E. Anthony Ross v Bank of Commerce (Saint Kitts Nevis) Trust and Savings Association Limited (St Christopher and Nevis)

An appeal expressed by a local constitution to lie as of right does not bypass procedural permission requirements for an appeal to the Privy Council. The appellant must obtain leave from the local Court of Appeal or, if leave is not obtained, special leave from the Privy Council. The local court’s grant of leave is not discretionary; it confirms the right of appeal and permits only legally authorised conditions. The 2009 Rules and associated Practice Direction did not abolish that established scheme. The Privy Council may exceptionally refuse special leave where an appeal is wholly devoid of merit and bound to fail, but special leave is appropriate where the appeal is as of right and clearly arguable.

E. Anthony Ross claimed US$410,000 and interest from the Bank of Commerce in respect of two certificates of deposit. He obtained judgment at first instance, but the Court of Appeal of St Christopher and Nevis set that judgment aside on 25 January 2010.

Mr Ross filed a notice of appeal to the Privy Council, relying on section 99 of the Saint Christopher and Nevis Constitution Order 1983 and arguing that no permission was required because the appeal was as of right. The Board considered whether permission remained necessary under the 2009 Rules and, if so, whether special leave should be granted.

Disposition. The Board rejected the contention that the appeal could be filed directly as of right. It treated the proceedings as an application for special leave and granted special leave to appeal. The parties were permitted to make written submissions within 21 days on consequential matters and costs.

1. The established practice required an appellant in an appeal expressed by the local constitution to be as of right to obtain leave from the court appealed from or, if that was not obtained, special leave from the Privy Council. The combination of the Judicial Committee Act 1833, section 3, and the Judicial Committee Act 1844, section 1, confirmed the Privy Council’s general power to grant special leave.
2. Under Electrotec Services Ltd v Issa Nicholas (Grenada) Ltd [1998] 1 WLR 202, leave from the local court was not discretionary. Its purpose was to confirm that the appeal was as of right and to impose only conditions permitted by local law.
3. The 2009 Order and Rules did not displace the local procedural scheme. The partial revocation provision concerned powers and procedure before the Judicial Committee. The constitutional and local-law provisions governing applications to the Court of Appeal remained in force. Practice Direction 1 was supplementary guidance and carried interpretive weight, subject to the Rules.
4. The Privy Council could exceptionally refuse special leave even where an appeal should be as of right, for example where the appeal was wholly devoid of merit and bound to fail, as recognised in Crawford v Financial Services Institutions Ltd [2003] UKPC 49. That exception did not apply. Mr Ross’s interpretation of the new Rules was properly arguable, the proposed appeal was clearly arguable, and he would have been entitled to appeal as of right had he applied to the Court of Appeal.

1. Privy Council: In [2010] UKPC 28, the Board rejected the direct appeal as of right but granted special leave to appeal.
2. Court of Appeal of St Christopher and Nevis: On 25 January 2010, set aside the first-instance judgment.
3. First instance: Judgment was entered for Mr Ross. The date and citation are not stated in the judgment.