The latest news from the Judicial Committee of the Privy Council
18 January 2024
Introduction from Vicky Fox
Dear Friends
I am delighted to write to you again with our annual newsletter to update you on the work of the Judicial Committee of the Privy Council over the last year.
Firstly, let me wish you all a happy and healthy new year and send my very best wishes to all our JCPC colleagues.
2023 was another busy year at the JCPC, both in terms of cases as well as making real progress on our Change Programme, which I mentioned briefly in the last newsletter. Once complete, the Change Programme will bring real improvements to how people are able to interact with the Court. There is more on the Change Programme, the progress we have made, and next steps later in this update.
The JCPC heard some very interesting and important cases again this year. We have selected a few of them below and have highlighted the issues that were considered and the outcome. For more detail about the Court's work you can read our Annual Report and Accounts.
Last year, I updated you on our highly successful sitting in the Cayman Islands. In addition to hearing appeals, which were well attended by the public, we were able to provide enriching education programmes for students, a court user group meeting, and met with the local judiciary and elected representatives. It was a great honour to be invited to the islands and a wonderful opportunity to strengthen the ties between the Court and the people it serves.
During 2023 the Government of St Lucia notified us that they intended to leave the JCPC, which they did in July. It has been a great honour and privilege to serve the people of St Lucia as their final court of appeal. The decision on which court to have as the apex court is a decision for the government and people of each of the Privy Council's jurisdictions alone. We are honoured to serve as that court unless and until members decide otherwise and we wish St Lucia every continued success and prosperity.
We were delighted to welcome a new Justice – Lady Simler – to the bench this year, and you can read more about her and the retirement of Lord Kitchin further on. We have had some staffing changes in the Registry. Celia Cave joined us as the new joint Registrar to work alongside Laura Angus. Celia is now on maternity leave and her work is being covered by Emma Ainsley. Harriet Grant has joined the Registry as Operations Manager. You can learn more about Harriet later.
I hope you find this newsletter interesting, and I send you my warmest wishes.
Vicky Fox
Chief Executive of the JCPC and UKSC
A message from Lord Briggs - lead Justice for the JCPC
"This year I was given the honour of being asked to be the lead Justice on matters concerning the JCPC. I have always enjoyed my work on the JCPC and am looking forward to playing my part in improving our ways of working with you all.
"We are proud to be the final court of appeal for 29 jurisdictions, around the world. In 2024 we will continue to support the rule of law in all the jurisdictions we serve.
"As part of my role I will be attending JCPC User Group meetings with Lord Hodge. These meetings are hybrid, held both in-person and online, and I encourage you to attend.
"But outside of these meetings I am always keen to hear feedback and views from users of the JCPC and I invite you to send any thoughts to us at registry@jcpc.uk, marked for my attention"
Lord Briggs
Caseload of the JCPC
Throughout 2023, The JCPC heard 41 appeals. It also handed down 44 judgments during this time.
Key Judgments
The JCPC has heard many cases over the last year, below is a small selection of the interesting cases from the last 12 months.
The General Legal Council and another (Appellants) v The Jamaican Bar Association (Respondent) (Jamaica), 9 February 2023
This appeal was concerned with the compatibility of Jamaica's anti-money laundering legislation, as it applies to lawyers (also known as attorneys), with the Constitution of Jamaica. In 2013, to address national security concerns and comply with international standards, Jamaica extended its anti-money laundering regime to include attorneys carrying out certain activities, such as purchasing and selling businesses or real estate or creating companies or trusts. The extended regime gave the General Legal Council, as the regulator of the legal profession in Jamaica, certain powers to monitor attorneys' compliance with the regime through, amongst other things, site inspections, examining and copying documents, and potentially sharing information with the other authorities. Attorneys were also required to disclose suspicious transactions to the Financial Investigations Division of the Ministry of Finance and Planning.
The Jamaican Bar Association, which represents attorneys, brought a legal challenge arguing that the regime was unconstitutional. At first instance, the Supreme Court of Judicature of Jamaica held that the regime was lawful. However, the Court of Appeal of Jamaica declared certain aspects of the regime invalid on the basis that they contravened the constitutional rights to privacy, liberty and freedom from search of property without demonstrable justification. The Attorney General and the General Legal Council appealed to the Judicial Committee of the Privy Council.
The Board unanimously allowed the appeal. Read the full judgment on our website.
Caryn Moss (Appellant) v The King (Respondent) (Bahamas), 25 July 2023
The appellant, Caryn Moss, was tried and convicted on a charge of conspiracy to murder and was sentenced to 20 years' imprisonment. This was for her role in a successful plot to murder a man who was due to give evidence for the prosecution in a forthcoming trial in which "a notorious leader of a gang" was charged with murder.
The appellant appealed against her conviction and sentence to the Court of Appeal of the Commonwealth of The Bahamas, primarily on the basis that the defence of duress ought to have been, but was not, left by the trial judge to the jury. That defence, if evidenced, would provide a complete defence to the charges. The Director of Public Prosecutions cross-appealed against the sentence. The Court of Appeal dismissed the appellant's appeal but allowed the cross-appeal, increasing the sentence to 35 years' imprisonment. The appellant appealed against both the conviction and the sentence to the Judicial Committee of the Privy Council.
