Rubis Bahamas Ltd v Lillian Antionette Russell (The Bahamas)

For a statutory value threshold governing an appeal as of right, the relevant value is what is at stake on the appeal. It is assessed by reference to the judgment under challenge and the interests of the appealing party, rather than the amount originally pleaded.

• For a defendant, the measure is the amount awarded against it.
• For a claimant, it is the value of the claim dismissed and pursued on appeal.
• The approach applies to liquidated and unliquidated claims, including general and special damages. Value may be established by evidence and need not be a precise pleaded sum.

The Board held that Paul F Major v First Caribbean International Bank (Bahamas) Ltd was wrongly decided and confined the broader reading of Zuliani v Veira.

Ms Russell claimed damages in tort from Rubis for property contamination allegedly caused by fuel leaks from an adjacent petrol station. Thompson J found liability for leaks in 1994 and 2012/13 and awarded $692,825.14. The Court of Appeal allowed the appeal concerning the 1994 leak, upheld liability for the 2012/13 leak and reduced the award to $159,450. It dismissed Rubis’s application for permission to appeal.

Rubis sought special leave, contending that it had an appeal as of right under section 23(1) of the The Bahamas Court of Appeal Act. The preliminary issue was whether the statutory phrase concerning the amount sought to be recovered referred to the judgment under appeal or to the original claim, and whether unliquidated damages were excluded.

1. Disposition. The Board determined the preliminary issue in Rubis’s favour. The judgment under appeal awarded $159,450, exceeding the statutory threshold of $4,000, so Rubis had an appeal as of right. The full appeal was to follow on a date to be fixed.
2. Construction of the statutory threshold. Section 23(1) of the The Bahamas Court of Appeal Act had to be interpreted in context and in light of the purpose of a value threshold. The relevant amount was that sought to be recovered at the time and for the purpose of the appeal. It was not the amount originally pleaded. The purpose was to require leave for small or minor appeals while allowing appeals as of right in other cases.
3. Measure of value. The established approach, reflected in Macfarlane v Leclaire (1862) 15 Moo PCC 181, Allan v Pratt (1888) 13 App Cas 780 and Walter Fletcher v Income Tax Comr [1972] AC 414, was to look at the judgment as it affected the interests of the party prejudiced by it. For a defendant appellant, the relevant amount was the sum awarded against it. For a claimant appellant, it was the value of the claim dismissed and pursued on appeal.
4. Nature and proof of the claim. Section 23(1) drew no distinction between liquidated and unliquidated claims, or between general and special damages. Every monetary claim had a value. A precise pleaded sum or absolute certainty was unnecessary, although evidence could be required in borderline or disputed cases. The burden of establishing that the threshold was met lay on the applicant. A decision final as to liability could be appealable even if damages remained to be assessed.
5. Zuliani v Veira [1994] 1 WLR 1149 and Paul F Major v First Caribbean International Bank (Bahamas) Ltd. The reference in Zuliani to an award of unliquidated damages was understood as referring to a judgment awarding no amount, akin to damages remaining to be assessed. To the extent that the passage suggested a general exclusion of unliquidated claims, the established line of authority was to be followed instead. Major, which adopted that exclusion, was wrongly decided. Interlocutory decisions remained outside the right of appeal, but the decision in Zuliani was not interlocutory.

1. Privy Council. On 18 March 2025 the Board determined that Rubis had an appeal as of right against the Court of Appeal’s substantive judgment. The full appeal was to be heard later.
2. Court of Appeal of the Commonwealth of The Bahamas. On 19 October 2023 the Court of Appeal allowed the appeal concerning the 1994 leak, upheld liability for the 2012/13 leak and substituted an award of $159,450. On 27 February 2024 it dismissed Rubis’s application for permission to appeal.
3. Supreme Court. On 14 April 2022 Thompson J found Rubis liable for damage caused by both leaks and awarded Ms Russell $692,825.14.