‘As of Right’ Appeals to the Judicial Committee of the Privy Council | The Bahamas

In the recent judgment in Enos Miller v McKinney, Bancroft & Hughes and Hartis Pinder SCCivApp. No. 27 of 2021, the Court of Appeal of The Bahamas had occasion to review the several avenues of appeal to the Judicial Committee of the Privy Council under Bahamian law in civil proceedings. In considering the established legal authorities, the Court of Appeal clarified for the first time the operation of the avenue of appeal pursuant to Article 104(2) of the Constitution of the Commonwealth of The Bahamas.

It also confirmed the applicability of the rule originating in the United Kingdom House of Lords case of Lane v Esdaile [1981] AC 210 to applications for conditional leave to appeal to the Privy Council. That rule operated to preclude the appeal of a United Kingdom Court of Appeal decision refusing leave to appeal to the House of Lords on the basis, inter alia, that a refusal was not an appealable “order or judgment” within the relevant appellate statute and by parallel reasoning operates to restrict an appeal to the Privy Council from a decision by the Bahamian Court of Appeal refusing conditional leave to appeal.

In the Miller case, the plaintiff’s claim in the court of first instance was dismissed following the determination of a preliminary issue. As the decision on the preliminary issue was interlocutory in nature, leave of the first instance judge was required before an appeal could be filed in the Court of Appeal. The plaintiff’s application for leave was refused and a renewed application for leave to appeal was made directly to the Court of Appeal, which was also refused.

Unsatisfied with the result, the plaintiff applied to the Court of Appeal for conditional leave to appeal to the Privy Council the Court of Appeal’s refusal to grant him leave to appeal.

The plaintiff’s application for conditional leave to appeal to the Privy Council was made pursuant to Article 104(2) of the Constitution and Section 23 of the Court of Appeal Act, 1964. The claim pursuant to Article 104(2) concerned an allegation that the dismissal of his action denied him access to justice and a fair hearing, whilst the Section 23 ground was based on the contention that the value of the claim met the financial threshold required under that section. The plaintiff contended that both avenues provided him with an appeal “as of right”.

The Court of Appeal rejected the Article 104(2) ground, concluding that it could not be invoked by the plaintiff as the requirements set out in Article 104(1) had not been satisfied. Article 104(1) provides for a right of appeal to the Court of Appeal from “… final decisions of the Supreme Court given in the exercise of the jurisdiction conferred on the Supreme Court by Article 28… (enforcement of fundamental rights and freedoms)”. Article 104(2) provides a right of appeal to the Privy Council in respect of, inter alia, any decision of the Court of Appeal rendered pursuant to Article 104(1). Following a review of the plaintiff’s claims made in the first instance court, the Court of Appeal held that the Article 28 jurisdiction had not been engaged in the court below nor was the decision, being interlocutory in nature, one which could be characterised as “final”. Consequently, the right of appeal to the Privy Council provided for in Article 104(2) could not be relied upon by the plaintiff in view of the fact that the Court of Appeal’s refusal to grant leave was not a decision of the Court of Appeal originating from a substantive appeal from a final decision of the Supreme Court exercising the Article 28 jurisdiction.

The plaintiff’s ground pursuant to Section 23 of the Court of Appeal Act was also rejected by the Court of Appeal on the basis that the first limb of that section, when properly construed, only provided for a right of appeal “… from any judgment or order of the court upon appeal from the Supreme Court in a civil action…”. The decision sought to be appealed by the plaintiff to the Privy Council was the Court of Appeal’s decision refusing leave to appeal. That decision was delivered following the plaintiff’s renewed application seeking leave to appeal the preliminary issue decision made pursuant to Section 11(f) of the Court of Appeal Act. The plaintiff’s application was not a substantive appeal from a decision of the Supreme Court but a fresh application seeking leave to appeal directly from the Court of Appeal. Furthermore, the Court of Appeal held that its refusal to grant leave to appeal was not a “judgment or order” upon appeal from the Supreme Court which was appealable to the Privy Council within the meaning of Section 23.

The Court of Appeal cited with approval the authorities of Lane v Esdaile [1891] AC 210, Re Poh (1983) 1 All ER 287 (HL) and the New Zealand Court of Appeal Judgment in Collier v Elders Pastoral Ltd. (1991) 3 PRNZ 478, where Lane v Esdaile was applied. The judgments of their Lordships in Lane v Esdaile were varied in their reasons but consistent in concluding that a “refusal” was not appealable. The judgment of Lord Halsbury is particularly instructive on the issue, where he observed that if the legislature intended that there should be no appeal unless authorised by some particular body identified in the statute, then “[s]urely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave.”

In the final analysis, the plaintiff’s application for conditional leave was dismissed by the Court of Appeal, with the plaintiff/applicant being informed of his right to seek special leave/permission to appeal directly from the Privy Council. The plaintiff availed himself of this right and his application for special leave/permission to appeal was refused.

In its report, the Board stated that “… the appeal is totally devoid of merit and there is no appeal as of right” (see Enos R Miller (Appellant) v McKinney, Bancroft & Hughes and another (Respondents) (Bahamas) JCPC 2022/0012 dated 9 November 2022 – www.jcpc.uk/news/permission-to-appeal-november-2022.html).