2023 at the Judicial Committee of the Privy Council

2023 was as busy a year as ever for Chambers. In this article Robert Strang and Adam Riley take the opportunity to review and reflect upon some of the more significant decisions handed down by the Judicial Committee of the Privy Council last year. The cases include those brought from a wide variety of different countries, including Jamaica, Trinidad and Tobago, The Bahamas, St Lucia, Antigua and Barbuda, and Grenada, encompassing the full gamut of practice areas from high-profile criminal appeals to heavyweight commercial disputes, as well as landmark constitutional cases, and a host of others. As always Chambers is well represented, showcasing the breadth and depth of its members’ expertise across a wide range of areas of practice, and members’ specialisms in appellate advocacy.

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Attorney General of Trinidad and Tobago v Trinsalvage Enterprises Ltd (Trinidad & Tobago) [2023] UKPC 26, [2023] 1 W.L.R. 4045

This case in the law of unjust enrichment, which split the Judicial Committee 4-1, addressed the tension between the public interest in ensuring that government bodies follow proper procedures when entering into contracts and the private interest in the government not receiving an unjustified benefit at the expense of a contractor. An anticorruption statute provided that only a special independent body, the Central Tenders Board, had authority to bind the government to contracts for public works. A government department purported to contract directly with a harbour reclamation contractor. The contractor did millions of dollars of work, to a good standard and to the undoubted benefit of the public. The breach of the statute meant that there was no contract to sue on. Could the contractor use the law of unjust enrichment to recover the value of the work from the government, even though this meant in practice being paid as if the statute had never existed? Lord Burrows, for the majority, held that it could. Lord Briggs dissented powerfully, contending that this fundamentally undermined the statute.

Thomas Roe KC appeared for the government.

Lux Locations v Yida Zhang (Antigua and Barbuda) [2023] UKPC 3

In this appeal in a long-running commercial dispute from Antigua and Barbuda, the Board gave important guidance on the approach to requests for default judgment in instances where, because the remedy sought is not merely the payment of a sum of money, the matter goes before a judge, who “shall give such judgment as the claimant is entitled to on the statement of case” (CPR r. 12.12(1)). It had formerly been thought that a judge tasked with considering this question is not called upon to form any view about the merits of the case (see Football Dataco Ltd v Smoot Enterprises Ltd [2011] EWHC 973 (Ch), [2011] 1 W.L.R. 1978). The Privy Council has qualified this significantly, holding that, whether or not the defendant appears and opposes the application, the court should not give default judgment if it appears to the court that the claimant’s statement of case does not disclose any reasonable ground for bringing the claim or is an abuse of the court’s process. The principle established by the Board has been considered and applied several times already in the English courts (see, e.g., Edward v Okeke [2023] EWHC 1192 (KB)).    

Thomas Roe KC and Daniel Goldblatt (who appeared for the Appellant) and James Gale (who appeared for the Respondent) provide their analysis of the case here.

Morrison v R. (Jamaica) [2023] UKPC 14

In this significant constitutional and criminal appeal, the Privy Council confirmed that the appellant’s sentence for wounding with intent was not unlawful because it was determined in accordance with a statutory minimum, despite the appellant being a minor when he committed the offence. Further, it was not open to the appellant to rely on section 13(k)(i) of the Jamaican Charter of Fundamental Rights and Freedoms to invalidate the sentence because that section was concerned with general protection for children rather than sentencing policy. This section of the Charter did not operate to transpose the detailed rights of the United Nations Convention on the Rights of the Child (‘UNCRC’) into the Charter, especially but not only given the legislative history demonstrated that certain parts of the UNCRC were omitted from the Jamaican Child Care and Protection Act 2004, which had been passed to reflect Jamaica’s ratification of the UNCRC. The sentence was additionally not disproportionate and so not inconsistent with the prohibition guaranteed in the Charter against inhuman and degrading treatment, and there was no evidence to support a more general challenge to the constitutionality of the minimum sentencing regime.

Peter Knox KC and Adam Riley (who appeared for the Crown) provide their analysis of the judgment here.