The Board unanimously dismissed the appeal against conviction and allowed the appeal against sentence. Read the full judgment on our website.
FamilyMart China Holding Co Ltd (Respondent) v Ting Chuan (Cayman Islands) Holding Corporation (Appellant) (Cayman Islands), 20 September 2023
This appeal was concerned with whether an agreement to settle disputes arising out of a shareholders' agreement by arbitration may prevent a party to that agreement from pursuing a petition to wind up the company whose management is the focus of those disputes.
The appellant ("Ting Chuang") and respondent ("FMHC") together own China CVS (Cayman Islands) Holding Corp (the "Company"), which operates a convenience store business in the People's Republic of China. Pursuant to a shareholders' agreement which is governed by the laws of the Cayman Islands, Ting Chuang and FMHC agreed to resolve any disputes arising out of the shareholders' agreement by arbitration.
On 12 October 2018 FMCH petitioned the Grand Court of the Cayman Islands to wind up the Company on the ground that it was just and equitable to do so. FMCH brought the petition to secure a court order enabling it to buy-out Ting Chuan's shareholding. The petition was based on Ting Chuan's alleged mismanagement of the company. Ting Chuan applied to strike out or stay the petition on the basis that the mismanagement disputes should be resolved by arbitration. The Grand Court of the Cayman Islands struck out certain elements of FMCH's petition and stayed other parts of the petition until the underlying matters had been arbitrated. The Court of Appeal overturned that decision, and Ting Chuan appealed to the Judicial Committee of the Privy Council.
The Board unanimously allowed the appeal. Read the full judgment on our website.
Surendra Dayal (Appellant) v Pravind Kumar Jugnauth and 7 others (Respondents) (Mauritius), 16 October 2023
This appeal arose out of the general election to the Mauritius National Assembly held on 7 November 2019. The appellant, Mr Dayal, unsuccessfully sought election to the National Assembly. He issued an election petition under section 45 of the Representation of the People Act 1958 (Mauritius) ("the Act") challenging the election of the first three respondents alleging, among other things, that their election was obtained by bribery and 'treating' in breach of section 64 of the Act and should be declared invalid and void. Specifically, Mr Dayal alleged that promises made by the first respondent, Mr Jugnauth, during the election campaign to (i) to increase the basic retirement pension; (ii) accelerate forms of public sector pay and terms; and (iii) pay one-off performance bonuses to police and prison officers and firemen constituted bribery. Mr Dayal also alleged that food, drink and entertainment provided at an event organised by the Ministry of Social Security, at which Mr Jugnauth spoke, constituted treating. At first instance, the Supreme Court of Mauritius dismissed Mr Dayal's challenge. He appealed to the Judicial Committee of the Privy Council.
The Board unanimously dismissed Mr Dayal's appeal. Read the full judgment on our website.
Primeo Fund (in Official Liquidation) (Appellant) v Bank of Bermuda (Cayman) Ltd and another (Respondents), 15 November 2023
This appeal concerned litigation arising from the multi-billion-dollar Ponzi scheme operated by Bernard Madoff. The appellant ("Primeo") operated as an investment fund which had invested client funds with Bernard L Madoff Investment Securities LLC ("BLMIS"). In addition to its direct investments, Primeo began investing indirectly with BLMIS by purchasing shares in two feeder funds associated with Bernard Madoff, Alpha Prime Fund Limited and Herald Fund SPC ("Herald"). On 1 May 2007, Primeo converted its remaining direct investments in BLMIS into indirect investments by transferring its rights in respect of those investments to Herald in return for shares in Herald.
It eventually emerged that BLMIS was diverting all of the funds invested in it to make payments to other clients to give the illusion that client funds had been properly invested when in reality it was insolvent. This meant that Primeo could not recover the funds it had invested in BLMIS. Primeo brought claims against the respondents, Bank of Bermuda (Cayman) Ltd and HSBC Securities Services (Luxembourg) SA, for breach of their duties in connection with Bernard Madoff's fraud. The respondents were at all relevant times the administrator and custodian of Primeo.
In 2021, the Judicial Committee of the Privy Council allowed Primeo's appeal on a preliminary issue about whether the principle of preventive loss precluded it from pursuing claims for losses sustained by the feeder funds in which it held shares (see the judgment: [2021] UKPC 22). In this subsequent appeal, the Judicial Committee of the Privy Council determined three consequential matters: (1) the extent of liability and damages; (2) statutory limitation of claims; and (3) contributory negligence.
The Board allowed Primeo's appeal in part and also allowed the respondents' cross-appeal in part. Read the full judgment on our website.
Visits to and from JCPC Jurisdictions
We were delighted to welcome a number of colleagues from across the JCPC to the Court this year.
