Appellate Procedure
The Judicial Committee of the Privy Council (“Privy Council”), sitting in a panel of seven (7) recently delivered their decision on 18 March 2025 upon a preliminary point arising in Rubis Bahamas Ltd. v Lillian Antionette Russell – [2025] UKPC 13, an appeal emanating from the Court of Appeal of the Commonwealth of The Bahamas. The preliminary point in that case was whether the intended appeal raised by the Appellant Rubis Bahamas Ltd (“Rubis”) was one which was ‘as of right’ or rather one which depended upon the exercise of the Court of Appeal’s discretion in granting Rubis leave to appeal.
At first instance, Keith Thompson, J. (Ret.) found in favour of the Plaintiff, Lillian Russell (“Ms. Russell”) ordering an award in the sum of $692,825.14. Contending on various bases that the first instance decision was wrong in law, Rubis appealed to the Court of Appeal. The Court of Appeal embraced some of Rubis’ arguments and substituted the initial award of $692,825.14 for a reduced sum of $159,450.00. Notwithstanding the significant reduction, unsurprisingly, Rubis, however, remained dissatisfied because of its central view at first instance and also on its first appeal that there was no evidentiary basis upon which to support Ms. Russell’s claim for any damages as her property was shown on the facts to be outside of the affected zone.
Accordingly, Rubis then sought conditional leave from the Court of Appeal to advance its second appeal to the Judicial Committee of the Privy Council, asserting that its appeal far surpassed the statutory ‘as of right’ threshold of $4,000.00. In the alternative Rubis submitted that its proposed JCPC grounds (which, inter alia, sought a reconsideration of the doctrine of Rylands v Fletcher pertaining to: (i) the non-natural user of land concept and (ii) liability of an owner not in occupation) otherwise raised issues of public importance. Nevertheless, the Court of Appeal instead sided with Ms. Russell (who contested Rubis’ application for conditional leave), and rejected Rubis’ application for conditional leave on the basis that the claim as pleaded by Ms. Russell was not one where liquidated damages were sought, thereby resulting in Rubis’ intended second appeal not being an appeal ‘as of right’. The Court of Appeal further found that Rubis’ appeal was not one which raised any point(s) of public importance (in which case the Court of Appeal would otherwise grant discretionary leave). Determined to advance its appeal, Rubis approached the Privy Council directly for special leave to appeal. On 27 January 2025, the Privy Council (Lord Lloyd-Jones, Lord Briggs, Lord Hamblen, Lord Stephens, Lady Rose, Lord Richards and Lady Simler) heard oral arguments from the parties as to whether Rubis’ intended second appeal was ‘as of right’, and in its judgment determined that Rubis’ intended second appeal was in fact an appeal ‘as of right’.
In examining the central issue in the case at bar, the Privy Council confirmed that in determining whether a statutorily prescribed ‘as of right’ threshold was met or otherwise, found that the salient issue for consideration was the value of the appeal to the parties to the proposed appeal to the Board, and not whether the claim was one which sought liquidated or unliquidated damages when initially commenced. In delivering the Board’s opinion, Lord Hamblen found as follows:
- Applying the approach laid down by the authorities to the facts of the present case, the judgment against which Rubis seeks to appeal awarded Ms. Russell damages of $159,450. Rubis appeals against the entirety of the judgment. That judgment affects the interest of Rubis to an extent that is in excess of the value threshold of $4,000. There is therefore a right to appeal under section 23.
- The Court of Appeal was wrong to focus on the claim originally made rather than the judgment being appealed. That judgment is for a precise, quantified sum. The fact that the claim originally made was for unliquidated damages is irrelevant. That claim is now merged in a judgment for a liquidated amount. There is no difficulty in identifying or valuing the amount at stake for Rubis on the appeal. It is the judgment sum of $159,450. …
- In principle, what matters is the valuation of the claim, not its label. Every money claim has a value and a claim for unliquidated damages is a claim for a monetary amount, namely the true value of the claim properly assessed.
- The exclusion of unliquidated claims from the scope of section 23 would have arbitrary and unjust consequences. …
The Privy Council’s second look into Rubis’ second application for leave to advance its second appeal is most instructive and serves to bring clarity to a point of law (regarding a party’s entitlement to appeal ‘as of right’ from a decision of a Court of Appeal), which had in recent times fallen into a state of flux. Now, it is safe to say that would-be respondents to second appeals have a clear position on the law which obtains, and by which they can be guided in determining the merits in resisting an application for conditional leave, in circumstances where the value of the appeal (properly calculated) is in excess of the statutorily prescribed ‘as of right’ threshold.
The full judgment is available at: [2025] UKPC 13.
Aidan Casey KC, Oscar Johnson, Jr. KC, Peter Burgess, Keith O. Major, Jr. and Dennise D. Newton (instructed by Sinclair Gibson LLP) for the Appellant. Krystal D. Rolle KC and Darron B. Cash (instructed by Rolle and Rolle) for the Respondent.
AUTHORS
Senior Partner – Oscar N. Johnson, Jr., K.C.; Senior Associate – Keith O. Major, Jr.; and Associate – Dennise Newton