Bertrand and ors v Elias (Trinidad and Tobago) [2023] UKPC 34

In Bertrand, the Board exercised its discretion to depart from the general rule that costs should be quantified in accordance with the prescribed costs scale, in circumstances where the proceedings had been discontinued by the claimants on the day of the trial, and where they had expressly acknowledged that those proceedings had been ill founded. The Board confirmed that there is a discretion to opt against prescribed costs even, in exceptional circumstances, at the end of proceedings; and it gave guidance of general application at all stages of proceedings. A court might decide against prescribed costs where the issues were relatively complex and the estimate of the actual costs was hugely disproportionate to the likely amount of prescribed costs;  or where the prescribed costs regime could result in an inequality of arms as between the well-resourced claimants and the defendant.

This is an important judgment for all those Caribbean jurisdictions whose civil procedure rules make provision for prescribed costs.

Robert Strang appeared for the Appellant, and his full analysis of the case is available here.

Responsible Development for Abaco (RDA) Ltd v Christie (The Bahamas) [2023] UKPC 2, [2023] 4 W.L.R. 47

This appeal concerned the proper approach to applications for security for costs by defendants in judicial review claims. The Board considered factors specific to public interest environmental claims, and also considered the circumstances in which security might be awarded to developers joined as additional defendants, applying the Bolton principles. The case itself was set in The Bahamas, and the claim for judicial review concerned the proposed development of marina facilities in Little Harbour on the island of Abaco. The claim challenged inter alia the alleged failure on the part of the Government to carry out a proper consultation before taking decisions relating to the grant of permissions and approvals required to proceed with the development.

Rowan Pennington-Benton appeared for the Appellant, Peter Knox KC and Robert Strang appeared for the Respondent (Abaco Club Investments & Ors), and Daniel Feetham KC appeared for the Interveners.

McPhee v Colina Insurance Ltd (The Bahamas) [2023] UKPC 8

In a split 3:2 decision, the Privy Council held that an insurance company had been entitled to cancel an individual’s universal life insurance policy on the basis that it had not received the increased payments required to ensure that the policy remained in force. The case raised questions of general importance relating to universal life insurance, as well as issues of construction relating to the policy wording. It was held that the terms of the policy permitted the insurance company to apply an annual uplift, and noted that the individual had been sent annual statements and a notice of pending cancellation, but had not acted to prevent cancellation in time. Lord Leggatt gave a powerful dissenting judgment which examined, in the context of an insurance policy, where the burden of proof lies regarding the proof of facts necessary to entitle an insurer to increase charges or make other changes under the policy terms.

Daniel Feetham KC and Rowan Pennington-Benton appeared for the Appellant.

Porter v Stokes (Trinidad and Tobago) [2023] UKPC 11

The Court of Appeal of the Republic of Trinidad and Tobago had been entitled to find that a deed had, by mistake, omitted to include a strip of land conveyed by the appellant to the respondents, and to order rectification of the deed. The trial judge had erred in emphasising the respondents’ credibility when the claim for rectification depended only on the interpretation of the contract itself. She had also not engaged with a detailed review of the deed, and had erred in making a finding of dishonest deception against the respondents. The evidence clearly pointed to an intention that the strip should have been included in the conveyance.

In coming to its decision, the Board endorsed the leading decision on rectification for common mistake, FSHC Group Holdings v GLAS Trust Corp [2019] EWCA Civ 1361, confirming that there are two distinct bases for a claim for rectification: first, to accord with a prior binding contract, whose meaning is to be construed objectively; second, to accord with the parties’ common intention where it did not amount to a prior contract, which entails determining as a matter of fact their actual, subjective intention. The judgment of the Board confirmed the first of these bases (which had been stated obiter in GLAS), considered defences which may arise and endorsed with one qualification the reasoning of the Court of Appeal in Britoil plc Hunt Petroleum [1994] CLC  561.

Robert Strang and Katharine Bailey (who appeared for the Appellant) provide their full analysis of the judgment here.

