Court of Appeal for Bermuda Clarifies Test for Leave to Appeal to the Privy Council

• Issue for the Court to determine
  
  
• "Great general or public importance" and the "or otherwise" test
  
  
• Appeals Act 1911 (1989 Revision)

Bermuda law provides that appeals to the Judicial Committee of the Privy Council for non-money claims will only be allowed for matters which raise questions of “greater general or public importance, or otherwise”. In a judgment dated 22 November 2019, the Court of Appeal for Bermuda has provided welcome clarification as to the application of this test, and confirmed that the “or otherwise” limb of the test cannot be used to seek leave to appeal decisions between private litigants involving the application of settled law Imran Siddiqui and Others v Athene Holding Ltd. (On an application for leave to the Privy Council) [2019] CA (Bda) 15 Civ.

Background

The application before the Court of Appeal for Bermuda (the “Court”) on 7 November 2019 (the “Application”) was an application for leave to appeal the Court’s earlier judgment of 20 September 2019 which had dismissed the appeal of certain first instance decisions declining to stay the proceedings on forum non conveniens grounds or to otherwise strike-out the action. By their Application, the appellants sought leave to appeal to the Judicial Committee of the Privy Council (the “Privy Council”).

Issue for the Court to determine

The Application raised an issue of considerable procedural importance, namely the circumstances in which a party will be granted leave to appeal to the Privy Council.

Applications in Bermuda for leave to appeal to the Privy Council are governed by the Appeals Act 1911 (1989 Revision) (the “Appeals Act”), which provides that appeals to the Privy Council (for non-money claims) shall only lie:

“…if in the opinion of the Court, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision” (emphasis added).

Counsel for the appellants submitted that the Application satisfied the test, for two primary reasons:

1. First, it was said that the matters under appeal raised questions of great general or public importance.
2. Second, it was said that even if the issues were not of great general or public importance, the Court should grant leave to appeal on the “or otherwise” limb.

The Court was therefore required to consider the meaning of the “great general or public importance” test, and determine whether leave to appeal can be given for matters which are not of great general or public importance (and, if so, in what circumstances).

The Court’s findings

Ultimately, the Court determined that the questions involved in the appeal were not of great general or public importance. The Court also foundthat if that primary test is not met, a party could not rely on the “or otherwise” limb to obtain a grant of leave to appeal in circumstances where the applicable law was already settled.

The Court drew a clear distinction between “genuine disputes as to the applicable principles of law” and “disputes as to the applicability of settled principles of law to the facts of the case”, finding that the Application fell into the latter category and therefore must fail. In doing so, the Court referred to and relied upon the commentary of judges of the appeal courts of St Lucia and the British Virgin Islands:

“Where, however, the real question on the proposed appeal is the way this Court has applied settled and clear law to the facts of the case, or whether a judicial discretion was properly exercised, leave will ordinarily not be granted on this ground”.¹

“In construing the phrase “great general or public importance”, the Court usually looks for matters that involve a serious issue of law, a constitutional provision that has not been settled, an area of law in dispute, or a legal question the resolution of which poses dire consequences for the public”.²

The Court ruled that on proper analysis, and on a strict interpretation of the Appeal Act, the appellants were not entitled to have their appeal considered by the Privy Council:

“Important as it is to the parties themselves and interesting as it may be to the wider business community for all its wider implications, this is at core a private dispute about forum conveniens…”

As to the “or otherwise” limb, the Court determined that leave to appeal will not granted on this basis unless the application also satisfies the “great general or public importance” requirement:

“A finding that in these circumstances there are “otherwise” good reasons for the grant of leave to appeal, could readily become a charter for frustration and delay by way of future forum contests, regardless of well-settled principles of governing law”.

Conclusion

The Privy Council is responsible for determining appeals from more than a dozen of the United Kingdom’s Crown dependencies, overseas territories and other independent republics within the Commonwealth (including five of the six laws practiced by Walkers from its ten offices globally).³ It has a significant caseload. Rights of appeal for non-monetary judgments (as opposed to appeals of money judgments in excess of $12,000) are therefore restricted, such as to ensure that only matters of great general or public importance are amenable to appeal. The appeal courts of these jurisdictions therefore have an important gatekeeping role, and must apply their respective tests for leave to appeal strictly.⁴

The Court’s determination that appellants cannot take advantage of the “or otherwise” limb of the test set out in the Appeals Act to seek leave for the appeal of private disputes involving uncontroversial questions of law is a welcome clarification of a hitherto unsettled question of law. The Court has indicated it will strictly apply the test for leave to appeal so as to ensure that only those matters which can be truly said to be of great general or public importance are sent up to the jurisdiction’s final appellate court.