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The Jersey Law Review – February 2006
APPEALS TO THE PRIVY COUNCIL
Richard Southwell
1 The purpose of this article is simply to consider the present position as regards appeals to the Judicial Committee of the Privy Counsel (the PC), and to make modest proposals for improvement.
2 Until 1964 the only mode of appeal beyond the Royal Court was to the PC. Between the end of the Second World War and 1964 efforts were made to establish an intermediate Court of Appeal. These succeeded with the Court of Appeal (Jersey) Law 1961 (the 1961 Law) which came into force in 1964. The reasons for establishing a Jersey Court of Appeal (the CA) included –
(i) the need for a cheaper and speedier mode of appeal;
(ii) the existing limits on the ability of the PC to accept appeals which would not apply to the CA.
3 Before 1964 appeals to the PC (even in the 19th century when the services of lawyers were cheaper) were relatively rare, it appears because of expense and delay and factor (ii) above. It was recognised that by 1964 there had arisen a much wider range of cases in which cheaper and more speedy appeals might be necessary or desirable. It was to be the function of the CA (like the Court of Appeal of England and Wales on which it was modelled) to hear this wider range of appeals more speedily than the PC, at a lower cost than would ordinarily be incurred in appealing to the PC, and without the limits on the appeals going to the PC.
4 The limits on the PC’s acceptance of appeals before 1964, as well as since that date, are summarised in Halsbury’s Laws of England, Volume 10, 4th Edition Reissue of 2002, paragraphs 419 and 420, which (so far as is material here) reads as follows -
“419. Special leave in civil cases. It is not the practice of [the PC] to grant special leave to appeal unless the case raises either a far-reaching question of law or matters of dominant public importance, and however proper a case may be for serious consideration, it will not be dealt with if the practical issue has been solved otherwise, for example by legislation. Special leave will not be granted in order that an abstract point of law which did not arise in the case may be determined. Leave will also be refused where the case can best be decided in the Court below.
[Questions about costs are dealt with].
In certain cases it is probable that [the PC] will grant special leave to appeal, for example where the question is as to the construction of an Act and is of general interest in the country concerned; where the custody of children or the liberty of the subject is concerned; with a view to preventing further litigation or avoiding unnecessary litigation; or where the question at issue is one of great importance, irrespective of money value, or raises the question of the jurisdiction to entertain appeals.”
“420. Special leave in criminal cases [The PC] does not as a rule grant special leave to appeal in criminal cases except where questions are raised of great and general importance which are likely to occur often and where the due and orderly administration of the law is shown to be interrupted or diverted into a new course, which might create a precedent for the future, and where there are no other means of preventing these consequences, or it is shown that, by a disregard of the form of legal process or by some violation of the principles of natural justice or otherwise, substantial and grave injustice has been done.”
5 As I will indicate more fully below, these limits have in recent years been abandoned by the PC, without any explanation of its reasons for such abandonment.
6 The CA was established in 1964 on the basis (inter alia) that these limits would apply to attempts to appeal to the PC from the CA, with one exception (an exception which was then fairly common amongst countries from whose courts appeals might lie to the PC). This is the exception set out in Article 14 of the 1961 law, which as now amended provides -
“No appeal shall lie from a decision of [the CA] under this Part of the Law [Part II concerning “Appeals in Civil Causes and Matters”] without the leave of [the CA] or the special leave of [the PC], except where the value of the matter in dispute is ten thousand pounds or more.”
7 Article 14 is the only provision in the 1961 Law dealing with appeals from the CA to the PC in civil causes and matters. There is no provision in the 1961 Law providing for appeals from the CA to the PC in “criminal and quasi-criminal matters” (which are dealt with in Part III of the 1961 Law).
8 This short introduction suffices as the background to the points of concern which I now set out.
9 The first point of concern is that there is no time specified within which an application for leave from the CA or for special leave from the PC, to appeal from the CA to the PC must be made. This has the potentially absurd result that an application may be made out of the blue, long after the judgment and order of the CA have been assumed to be the final determination of the matter. That happened recently in the case of Pirito v Curth in Guernsey. In my view this lack of any time-limit should be remedied by requiring that all applications for leave to appeal to the PC are to be made on or within 7 days after the day when the judgment of the CA sought to be appealed against is delivered or handed down, or within 28 days following a refusal of leave by the CA. Provision can be made for the grant of extensions of time in exceptional cases.
10 In cases in which the CA gives leave, or the exception in Article 14 of the 1961 Law applies, the question of time limits is dealt with by the CA. But it may be wise to make express provision for an appropriate timetable.