Maharaj v The Cabinet of the Republic of Trinidad and Tobago & Anor (Trinidad and Tobago) [2023] UKPC 17, [2023] 1 W.L.R. 2870

The question in this appeal, which was brought before the Judicial Committee as a matter of urgency, was whether an Act substituting a longer term of office for local councillors applied prospectively only, or also applied to people who were already councillors when it came into force, thereby postponing the need for elections by a year. By a bare majority, Lords Reed, Hodge and Richards, applying the principle of legality, held that the amendment only applied to prospective office-holders. It did not therefore give incumbent councillors any longer in office than the period for which they had originally been elected. In their dissenting judgment, Lords Briggs and Kitchin saw no reason for the Act not to apply to extend the term of incumbent councillors, and therefore no need for an election until the end of the extended term.

Thomas Roe KC (who appeared for the Respondents) and Adam Riley (who appeared for the Appellant) provide their analysis of the case here.

Attorney General of Trinidad and Tobago v Vijay Maharaj (Trinidad and Tobago) [2023] UKPC 36

The Privy Council considered whether the Sedition Act 1920, which had originally been enacted in Trinidad and Tobago as an ordinance prior to its independence, was consistent with the Constitution of the Republic of Trinidad and Tobago Act 1976. The 1976 Constitution had an express provision in s.4 which protected the right to freedom of expression, but it had also insulated existing laws from being incompatible with that right by way of s.6. Reading the Constitution in the round, it would not be appropriate to give too expansive an interpretation to s.1, which stated that Trinidad and Tobago was a sovereign democratic State, as that would have the effect of undermining the Constitution as a whole. It was not inherent in the democratic nature of the state that there should be judicial review of saved law on the ground that it was incompatible with the right to freedom of expression.

Peter Knox KC and Robert Strang appeared for the First Appellant.

Carriacou Devcor Ltd v Margaret Corion and another (the Personal Representatives of the Estate of Samuel Corion, Deceased) (Grenada) [2023] UKPC 1

The Privy Council dismissed an appeal challenging a finding that a disputed parcel of land in Grenada belonged to a deceased’s estate rather than to a development company. There had been an abundance of evidence which supported the trial judge’s conclusion, upheld by the Court of Appeal. The case fell within the Council’s practice not to entertain appeals on questions of fact where there were concurrent findings of fact of two lower courts except in exceptional circumstances, of which there were none.

Robert Strang appeared for the Appellant, Rowan Pennington-Benton appeared for the Respondents.

Henry & Anor v Attorney General of St Lucia (Saint Lucia) [2023] UKPC 41

In this case the two appellants were arrested, charged, found unfit to plead and thereafter detained “until the Governor General’s pleasure be known”, for periods of 24 and 32 years. The appellants complained that instead of being placed in a mental hospital, they were detained in prison. The Board concluded that their case was not simply a matter of their being detained in the wrong physical location but that there was also, inter alia, a failure to ensure that a regime directed to providing for their care and treatment of their mental ill-health was put in place. In so doing, the Board commented and gave guidance on the principles of implied repeal, the law appertaining to inhuman and degrading treatment, and calculating the quantum of constitutional damages.

Robert Strang and Katharine Bailey appeared for the Appellants, and Katherine Deal KC appeared for the Respondent; their analysis of the case is available here.

The King v James Miller (The Bahamas) [2023] UKPC 10

This appeal raised the question of how a jury should be directed to assess the intention of a person charged with attempted murder and brought into focus the application of the provisions to be found in section 12 of the Penal Code of The Bahamas. The appeal provided the Privy Council with an opportunity to assess the extent to which these provisions are of value in assisting a jury to understand how to determine the question of a person’s intention. In dismissing the appeal, the Privy Council held that the Judge should have given a simple direction that the jury could only convict of attempted murder if they were sure that the appellant had intended to kill the victim. No submissions had been advanced which called for a more complicated direction on the issue of foreseeability of consequence pursuant to the section 12(3) of the Bahamian Penal Code. Nevertheless, the evidence was overwhelming, and no reasonable jury properly directed could have failed to convict the appellant. 

Tom Poole KC appeared for the Respondent.