Cayman Islands: Change To The Test Regarding Leave To Appeal To The Privy Council

On 4th November 2016, the Court of Appeal in Botas v Tepe [2016] JCA 199D made clear that, in respect of applications made to it for permission to appeal to the Privy Council, its practice going forward will be to normally refuse such permission so as to enable the Judicial Committee of the Privy Council to select itself, from the applications before it for permission to appeal, the cases raising the most important issues.

In so doing, the Court of Appeal endorsed the statement made by Lord Reed in the United Kingdom Supreme Court in the case of in Uprichard v Scottish Ministers [2013] UKSC 21, where he 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."

Although Lord Reed's statement was said in the context of an appeal from the Court of Session and was therefore to be considered as obiter, it was said in the context of the criteria applied by the Appeal Panel of the Supreme Court when considering the grant of permission to appeal by reference to paragraph 3.3.3 of the Supreme Court Practice Direction 3 ("the Supreme Court Practice Direction") which states that:

"Permission to appeal is granted 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..."

The formulation of "an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time" is the same as that applied under the relevant procedural rules to an application for permission to appeal to the Judicial Committee of the Privy Council on appeal from the Court of Appeal of Jersey. The Court of Appeal considered that such a formulation must necessarily encompass a consideration as to the immediacy of the need to address the point of law which, the Court of Appeal concluded, 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, the Court of Appeal 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 the Court of Appeal should grant leave.

Walkers act for Botas in the litigation.

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