The Judicial Committee of the Privy Council is the highest court of appeal for several Commonwealth jurisdictions and it will be sitting, physically, in the Cayman Islands in November 2022. This provides a timely reason to take a fresh look at the role of the Privy Council and the benefits that it offers as a final appellate court to the British Overseas Territories.

An introduction to the Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council (‘the JCPC’) was first established in 1833 and still serves as the highest court of appeal for several Commonwealth countries (including Jamaica, Grenada, the Bahamas and Trinidad & Tobago), three Crown Dependencies (Jersey, Guernsey and the Isle of Man), and fourteen British Overseas Territories (including Bermuda, the British Virgin Islands and the Cayman Islands).

The judges that make up the judicial panels of the JCPC for individual appeals (which vary in size depending on the nature of the application or appeal) are largely drawn from the pool of judges appointed to the United Kingdom Supreme Court. There have been occasions, however, when appellate judges from other jurisdictions have also been invited to sit on JCPC appellate panels as well.

The JCPC normally conducts its hearings in person in London. There have also been special sittings in overseas jurisdictions over the years, and the JCPC is scheduled to hold a special sitting in person in the Cayman Islands in November 2022.

Due to COVID-19 and other technical advancements, more appellate hearings are now being conducted by the JCPC on a remote or hybrid basis, making use of video-link facilities. The video-recordings of all JCPC hearings are available for the parties and the general public to watch online at https://www.jcpc.uk/.

The JCPC as the final appellate court for Bermuda, the British Virgin Islands and the Cayman Islands

International financial centres such as Bermuda, the British Virgin Islands and the Cayman Islands have benefitted enormously over the years from the JCPC acting as their final court of appeal.

The jurisprudence and legal systems of each of these three jurisdictions are modelled on, and enhanced by, principles of English common law and equity (with its legal certainty and commercial flexibility).

There are many judgments of the JCPC (as well as judgments of the United Kingdom Supreme Court) that provide a stable guide to the resolution of many important issues of commercial, corporate, trusts, funds, insurance, insolvency and public law, whether for the purposes of negotiation and settlement, adjudication by a lower court or in an arbitration.

International investors and financial institutions engaged in corporate and commercial activities involving Bermuda, the British Virgin Islands and the Cayman Islands can also take a high degree of comfort from the independence and quality of the judiciary; not only the judiciary locally (which is of great importance, hence the high quality of the judges of the local Commercial Courts and intermediate appellate courts), but also the availability of final rights of appeal to an experienced and independent appellate court, made up of judges of the highest international standards and reputations.

Many individual residents and visitors to Bermuda, the British Virgin Islands and the Cayman Islands benefit immeasurably from the fact that (whether they know it or not) their human rights, and their Constitutional rights, are capable of being enforced and protected against local Governments and Government agencies through independent courts, locallyand  by way of final appeal to the JCPC, and, in appropriate circumstances, to the European Court of Human Rights.

Time for a re-appraisal?

The fact that the JCPC will be sitting, physically, in the Cayman Islands in November 2022 offers a timely reason for taking a fresh look at the role of the JCPC, and the benefits that it brings as a final appellate court to British Overseas Territories such as Bermuda, the British Virgin Islands and the Cayman Islands.

The topic is timely for other reasons as well:

  • Firstly, in 2022,the Government of Lucia (an independent country in the Caribbean) became the fifth CARICOM nation to move its final right of appeal away from the JCPC to the Caribbean Court of Justice (‘the CCJ’). The President of the CCJ recently questioned Jamaica’s delay in joining the CCJ after spending US$27 million to establish a Trust Fund for the judicial independence of the CCJ judges.
  • Secondly, 2022 has seen the JCPC decide a number of controversial, and emotive, human rights and Constitutional cases, which have generated extensive academic and political debates as to the role of the JCPC as an apex constitutional court for many different jurisdictions (taking into account similar issues affecting other constitutional courts globally, including the United States Supreme Court).
  • Thirdly, 2022 has also seen judges of the United Kingdom Supreme Court and the JCPC revisit the wisdom of sitting as non-permanent judges of the Hong Kong Court of Final Appeal, in light of certain developments under Chinese law.

The criticisms of the JCPC

For decades, legal scholars have debated the advantages and disadvantages of independent Commonwealth countries (including countries in the Caribbean region) retaining the JCPC as their final appellate court.

Many have argued for the abolition of the JCPC as an appellate court in favour of a local or regional appellate court, such as the CCJ based in the Republic of Trinidad & Tobago.

The arguments in favour of replacing the JCPC have largely been influenced by the fact of independence and de-colonisation, and the need (and desire) for independent jurisdictions to move towards full self-determination and self-actualization.

