Junkanoo Estate Ltd and others v UBS Bahamas Ltd

An appeal from an interlocutory order requires leave where the applicable statute so provides, and procedural rules may require the application to be made first to the court below. A party who has not sought leave has not exhausted the remedies below. An earlier dismissal for want of leave does not make the appellate court functus in relation to a substantive appeal that has never been heard. Special leave will ordinarily be refused for an interlocutory matter raising no issue of general legal importance, particularly where the lower decisions were plainly correct. On a later application, relevant considerations include arguability, the explanation for delay and any prejudice caused by it.

The appeal arose from mortgage possession proceedings concerning a residential property. The Supreme Court granted summary judgment for the debt and possession, without prejudice to the defendants’ counterclaim. The defendants appealed without first seeking leave from the judge. The Court of Appeal dismissed the applications and struck out the notice of appeal on 2 November 2015. A later application for an extension of time and a stay was dismissed on 6 June 2016 on the basis that the Court of Appeal was functus.

The defendants sought special leave to appeal to the Privy Council. The central issues were whether leave could still be sought below, whether the Court of Appeal remained competent to deal with a substantive appeal, and whether special leave should be granted.

Application for special leave refused. The Board declined leave to appeal from the Court of Appeal’s decisions. It did not determine the defendants’ proposed defence or cross-claim on their merits.

1. Under section 11(f) of the Court of Appeal Act, an appeal from an interlocutory order lies only with leave of the Supreme Court or the Court of Appeal. An order granting summary judgment was interlocutory for this purpose. Rule 27(5) of the Court of Appeal Rules required an application capable of being made to either court to be made first to the court below. The rule stated in White v Brunton [1984] QB 570 had been applied for many years in the Bahamas.
2. The defendants should first have applied to Evans J for leave to appeal. If leave were granted, they could seek an extension of time from the Court of Appeal. If leave were refused, they could seek leave and an extension from the Court of Appeal. A stay of execution could be sought with those applications.
3. The Court of Appeal’s earlier decision did not make it functus in relation to the substantive appeal. Its inability to act concerned only the procedural point previously decided, namely that no competent appeal was before it because leave had not been sought or obtained. No substantive appeal had been heard.
4. The Board would not ordinarily entertain an appeal from an interlocutory order of this nature. The application raised no issue of general legal importance and, in the absence of any application to Evans J for leave, the Court of Appeal’s decisions were plainly correct.
5. The Board gave no view on any future application. Relevant matters would include whether the proposed appeal was arguable, the explanation for the delay, including what had occurred meanwhile, and any prejudice caused to UBS.

• Privy Council: On 3 April 2017, special leave to appeal from the Court of Appeal’s decisions was refused.
• Court of Appeal of the Commonwealth of the Bahamas: On 2 November 2015, the applications were dismissed and the notice of appeal was struck out because leave had not been sought. On 6 June 2016, a fresh application for an extension of time and a stay was dismissed on the basis that the court was functus, limited to the earlier procedural point.
• Supreme Court of the Bahamas: Evans J granted summary judgment for the debt and possession on 23 March 2015, without prejudice to the defendants’ counterclaim. No application for leave to appeal was made to Evans J.