No longer the final Court of Appeal for many commonwealth countries, The Privy Council appears to be living on borrowed time. Yet it still has vital functions, reports Lucy Trevelyan

To many people, the Judicial Committee of the Privy Council (PC) is there to deal with Caribbean death-row cases and little else. While death penalty cases are a key feature of its diminishing workload, a recent case won by London firm Glovers shows there is more to it than that.


The case – Marjorie Ilma Knox v John Vere Evelyn Deane and others [2005] UKPC 25 – centred around rights of pre-emption in a family-owned company, which operated a sugar plantation with significant development value. The claimant was seeking to prevent the sale of the company to a rival investment firm and had lost both her original case and an appeal to the Barbados Court of Appeal before being granted permission to appeal to the PC. However, the PC upheld the original rulings.


Established by the United Kingdom Judicial Committee Act in 1833, the PC is the highest court of appeal for several Commonwealth countries, and also has jurisdiction over a mish-mash of domestic matters.


These include appeals from vets’ disciplinary proceedings, appeals against schemes of the Church Commissioners and arguments under the House of Commons Disqualification Act. Disputes regarding the validity of Acts of the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly were also added to its remit in 1998, and the Queen can request a report on anything she likes.


Consisting of the Lord Chancellor, the Lords President of the Council, the Lords in Appeal Ordinary, and judges of the superior courts of the Commonwealth countries as appointed by the Crown, the PC’s workload has remained fairly consistent in the past few years with 80 appeals entered in 1996 compared to 71 last year.


However, its jurisdiction has dwindled and is imminently set to recede even more.


On the domestic front, the Constitutional Reform Bill will create a supreme court for the UK, which will take over the PC’s devolution jurisdiction, while over the last few decades, many Commonwealth members, such as Australia, New Zealand and Canada – seeing the PC as an obstacle to full judicial sovereignty – established supreme courts of their own.


The nations of the Caribbean Community similarly voted in 2001 to abolish the right of appeal to the PC in favour of a Caribbean Court of Justice (CCJ). Although so far only Barbados and Guyana have formally adopted it as their final appellate court, other Caribbean islands are expected to follow suit, thus effectively cutting ties with the PC altogether.


Indeed, Jamaica tried to do so earlier this year, but the PC itself scuppered that plan by ruling that the three Acts designed to make the switch, which were passed by a majority in the Jamaican parliament, were procedurally flawed according to the Jamaican constitution and therefore void.


Paula Hodges, a partner at City law firm Herbert Smith and the former co-ordinator of the London Panel of Death Row Solicitors, has brought various death-row and public-law cases from Jamaica, and Trinidad and Tobago before the PC. She says she is worried the CCJ has been established for the wrong reasons.


‘I am slightly equivocal about it. I can see the sense of individual countries having their own supreme court but I am concerned that it is being done as a political decision to oust UK interference. But there is great benefit of having the PC involved in cases where there have been miscarriages of justice in the lower courts. The PC gives high-quality independent legal opinion on cases – and I am sceptical that you will get the same high standards from a Caribbean court of appeal,’ she says.



However, Anthony Maton, a litigation partner at McGrigors and secretary of the London Solicitors Litigation Association, sees no reason why Caribbean defendants should not get as fair a hearing before the CCJ as they would before the PC.


‘The judges are appointed by an independent commission, the members of which are not politicians or chosen by politicians, and the president is not chosen by the governments, although they can reject his appointment. Provided that there is genuine independence and quality, then defendants will get a fair deal.’


He agrees the move away from the PC has become a political issue but predicts the CCJ will make it increasingly redundant over the next five or six years.


Mr Maton says: ‘The major influence of the PC in the Caribbean has been in criminal not commercial cases, principally in death-row cases. The political mood in the Caribbean, against a backdrop of high crime rates and violent crime, is to support the death penalty; the broad effect of the PC, combined with the Inter-American Court of Human Rights, has been to stop these countries executing people.


