Appeals to the Privy Council – 2022 was a very good year

The first was Prickly Bay Waterside Ltd (Appellant) v British American Insurance Company Ltd (Respondent) (Grenada) [2022] UKPC 8 where Blake Morgan acted for the successful respondent in an appeal about a trust for a specified purpose. In a pattern which was to become familiar later in the year, counsel for the respondent was not called upon.

View the judgment here.

Then came Williams v Casepak Company (Grenada) Ltd (t/a Calabash Hotel) (Grenada) [2022] UKPC 9 where unfortunately the appellant for whom Blake Morgan acted in this employment appeal was unsuccessful.

View the judgment here.

Two appeals on concurrent findings of fact emphasised the Board’s practice in such cases and are featured in full here.

In Glory Trading Holding Ltd (Appellant) v Global Skynet International Ltd and another (Respondents) (Anguilla) [2022] UKPC 35, Blake Morgan acted for the respondents who were not called upon and the appeal was dismissed.

In Sancus Financial Holdings Ltd and others (Appellants) v Holm and another (Respondents) (British Virgin Islands) [2022] UKPC 41, Blake Morgan acted for the respondents who were not even called upon and the appeal was dismissed.

As is explained at in our previous article the consequences which flow from the practice are of fundamental importance.

• An appellant in such cases has a ‘high hurdle to overcome’.
• The practice is a “super-added constraint” over and beyond the reluctance of any appellate court to interfere with findings of primary fact by the trial judge.
• The Board is likely to ‘require the appellant to demonstrate, as a preliminary condition, that there exist exceptional circumstances which justify a departure from the practice, before the Board will proceed with the appeal any further’.
• The ‘requisite exceptionality’ will need to be demonstrated in clear terms in the appellant’s written case and, if the Board is not persuaded by pre-reading it, established at the outset of the hearing by concise oral submissions. In one case, counsel for the appellant was given 30 minutes to argue that a departure from the practice was justified and, as he did not succeed, the appeal was then dismissed without even hearing submissions from the respondent.

And as if these two decisions did not provide a sufficient disincentive to appellants, the Board in Water and Sewerage Authority of Trinidad and Tobago (Appellant) v Darwin Azad Sahadath and another (Respondents) (Trinidad and Tobago) [2022] UKPC 56 ordered the appellant to pay the respondents’ costs on the indemnity basis as no ‘properly arguable reason has been given for inviting the Board to undertake our own assessment of whether the evidence at the trial was sufficient to prove that the leaks from the Authority’s pipeline caused the damage to the claimants’ home and to substitute our opinion on this issue for the concurrent findings of the courts below.’ The appellant was given the opportunity to make submissions as to why indemnity costs were not appropriate.

View the judgment here.

[Note: Blake Morgan did not act in this appeal.].

Last but not least is Kwok Kin Kwok (Respondent) v Yao Juan (Appellant) (British Virgin Islands) [2022] UKPC 52 where Blake Morgan acted for the successful appellant. The issues in this appeal were whether the Court of Appeal was wrong to: (i) reverse the trial judge’s decision on the facts; (ii) set aside the trial judge’s appointment of a liquidator and order much more limited relief; (iii) refuse to admit fresh evidence.

• On (i), the Board found for the appellant and restored the findings of the trial judge.
• On (ii) the Board decided there was ‘an ample basis for the Judge’s decision that in the circumstances of this case, the appropriate order was an order for the winding-up of Crown Treasure’. Dame Geraldine Andrews said this at para 111:

• As for (iii) the Board decided at para 105 that if ‘the Ladd v Marshall conditions are met, and it is in the interests of justice to admit the evidence, it should not matter which of the parties makes the application to adduce it. On this point, therefore, the Court of Appeal was plainly wrong to find that the [respondent’s] application fell at the first hurdle.’

View the judgment here.

The Privy Council Team