National Bank of Anguilla (Private Banking and Trust) Ltd (in Administration) and another (Appellants) v Chief Minister of Anguilla and 3 others (Respondents) (Anguilla)
Case ID: JCPC 2022/0079
Jurisdiction: Court of Appeal of the Eastern Caribbean Supreme Court (Anguilla)
Case summary
Issue
Should leave to apply for judicial review have been (and should now be) granted? The issues on appeal include:
- The correct approach to be applied on an appeal from a judge's refusal to grant leave to apply for judicial review.
- Whether the Appellants have a sufficiently arguable case for leave to apply for judicial review to be granted.
- Whether the judge's refusal to grant leave exceeded the ambit within which reasonable disagreement is possible.
- Whether there is a relevant decision that the Chief Minister of Anguilla (the First Respondent) or the Executive Council of Anguilla could properly have made which would be the subject of the judicial review.
Facts
This case concerns an application for judicial review of the Anguillan government's response to the financial crisis. The issue on appeal is whether leave to apply for judicial review should be granted.
The Appellants are two Anguillan incorporated banks which were licensed to carry out offshore banking business. The First Appellant was a subsidiary of the National Bank of Anguilla Limited ("National Bank") and the Second Appellant was a subsidiary of the Caribbean Commercial Bank (Anguilla) Limited ("Caribbean Bank").
Following a financial crisis in the indigenous banking sector in Anguilla, on 12 August 2013 the Fourth Respondent (the Eastern Caribbean Central bank ("ECCB")), exercising statutory powers under the Eastern Caribbean Central Bank Agreement Act 1983, issued notices of intervention and took control of National Bank and Caribbean Bank. On 22 February 2016, the Appellants (but not National Bank or Caribbean Bank) were placed into administration under the Financial Services Commission Act.
Before 22 April 2016, the ECCB and the Government of Anguilla finalised a "Resolution Plan" in response to the financial crisis. The Resolution Plan involved the establishment of a new domestic bank (the National Commercial Bank of Anguilla ("New Bank")), which was wholly owned by the Government of Anguilla, and the creation of two depositor protection trusts (the "depositor trusts") to be funded by the Government of Anguilla. The deposit liabilities of the National Bank and Caribbean Bank (together the "parent banks") below the stipulated threshold of EC$2.8million were to be transferred to the New Bank, along with assets of the same amount. The remaining balances in excess of EC$2.8million were to be entitled to protection under the depositor trusts.
The Appellants applied for leave from the High Court to bring judicial review proceedings on the basis that the Respondents took decisions, the cumulative effect of which was to exclude the Appellants' deposits in the parent banks from protection under the Resolution Plan.
The High Court refused the Appellants leave to bring judicial review proceedings. The Court of Appeal upheld that decision. The Appellants now appeal to the Judicial Committee of the Privy Council.
Parties
Appellant
(1) National Bank of Anguilla (Private Banking and Trust) Ltd (in Administration), (2) Caribbean Commercial Investment Bank Ltd (in Administration)
Respondent
(1) Chief Minister of Anguilla, (2) Attorney General of Anguilla
Gary Moving
Eastern Caribbean Central Bank
Appeal
Justices
Lord Reed, Lord Lloyd Jones, Lord Hamblen, Lord Stephens, Lady Rose
Hearing start date
26 June 2024
Hearing finish date
26 June 2024
| Watch hearing | ||
|---|---|---|
| 26 June 2024 | Morning session | Afternoon session |