The Chief Justice of the Supreme Court of Brunei Darussalam, Dato Seri Paduka Steven Chong Wan Oon, visited JCPC in February to meet with Lord Reed and Lord Hodge.
In March, Jane Owen visited the JCPC in advance of her beginning her role as Governor of the Cayman Islands. Governor Owen met with Chief Executive Vicky Fox, Registrar Laura Angus, and some of the Judicial Assistants.
In July, Girish Nunkoo, High Commissioner of Mauritius to the UK, visited JCPC. He met with Lord Hodge and attended the hearing Surendra Dayal (Appellant) v Pravind Kumar Jugnauth and 7 others (Respondents) (Mauritius).
In August, Julia Crouch visited the JCPC in advance of her taking up her role as Governor of Anguilla. Governor Crouch met with Chief Executive Vicky Fox and Registrar Laura Angus.
We welcomed Sir Michael Barnett, President of the Court of Appeal of the Bahamas, to JCPC in September. Sir Michael met Lord Sales and Chief Executive Vicky Fox.
Hybrid Hearings
We offer online hearings to Counsel and parties who are not based in the UK and who would find it preferable to appear before the Court virtually. The technology allows a full hearing to take place and we are able to televise the proceedings in the same way we do when the hearings are held in person.
On 18 July 2023 there was a hybrid hearing in the case: JCPC 2021/0085 - Rollin Clifton Bertrand and 2 others (Respondents) v Anthony Elias (Appellant) (Trinidad and Tobago).
During the hearing counsel representing the appellant were present in the Court in Westminster, London whilst the counsel representing the respondent took part via video link from Trinidad and Tobago.
Nalini Jagnarine from Athena Chambers, who presented at the hearing online from Trinidad and Tobago, said:
"I would recommend a hybrid hearing. We chose to have a hybrid hearing as it was cost effective for the Respondent and allowed all team members to be present.
"Hybrid hearings are a positive step forward, allowing litigants better and more affordable access to the Courts."
Change Programme update
In the last year on the Change Programme we have completed the 'Discovery Phase' which included extensive research with over 200 of our users to better understand their needs.
We have since applied findings from this research to the ongoing design, build and testing of a new case management system, and to two new websites: one for JCPC and one for UKSC. The case management system and the websites will enable seamless and modern interaction with JCPC and UKSC and will support us in delivering a world-leading service to all our users.
Our priority with this new system is that users will be able to manage and track their cases in a more efficient, digital way. The system will enable two-way interaction between the Court and users, along with a variety of different services including digital tracking of cases, electronic service of documents, electronic payments, and digital storage.
We will be holding user testing sessions of the new case management system and websites and we would be delighted if you wanted to volunteer to help us test, shape and improve the new services. If you are interested, please contact: ellie.buckley@supremecourt.uk
Meet Harriet
We are very pleased to be joined by Harriet, who is our new Operations Manager in the Registry team, and will be overseeing the smooth operations of the Registry and ensuring that hearings are scheduled and arranged efficiently to meet your, and the Court's, needs.
Prior to joining us at the Court, Harriet worked as Head of Operations for the Royal Academy of Dance, overseeing regulated ballet exams across 85 countries worldwide.
Appointments and Retirements
Alongside several new staff joining us at the Court, there has also been changes to our Justices.
This year we said goodbye to Lord Kitchin. Lord Kitchin retired from the Court on 29th September 2023 after 5 years as a JCPC and Supreme Court Justice.
During his time with us, Lord Kitchin sat on 82 JCPC cases.
Lord Kitchin remembered his career at the Court fondly, saying: "It has been an enormous privilege and pleasure to serve as a full time Justice of the Court. This is the right time for me to step down and it will give me an opportunity to spend more time with my family and to pursue other interests."
You can watch Lord Kitchin's valedictory ceremony on our YouTube page.
Lord Kitchin's retirement meant that this year we welcomed a new Justice to the Court. We are delighted to welcome Lady Simler, who was sworn in on the 14th November 2023.
Lady Simler was called to the Bar by Inner Temple in 1987, she was appointed to the Attorney General's Civil Panel A in 2001 and as Junior Counsel to the Inland Revenue (Common Law) in 2002. She took silk in 2006.
During her career she was been Recorder on the UK's South East circuit, Deputy High Court Judge, a Judge of the High Court, President of the Employment Appeal Tribunal, served as High Court Liaison Judge for Diversity, chaired the Diversity Committee of the Judges' Council, and was sworn in as a Lady Justice of the Court of Appeal in 2019.
On her appointment, Lord Reed said: "Lady Simler will bring exceptional experience and ability to the Court following a distinguished career as a barrister and Judge. Her experience in employment law, tax, public law and criminal law will be highly valuable to the Court and will further strengthen us as a world-leading Court."
Lady Simler will hear her first JCPC case as a Justice on 16th January, however she has already sat as a visiting Judge with us last year on Douglas Ngumi (Appellant) v The Attorney General of The Bahamas and 3 others (Respondents) (Bahamas).
If you missed the ceremony watch Lady Simler's swearing in online.
Contact Information
India Cocking