‘This is politically unpopular and has led to a move to back away from the jurisdiction of the Inter-American court and the PC. I believe they will move away for these reasons. Ultimately, the PC is a historical anachronism, and historical anachronisms don’t survive.’


However, there appear to be some Caribbean countries, such as Grenada, that are not so keen to lose the PC, seeing it as a safety valve against political pressures in the region.


Ms Hodges notes that it is not even known yet whether English lawyers will have any rights of audience before the CCJ. She predicts though, that if widely embraced, it will curb the work done by UK lawyers – predominantly though the London Panel of Death Row Solicitors on a pro bono basis – on behalf of Caribbean death-row prisoners.


‘I think it will stop people doing this sort of pro bono work. We would struggle to bring the evidence together. We would have to rely on local lawyers getting the cases up and running, but a lot of local lawyers won’t touch these sort of cases with a barge-pole because of the political implications.’


Herbert Smith associate Anita Johns, who has worked with Ms Hodges on Caribbean death row cases, says the only potential benefit of the CCJ is that the appeal process may be speedier.


She says: ‘There are often delays waiting for domestic courts to provide documents. The Privy Council plays no role in putting pressure on lower courts to get the paperwork in order, which is a pity.’


Glovers partner David Miles, whose firm has been involved in several PC cases including disputes over inheritance, land ownership, company, banking, breach of contract, trusts and construction, says that although the PC is one of the most ‘efficient and effective courts in the country’ and ‘by far the most user-friendly’, it is not without its downside.


He says: ‘Among the drawbacks is a danger that the court and the judges do not fully understand the local circumstances in which a particular dispute arises. Also, the judges have to be educated in the local law. In the early days, the local law closely followed English law but some Caribbean countries are now departing from the model.’


As an example, he explains that Barbados’s company law – central to Knox – is now based on Canadian, rather than English, law. ‘Sometimes it is necessary to have quick access to local company law books, which is not always possible if the local lawyers have not brought the appropriate books with them. Also, added to the significant expense of conducting a case in the Privy Council is the expense of accommodation and travel, neither of which are recoverable in taxation,’ he says.


Ms Johns says: ‘The opinions of the Privy Council are excellent but it is archaic in terms of its requirements as to form. E-mail is out; you have to have 30 copies of everything and there is a complicated reference system required in the margin of each page, making it a costly and time-consuming procedure. It is in stark contrast to every other UK court, which is becoming increasingly modernised.’


Mr Maton says that although the quality of the PC’s judiciary is high and it gives ‘careful and sensible consideration to difficult cases’, it falls down in its procedure and cost regime.


He says: ‘Much of its procedure is antiquated and involves unnecessary work, particularly paper, and therefore costs. Its costs regime often makes it difficult for the local lawyers to recover their costs – making it seem like something of a closed shop in favour of the English bar.’


Mr Maton adds: ‘It is a little other-worldly because of its location in Downing Street and its actual appearance. It looks like a Victorian colonial hangover – you expect someone with mutton whiskers to appear any moment with a telegram from Khartoum – but, once you are past that, it operates like any other court and the quality of the judiciary is very good.’


As for actually appearing before the PC, Ms Hodges says it can be a daunting experience, with anything between three and seven judges sitting, depending on the importance of the case. ‘All the judges are very experienced and clever. Anyone who appears before them has to be ready to have some incisive questions thrown at them.’


Quite what will happen to the Privy Council over the next few years, as it is shorn of its jurisdiction, is unclear. But while it remains, solicitors themselves should be grateful for it.


Last year, in an appeal from a Jersey case, the PC handed down the most important recent decision on the scope of a solicitor’s duty. In Pickersgill v Riley [2004] UKPC 14, it confirmed that while a solicitor has a duty to advise on the hidden pitfalls and legal obscurities he finds in a transaction, in the absence of express instructions he is not required to advise on its commercial wisdom.


So, as a bulwark against over-enthusiastic use of the noose and negligence claims against lawyers, the PC looks likely to retain an important role for some time yet.


Lucy Trevelyan is a freelance journalist