11 It seems to me that the lack of time limits considered in paragraph 8 is so obvious a lacuna, and provides so obvious an opportunity for civil litigants to drag out the appeal process, that it would be wise to make the remedial change I have mentioned as a matter of urgency.
12 The second point of concern relates to the exception in Article 14 of the 1961 Law. This apparently gives to a civil litigant an absolute right to appeal to the PC “where the value of the matter in dispute is ten thousand pounds or more”. The logic of having such an exception in 2006 is hard to find. Today most cases worthy of being taken on appeal to the PC are not concerned with money or money values, but cases about the rights of the individual, or disputes about children, or judicial review matters concerning administrative decisions. Further, a case involving £10,000 is today, for many people and many companies, a relatively small case. This can be seen, for example, by considering the effect of costs. An advocate working 8 hours a day for 5 days at £250 an hour (not a startlingly high rate in Jersey) would earn £10,000. So if two rival advocates in such a case each worked for 20 hours on the case the legal costs would be equal to the sum in issue. If the limit were raised perhaps to £100,000 immediately, and then inflation-linked, there might be some sense in having an exception related to the amount in issue. But this would not meet the other point that, if leave were required in all cases, it would be more likely to be given in cases concerning individuals’ rights, children, and judicial review of administrative decisions, than in cases merely involving money or things of a particular monetary value.
13 In my view, whatever may have been thought in 1961 or 1964 to be the logic behind the exception to article 14, there is today little sense in maintaining the exception. In Pirito v Curth the Guernsey Court of Appeal held that the apparent right to appeal could not be exercised where to do so would amount to an abuse of process. The sensible approach would be to require leave of the CA, or special leave from the PC, in every case.
14 The third point of concern is that today the principles summarised in the passages from Halsbury’s Laws quoted in paragraph 3 above have been abandoned by the PC. The PC now adopts the position that, if the judges of the PC hearing the petition for special leave think that there is an arguable point, special leave can be granted. Before considering this third ground it is convenient to set out the fourth ground.
15 The fourth ground of concern is that the PC has also abandoned other well-established limits on its decision-making powers. To illustrate why it is that I draw attention to these third and fourth grounds, I refer to some recent cases.
16 In Snell v Beadle the PC considered the long-standing rule of Jersey customary law that a shortfall in price paid for real property, whereby the seller received less than half of the juste prix (the objectively determined market value of the property at the time of the sale), amounted to a dol réel which was sufficient in itself to give rise to the remedy for déception d’outre moitié, namely to call on the buyer to make good the shortfall so as to maintain the bargain, or to return the property to the seller. Though this rule had been long established in relation to transactions in realty, the majority in the PC held that the remedy was not available in the case of a servitude such as a right of way, because no juste prix could have been determined objectively at the time of sale. Whether the result of the case was right or not and whether the majority or the minority in the PC was right, it is not for me to say as I was a member of the Court of Appeal in that case. The majority judgment shows that -
(i) The PC was excluding from the long-established rule one class of real property transactions, and thereby changing by judicial decision the established customary law of Jersey. Such a change by judicial decision had previously been regarded as inappropriate in cases involving Jersey customary law, especially concerning real property.
(ii) In making this change the PC relied on its conclusion that no juste prix could objectively have been determined at the time of sale because any such right of way was “a thing of doubtful value” within the exception laid down in Godfray v Godfray. This was a conclusion arrived at without evidence to support it, and despite the contrary evidence cited by the minority in paragraphs 62 – 63 of the dissenting opinions. It is certainly unusual for the PC to change the Jersey customary law, and to do so on a basis inconsistent with the evidence given in the case.
(iii) The majority relied to a substantial extent on conclusions drawn from Roman law and the law of Scotland. The majority appeared not to know that in Vaudin v Hamon(a case apparently not cited in Snell v Beadle) the PC on a Guernsey appeal had unanimously concluded that despite some similarity between Roman law at various periods (bearing in mind that Roman law changed not a little over a period of more than 1,500 years) and Jersey and Guernsey laws, the “similarity is too general and approximate character to be of much assistance in a particular case”. Similar concerns about the use of Roman and Scots laws as guides had been expressed by the Jersey Court of Appeal in Foster v Att. Gen.
17 Thus Snell v Beadle indicates a new readiness of the PC to change Jersey customary law by judicial decision, and also a readiness to rely on analogies from Roman law or cases decided in countries contrary to the PC’s own previous warning, and without any detailed examination of the context of foreign law in which such cases were decided or the many changes over the centuries in Roman law principles.
