Privy Council rejects Court of Appeal’s interpretation of new rules

29 November 2010

In 2009 the rules governing the Privy Council as the supreme court for overseas states and territories were modernised. The former express requirement that leave to appeal be obtained, either from the relevant Court of Appeal or from the Privy Council itself, was removed. The Court of Appeal of the Eastern Caribbean concluded that litigants whose states’ constitutions confer an appeal in certain civil cases should therefore file in London without further reference to the local courts.

In Ross v Bank of Commerce (Saint Kitts Nevis) Trust and Savings Association Ltd (in liquidation) [2010] UKPC 28; [2010] WLR (D) 297, (2010) Times, November 29, the Privy Council (Lords Phillips, Mance and Collins) held that no such change had occurred. The rule that leave to appeal be sought from the Court of Appeal is part of the constitutional law of the state (in this case St Kitts and Nevis) and as such could not have been amended by the 2009 UK Order in Council which reformed the Privy Council’s rules. Parties should therefore continue to go to the Court of Appeal to show that the case falls within the class where an appeal to the Privy Council lies as of right.

Since the appellant would have been entitled to leave from the Court of Appeal, the Privy Council granted special leave to appeal. The Privy Council will hear the merits of the appeal (which concerns entitlement to sue on certificates of deposit) in 2011.

Thomas Roe appeared (with Karl Hudson-Phillips QC) on behalf of the successful respondent liquidators.

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