of right under Article 14 of the 1961 Law;

(ii)        in order to exercise that right, the party must obtain leave to appeal from the Court of Appeal;

(iii)       the Court of Appeal has no discretion to refuse leave if (i) above is satisfied and if the decision was final i.e. a "definitive decision disposing of the parties' rights";

(iv)       the Court of Appeal is not precluded by (iii) above from granting leave conditionally, the usual conditions being that the Record[5] is prepared within a stated period and specified security for costs be lodged within a certain time.  Upon fulfilment of those conditions a further application is made, and an order granting final leave to appeal is made;

(v)        in any other cases, special leave should be sought from Her Majesty in Council.

The purpose of this article is to discuss briefly the procedure involved in an application for special leave to appeal, i.e. when, applying the above principles, the route of obtaining leave from the Court of Appeal is barred.

Unusually, the Rules do not provide a time limit for an application for special leave.  Rule 5 simply says that a petition for special leave should be lodged "with the least possible delay" after the judgment in question.  That said, it is generally understood that six months is approaching the limit after which an application may be considered out of time.

The petitioner serves on the respondent through the Jersey advocate on the record a notice of intended application which refers to the petitioner's intention to apply for special leave.  Thereafter matters of procedure are dealt with by Privy Council agents (usually, although not invariably, firms of solicitors in London) who routinely deal with the Registrar of the Privy Council.

To enable a respondent to obtain copies of the documents lodged by the petitioner and to appear at the hearing, the Rules provide that a respondent must lodge a caveat with the Registrar  giving notice to the petitioner of the same (Rule 48).  This caveat can only be lodged by the respondent's Privy Council agent, and without it, the petitioner need only show that he has served in Jersey the notice of the intended application Rule 4(c).

The petitioner's application is contained in a petition, which Rule 3 provides should succinctly state the relevant facts, deal with the merits of case insofar as it is necessary to explain the grounds upon which special leave is sought, and be signed by the Counsel who is to appear.  The petition is verified by affidavit, usually sworn by a member of the petitioner's Privy Council agents, and six copies of each are to be lodged (Rule 47(3)).  The Registrar may refuse to accept a petition which does not comply with the above requirements or which is otherwise frivolous or scandalous, but the petitioner may appeal by way of motion from such refusal to the Judicial Committee, as stated in Rule 52.

The Rules do not make provision for any reply to the petition to be submitted.  However, in practice, a respondent can file a reply dealing with the points in the petition and annexing any relevant authorities up to three days prior to the hearing.

The criteria for the granting of special leave to appeal are contained in the case of Daily Telegraph Newspaper Company Limited v McLaughlin[6], which was the first case in which special leave to appeal from a decision of the High Court of Australia had been sought.  Lord Macnaghten said the same principles should apply as they did for an appeal from the Supreme Court of Canada.  He referred to the case of Prince v Gagnon[7] in which it was stated that appeals would not be admitted,

"save where the case is of gravity involving a matter of public interest, or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character."

In the period 1994 to 1999, the Judicial Committee heard seven applications for special leave from Jersey of which one only was granted.[8]  However no reasons are given by the Committee for its decision, so reference can only be made to the early cases, two of which are referred to above.

Naturally members of the Jersey Bar have rights of audience before the Judicial Committee.  However so too do members of the English Bar and it is not uncommon for a Q.C. to appear with the Jersey advocate acting as a junior, although Rule 72 provides that at the hearing of an appeal only one Counsel may be heard for each party.  A number of applications for leave are listed at the same time on the same day and they tend to be heard in order of seniority of the counsel appearing.  The hearings are at the Privy Council Office which is in Downing Street, London SW1, and, whilst Counsel are robed, their Lordships are not.

If special leave is granted, the respondent may apply at the same hearing for security for costs of that application and the appeal.  This is done by lodging, prior to the hearing, an affidavit setting out the grounds for requesting security and exhibiting to it a bill of anticipated costs.  Their Lordships may specify a figure in accordance with Rule 6(1)(a), or direct the parties to agree it, in the absence of which the amount is decided by the Registrar.  Rule 8 provides that a petitioner may seek leave to appeal as a poor person. To do so he must lodge an affidavit stating that he is not worth £500 "apart from his apparel and his interest in the subject matter of the appeal and that he is unable to provide sureties".  His Counsel must also certify that he has reasonable grounds for appeal.  If he is granted special leave in that capacity, he is not required to provide security for costs or to pay any fees of the Privy Council office.

If the petition is dismissed, the petitioner may be ordered to pay the respondent’s taxed costs.  Rule 2 of the Judicial Committee (General Appellate Jurisdiction) Rules (Amendment) Order 1990 provides that bills of costs under the orders of the Judicial Committee are to be taxed by the Registrar and are limited to costs incurred in England.  Thus a Jersey advocate's time may well only be recoverable insofar as he appeared at the hearing. The costs order may be on either a standard or indemnity basis.  Rule 79 of the Rules provides that any party aggrieved by a taxation may appeal to the Judicial Committee by way of motion.  If the petition is allowed and leave to appeal is granted, then the costs of that application are considered together with the costs of the appeal itself.

The successful petitioner, having taken the alternative special leave route, thus finds himself in the same position as the party granted leave by the Court of Appeal, i.e. able to proceed with his appeal to the Privy Council.  This alternative route will, however, have taken him an extra month or two and will have cost him substantially more than the party whose leave is granted by the Court of Appeal.

Gillian Robinson is an advocate with Bailhache Labesse, 14 – 16 Hill Street, St. Helier, Jersey.