Additional arguments focus on the following three areas:

  • Access to justice locally. It has been argued that a local or regional appellate court will provide litigants with greater access to justice locally than the JCPC sitting in London, which is physically further awaywith more costly travel and necessitates (for many Caribbean nationals) a visa for entry.
  • The JCPC’s workload. It has been argued, both by members of the JCPC and by others, that members of the JCPC and the United Kingdom Supreme Court spend a disproportionate amount of time on JCPC appeals relative to Supreme Court business, and that some appeals pending before the JCPC take too long to be resolved as a result.
  • Improved and different local standards. It has been argued that local or regional appellate judges in many jurisdictions (including the CCJ) are of the same professional standard as appellate judges in the United Kingdom. It has also been argued that local or regional judges are better placed to understand the social, economic, and political realities of an appeal, and the parties’ circumstances, than a judge sitting in London. Additionally, with the explosive growth of local legislation and local jurisprudence, many appeals involve issues of local substantive or procedural law that have diverged significantly from current English law.

Although the British Overseas Territories are not fully independent nations, the debate is still relevant to British Overseas Territories, given increasing levels of self-governance conferred on each of these jurisdictions by the United Kingdom under their respective Constitutions (as amended over time).

In this context, although Bermuda and the Cayman Islands both maintain separate, self-standing legal systems, it is also relevant to note that the British Virgin Islands’ legal system, and the legal systems of two other British Overseas Territories (Anguilla and Montserrat), are part of the Eastern Caribbean Supreme Court, given Montserrat’s full membership of the Organisation of Eastern Caribbean States (‘the OECS’) and Anguilla’s and the British Virgin Islands’ associate membership of the OECS.

This suggests that, despite certain practical complications, it would not be legally impossible for a British Overseas Territory government to decide (subject to the agreement of the United Kingdom government) to provide local litigants with final rights of appeal to a regional appellate court, such as the CCJ, rather than an appellate court sitting in London.

The benefits of the JCPC to Bermuda, the British Virgin Islands and the Cayman Islands

It is now worth highlighting the main benefits to Bermuda, the British Virgin Islands and the Cayman Islands associated with maintaining a right of final appeal to the JCPC, given the status of each of these jurisdictions as international financial centres.

Firstly, the JCPC is a well-established, respected and trusted appellate court with a proven track record for delivering sound, independent and publicly available judgments over a sustained period of time, across a wide range of subject matter, upholding the rule of law, and administering justice fairly and equitably.

Secondly, the JCPC promotes uniformity and certainty in the common law across the jurisdictions from which it hears appeals. Although the JCPC applies the laws of the relevant country when considering the appeal before it, it applies the principle of precedent (‘stare decisis’) on a cross-jurisdictional basis. The JCPC also treats the decisions of the United Kingdom Supreme Court as highly persuasive, or practically binding in most cases. The JCPC’s jurisprudence is therefore very substantial and wide-ranging, and it provides a high level of certainty in all of its jurisdictions simultaneously, which, in turn, assists all litigants and legal advisors to predict how their own cases are likely to be decided.

Thirdly, the JCPC judges are unequivocally independent and impartial, and can be seen to be. An advantage to the JCPC being in London is that the JCPC judges are far removed from the parties (and from local or foreign Governments), and they are most unlikely to have any conflicts of interest in adjudicating the matter before them. JCPC judges are rightly perceived as impartial and independent of the territories from which they hear appeals. Given that many international businesses in Bermuda, the British Virgin Islands and the Cayman Islands do business in, or with counterparts in, jurisdictions such as Hong Kong, the PRC and many South American countries, this remains a very important commercial benefit associated with the JCPC.

Fourthly, most of the practical criticisms levelled against the JCPC can be, and have been, readily addressed and resolved. The JCPC can sit in the individual state or country from which the appeal emanates, thereby making it no different from a local appellate court. Alternatively, the JCPC can use video-link technology to facilitate remote or hybrid hearings, promoting significant costs savings where it is appropriate to do so. It is also possible for the parties to make use of alternative fee arrangements, or to secure pro bono legal assistance and filing fee discounts, in appropriate cases pending before the JCPC. In all but the most complex of cases, judgments of the JCPC are delivered within a few months of the final hearing.

One of the most interesting criticisms of the current composition of the JCPC has related to the JCPC’s determination of recent controversial appeals raising Constitutional and human rights issues, including on issues relating to same-sex marriage equality in Bermuda and the Cayman Islands, and Caribbean death penalty cases involving Constitutional ‘savings law clauses’. These are inevitably the sorts of human rights cases that provoke profound disagreement and debate at an individual, societal, and academic level (but that is a debate which is beyond the scope of this article).

Overall, the JCPC has continued to provide an excellent quality of appellate judgment in the British Overseas Territories on a consistent and sustained basis over time.

Conclusion

In conclusion, the JCPC remains an important and valuable selling point for jurisdictions such as Bermuda, the British Virgin Islands and the Cayman Islands.

Indeed, it is a testament to the nature of the appeals emanating from these three jurisdictions, and their respective importance as international financial centres and British Overseas Territories, that the JCPC has arranged to hold a special sitting in person in the Cayman Islands, in November 2022.

Alex Potts KC

Partner, Head of Cayman Islands Litigation & Restructuring

Cayman Islands

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