National Bank of Anguilla (Private Banking and Trust) Ltd (in Administration) and another v Chief Minister of Anguilla and 3 others (Anguilla)

The threshold for leave to apply for judicial review is low. The applicant must show an arguable ground with a realistic prospect of success, subject to any discretionary bar. Deciding arguability is not an exercise of discretion, so an appellate court must reconsider the issue if the first-instance court applied the wrong approach. A claim is not necessarily premature merely because the formal decision has not yet been made where the underlying policy or position is already clear. The duty of candour applies at the leave stage. Public authorities must provide sufficient information to explain the decision and identify the decision-makers. They cannot withhold crucial material and then argue that the claimant has failed to establish an arguable case.

Two Anguillian banks in administration claimed that their accounts with two parent banks had been excluded from a banking resolution plan. The plan transferred deposits up to a specified threshold to a new bank and protected larger deposits through depositor protection trusts.

The appellants sought leave to apply for judicial review against the Chief Minister, the Executive Council, the receiver and the Eastern Caribbean Central Bank. Innocent J refused leave and struck out the Chief Minister and Attorney General. The Court of Appeal dismissed the appeal, treating the first-instance decision as an exercise of discretion and holding that the exclusion arose by operation of law.

The central issues were the correct appellate approach, prematurity, the duty of candour, and whether the appellants had an arguable case that decisions or statutory misconstructions had caused their exclusion.

1. Appeal and orders. The Board allowed the appeal, permitted the Executive Council to be substituted for the Attorney General, and granted leave to apply for judicial review. All respondents were to remain parties while the decision-making process was clarified. A disclosure hearing was the appropriate next step if relevant information and documents were not provided.
2. Leave and appellate review. The governing threshold, explained in Sharma v Brown-Antoine [2006] UKPC 57 and Attorney General of Trinidad and Tobago v Ayers-Caesar [2019] UKPC 44, is whether there is an arguable ground with a realistic prospect of success and no discretionary bar. This is not a discretionary decision. The Court of Appeal therefore erred by applying the restricted principles applicable to appeals from discretionary decisions. It should have decided whether the first-instance judge had erred and, if so, reconsidered leave itself.
3. Prematurity. A court may refuse leave where no concluded view has been reached or the information is incomplete. However, review may proceed before a formal act where the process is clear and the challenged act will implement an already adopted position. The absence of Vesting Orders when proceedings began did not make the claim premature because the alleged exclusionary policy was already determined. This approach was consistent with R (Public Law Project) v Lord Chancellor [2016] UKSC 39 and R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
4. Duty of candour. The duty applies at the leave stage. Parties, especially public authorities, must provide sufficient information for the court to understand why the decision was made and who made it. The respondents’ failure to answer repeated requests and to provide key documents was a serious failure of candour. The court could take that failure into account and make disclosure orders. It could not allow public bodies to withhold crucial material and then rely on the resulting lack of evidence to defeat the application.
5. Arguable substantive case. If the legislation clearly mandated exclusion, the underlying legislative choices would not be amenable to judicial review. But the legislation did not clearly have that effect. The administration order, the appellants’ regulation under a different statutory regime, and the alleged distinction between deposits and placements each raised arguable issues. Evidence that the accounts had been treated as repayable-on-demand deposits supported an arguable statutory error. The initial allocation to the trusts was not conclusive because it could be reviewed and increased, and other funding sources existed.

1. Privy Council — [2025] UKPC 14: appeal allowed; Executive Council substituted for the Attorney General; leave to apply for judicial review granted.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Anguilla) — appeal dismissed on 30 July 2021.
3. First instance, Innocent J — leave refused on 3 February 2020; the Attorney General and Chief Minister were struck out, and the application against the receiver and ECCB was refused.