18 The next case is the rather unusual one of Gheewala v Compendium Trust Co. Ltd. The point was a simple first interlocutory point of forum conveniens – whether the more appropriate forum was Jersey or Kenya. The interlocutory point was decided by the Bailiff in the Royal Court in favour of Kenya, and then by the CA in favour of Jersey. Questions of forum conveniens obviously need to be decided speedily. This has been laid down often in England and Wales by the House of Lords (see for example the speech of Lord Templeman in Spiliada Maritime Corp v Cansulex Ltd) and by the CA here. Nevertheless the PC granted special leave to appeal, ignoring the PC decisions on the limits summarised in Halsbury’s Laws (paragraph 3 above). There was no question of importance involved in the case. The PC decided the appeal 4½ years after the Court of Appeal had delivered judgment (17th June 1999 to 18th November 2003). This meant that a simple interlocutory point decided by the Bailiff on 16th July 1998 was not finally decided on the second appeal by the PC until 5½ years later, when the parties were barred from proceeding in an action started in Jersey on 4th February 1997 and left to start an action in Kenya approximately 7 years later. Whether the PC and the Bailiff were right, and the CA wrong (or vice versa), is not of importance. What matters is that the long delay in reaching a final decision, on the initial interlocutory point in the dispute, was not appropriate.
19 Another rather unusual case was Att. Gen. v Holley. That was a criminal case of murder. The only defence was provocation. The House of Lords had previously held in R v Smith (Morgan) that in relation to such a defence, the jury when considering the defendant’s reaction to the provocation, and comparing it with the reaction of a hypothetical reasonable person, should be directed to make a comparison with a reasonable person having the same major characteristics as the defendant (in Holley, the condition or disease of long-standing alcoholism). There were two effective trials in Jersey (a third having had to be aborted). For the purposes of each trial it was agreed by the Judge, the Attorney General and the Advocates for the defence that Jersey law should be taken to be, in this regard, the same as English Law, and the jury should be directed accordingly. The CA set aside the verdict in the first trial for misdirection of the jury. The CA did the same in the second appeal, and then, refusing to order yet another trial, entered a verdict of manslaughter. The Attorney General sought special leave from the PC. The Attorney General could not argue that the CA had gone wrong in relying on R v Smith (Morgan), because all had agreed at all three trials, and on both appeals before the CA, that the law as stated in R v Smith (Morgan) applied. But the PC persuaded the Attorney General to argue that R v Smith (Morgan) did not represent Jersey law on provocation; and later the Attorney General undertook that he would not seek to overturn the verdict of manslaughter. It followed that the appeal turned on an academic point which did not arise for determination in Holley. It is apparent that what the PC intended was to use Holley in order, if possible, to decide whether in English law R v Smith (Morgan) had been wrongly decided, on the footing of an assumption that English and Jersey law in this regard are to be treated as being identical. That is in fact what the majority of six Law Lords in Holley did. It has been noted in England that the majority judgment was delivered by a judge who had had no experience of English criminal law until he became a Law Lord, and that the same point applied to all the judges in the majority. The only judge who had had this direct experience was Lord Bingham who with Lord Hoffmann delivered the main dissenting opinion; though Lord Carswell had had parallel and similar experience in Northern Ireland (especially as Lord Chief Justice) and he agreed with Lord Bingham while adding reasons of his own.
20 Holley was an unusual case, because (inter alia) -
(i) a Jersey appeal heard by the PC was used as a vehicle for changing English law by trumping R v Smith (Morgan), though technically English courts are still bound by the House of Lords decision in R v Smith (Morgan).
(ii) an appeal which was academic because it could have no effect as regards the defendant Holley was allowed to be pursued, contrary to the principles laid down by the PC itself (paragraph 3 above).
The substantial costs on both sides of this appeal to the PC no doubt fall on the tax payers of Jersey, in addition to all the costs of the trials and appeals to the CA.
21 As already mentioned, there is nothing in the 1961 Law enabling appeals to be taken to the PC in criminal or quasi-criminal matters. Nevertheless the PC has always assumed the jurisdiction to grant special leave in a criminal case, subject to the limits summarised in Halsbury’s Laws and in paragraph 3 above. The only appeal which could ordinarily be pursued in Holley (it having been agreed that R v Smith (Morgan) was to govern) was one of no “great or general importance”. Holley only became such a case because the Attorney General was persuaded by the PC to argue a point agreed not to be taken in all the lower courts.
22 Other cases in which the PC has given special leave despite the cases raising no question of general importance include Hotchkiss v Channel Islands Knitwear Co. Ltd. which involved a relatively straightforward personal injury claim and, like Gheewala, no question of general importance.
