Parish of St Helier v Minister for Infrastructure

JurisdictionJersey
CourtCourt of Appeal
JudgeMartin JA
Judgment Date30 May 2017
Neutral Citation[2017] JCA 76
Date30 May 2017

[2017] JCA 076

Court of Appeal

Before:

James McNeill, Q.C., President;

John Martin, Q.C., and

Sir David Calvert-Smith, Q.C.

Between
Parish of St Helier
Appellant
and
Minister for Infrastructure
Respondent

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

Her Majesty's Solicitor General appeared for the Respondent.

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.

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

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 .

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