Developments in the JCPC

28th September 2023

Not all cases heard by the Judicial Committee of the Privy Council (JCPC) Board are appeals ‘as of right’, where leave to appeal is granted by the court appealed from. There are cases where, for a variety of reasons, an appellant has to seek permission (leave) to appeal from the Board. Paragraph 3.3.3 of Practice Direction 3 sets out the various tests for the grant of permission to appeal.

3.3.3 Permission to appeal is granted

  • a. in civil cases 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 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; an application which in the opinion of the Appeal Panel does not raise such a point of law is refused on that ground;
  • b. in criminal cases for applications where, in the opinion of the Appeal Panel, there is a risk that a serious miscarriage of justice may have occurred;
  • c. In cases in which the appellant had an appeal as of right but the court appealed from refused in error to grant leave as of right, unless in the opinion of the Appeal Panel the appeal is devoid of merit and has no prospect of success or is an abuse of process.

Applications for permission to appeal are determined on paper by three members of the Board and the Appeal Panel will receive a batch of applications to the Board together with a number of applications to the UK Supreme Court. Only brief reasons are given if permission to appeal is refused and from time to time the decisions of the Appeal Panels are posted on the JCPC website. See the JCPC website here.

Whether or not an appellant will obtain leave to appeal as of right from the court appealed from, depends on the legislation which applies in the relevant jurisdiction. But in a new initiative the Board is “considering sifting appeals as of right early in the process to identify meritless appeals and appeals challenging a second finding of facts”.

The process is not provided for in the JCPC Rules or Practice Directions but was touched upon in the minutes of two recent User Group meetings. See the Supreme Court website here.

User Group meeting November 2022 held In Cayman

  • (a) The ability of the Board to summarily dismiss ‘appeals as of right’ Lord Briggs introduced an item on summary dismissals for ‘appeals as of right’ that are totally without merit (TWM). This means there is no arguable point for appeal to proceed. A screening process has been introduced to discover this in advance of the appeal hearing which will lead to reduced costs. A panel of three Justices will decide whether to strike out the appeal after sending the appellant a “minded to” letter. A discussion followed and some attendees agreed that speed and costs savings are important to their clients.

User Group meeting January 2023

  • i) Summary dismissal of appeals as of right. Whilst the Board’s power to dismiss appeals summarily was usually exercised on application it was considering sifting appeals as of right early in the process to identify meritless appeals and appeals challenging a second finding of facts. Currently if these issues arise it is at too late a stage to do anything about it. Doubtful appeals will be referred to a single justice who will, if they think there is good reason, invite written submissions. Those will be considered by a three judge panel and, if found wanting, will be struck out. If this process catches significant numbers of cases it would reduce the burden on parties and the court. It is also being discussed with the judiciaries.

The position of the respondent in these situations was raised by Blake Morgan at the User Group meeting held in July 2023. A respondent will be informed if the Board is considering striking out the appeal but input from the respondent is not required.

It will be interesting to see how this new procedure plays out in cases before the Board, and the effect on the parties. The Board appears to anticipate a procedure requiring no input from the Respondent, but we wonder whether a respondent will wish just to stand by and await the Board’s decision. Whatever the stance a respondent adopts, it would be unusual for a respondent not to want to recover some of the costs which have been incurred so far in responding to the appeal.

This screening process, which is in its infancy, indicates the Board’s more stringent approach to dealing with unmeritorious appeals. This trend can be seen in the decisions posted so far this year which show a distinct decline in the number of cases where permission to appeal is granted.

Time period when applications consideredTotal number of applications decidedNumber grantedGrant rate as percentage
May31 in part33%
Total in period January – July47715%

The average grant rate for the first seven months of this year is therefore just under 15% (at 14.89%). The likely prospects of success, coupled with the costs liability which arises if permission is refused, may well deter many clients from applying for permission to appeal.

Given this trend and the introduction of the screening process, it is more important than ever for litigants and law firms in JPC jurisdictions to seek advice and assistance to not only ensure that the grounds are well argued and presented, but also on how Respondents can potentially use the screening procedure to their advantage when an appeal appears entirely without merit.

Blake Morgan’s Privy Council Team have vast experience in assisting litigants and law firms in JCPC jurisdictions on applications for permission to appeal and are on hand to assist litigants and law firms in ensuring that you are well placed to navigate these hurdles and maximise your chances of a successful application for permission. Please contact a member of the experienced team for an initial discussion about your appeal.

Louise di Mambro, Nicola Diggle and Joe Cowles

The Privy Council Team

The Privy Council team has a distinguished record

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