23 I will not lengthen this part of this article by reference to other such appeals from Jersey (or Guernsey).
24 I summarise the position as regards the third and fourth points of concern (paragraphs 13 and 14 above).
(i) The PC will now grant leave in any case in which it considers that the application for special leave raises an arguable point.
(ii) The PC no longer pays attention to the limits on the grant of special leave in civil and criminal cases (paragraph 3 above) and gives leave in civil and criminal cases where no point of general importance arises.
(iii) The PC is prepared to change Jersey customary law relating to real property by judicial decision, thereby departing from the long-established custom for the Courts not to make any such change.
(iv) The consequence of (iii) is that it is apparently now open to the lower courts (the Royal Court and the CA) similarly to make changes in Jersey customary law relating to real property, a development which in my view is not a little unwise.
25 The fifth point of concern relates to cost and delay. In England and Wales there has been a strong move towards a system under which one level of appeal is available, and a second level of appeal is reserved for only cases raising questions of real general importance. Having two levels of appeal is expensive and productive of delay (as Gheewala illustrates so clearly). This is a point of particular relevance for an Island community of only 87,000 inhabitants. There is a genuine choice to be made.
(i) Do the citizens of Jersey wish to have expensive and slow justice, with litigants in civil cases and the Crown and defendants in criminal cases being able to appeal twice? Or
(ii) Do they wish to have less expensive and less slow justice with second level appeals to the PC being reserved for cases of real general importance?
26 In my view, based on my experience in the Jersey Court of Appeal, and having regard to the needs of this Island community, these questions admit of only one answer, that the right approach is to reserve second level appeals for cases of real general importance and no others. In this way the cost to civil litigants, and the cost to the Jersey taxpayer in criminal cases, can be reduced sensibly. This is subject, however, to the view I express on second-level appeals in criminal cases in paragraph 28 below.
27 The CA is not always right in its decisions, however hard it may strive to reach the correct answers. But the quality of the judges now forming the CA (since my departure from office) is such that not infrequently the quality of the CA is at least as high as that of the PC. It would be invidious to pick out names of those now sitting. But if one looks to the immediate past, a CA bench comprising 3 members out of Sir Godfray Le Quesne QC, the Rt. Hon. Lord Neill of Bladon QC, Sir David Calcutt QC, Lord Clyde, Lord Hoffmann and Lord Hamilton was as strong a Court as any in the House of Lords or the PC at that time.
28 As regards criminal appeals, it may further be considered whether any second level appeals are needed. In Scotland (a much larger jurisdiction than Jersey or Guernsey) appeals go to the High Court of Justiciary, and there are no second level appeals, except for constitutional devolution appeals to the PC. The Scottish criminal justice system works well without second-level appeals to the House of Lords. There is a body of legal opinion in England and Wales that such second-level appeals are not necessary, and this is linked to concern that the majority of the Law Lords have had no experience of the criminal justice system in England and Wales before reaching the House of Lords. Looking back over the whole range of decisions in criminal cases during my 45 years at the Bar, my view is that it is debatable whether the second-level appeals to the House of Lords have been of advantage. In some branches of criminal law, for example, criminal attempts, the multiplicity of different definitions of recklessness, and provocation, the second-level appeals have led to confusion rather than clarity. The same judges sitting as the PC have caused considerable confusion in the death row cases from the Caribbean states. For communities as small as Jersey (or Guernsey) the value of having second-level appeals in criminal cases is small, and may not be worth the extra expense to the Jersey taxpayer.
29 My proposals in the light of the matters already set out, my proposals for Jersey are these –
(i) There should be no appeals to the PC unless the CA or the PC have given leave.
(ii) Applications for leave to appeal to the PC should be required to be made -
(a) to the CA, when the judgment to be appealed against is delivered or handed down or within 7 days thereafter;
(b) to the PC, within 28 days of refusal of leave by the CA.
Provision should be made for these time limits to be able to be extended by the CA when any such extension is necessary in exceptional cases.
(iii) Leave should not be able to be granted by the CA or the PC in civil cases unless the requirements summarised in paragraph 4 above are met - when the case raises a question or questions of general public importance.
(iv) For criminal cases, consideration should now be given to the question whether in future there should be any appeals to the PC.
(v) If appeals to the PC in criminal cases are to be permitted, leave should not be able to be granted by the CA or the PC unless the requirements summarised in paragraph 4 above are met - when the case raises a question or questions of great and general importance.
30 These proposals so far as concerns civil appeals are, in greater part, in line with the recommendations made by the Guernsey Court of Appeal in Pirito v Curth (see paragraph 9 above) at paragraph 41 of the judgment.
Richard Southwell QC was a judge of the Jersey and Guernsey Courts of Appeal between 1994 and 2005.
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