"in civil cases for applications that, in the opinion of the Appeal Panel, raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal; an application which in the opinion of the Appeal Panel does not raise such a point of law is refused on that ground".
The appellants also refer to the decision of this Court in Crociani v Crociani  JCA 089, the judgment of Beloff JA at paragraphs 50 to 53, but that decision was concerned with the granting of leave to appeal from the Royal Court to the Court of Appeal pursuant to Art 13 of the 1961 Law and it was not referred to otherwise by either party.
"Appeals against any order or judgment of the Court of Appeal in England and Wales or in Northern Ireland can be brought only with the permission of the Court of Appeal or of this court. In practice, the Court of Appeal normally refuses permission so as to enable an appeal panel of this court to select, from the applications before it for permission to appeal, the cases raising the most important issues."
Although that was said in the context of an appeal from the Court of Session (which did not require leave or permission at that time) and may therefore be regarded as obiter, it nevertheless appears to be a statement of more general significance. It was said in the context of the criteria applied by the Appeal Panel of the Supreme Court when considering the grant of permission to appeal by reference to paragraph 3.3.3 of the Supreme Court Practice Direction 3 ("the Supreme Court Practice Direction") which states that:
"Permission to appeal is granted for applications that, in the opinion of the Appeal Panel, raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal..."
The formulation of "an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time" is the same as that applied to an application for permission to appeal to the Judicial Committee of the Privy Council which is set out in paragraph 3.3.3(a) of the JCPC Practice Direction. As a result of this, the Court indicated to the parties that it would be grateful for any assistance at the hearing of this matter in relation to the practice referred to by Lord Reed both as it may be observed from the rulings of appellate courts in the United Kingdom and whether the same practice applies in the Court of Appeal of Jersey.
(i) Is a prohibition under law imposed by a State on the sale of an asset without State consent sufficient to constitute "control" or "interest" for the purposes of State immunity from enforcement?
(ii) Does it make any difference if the State also has the power to require transfer of the asset free of charge to any person (including itself), which it has exercised in the past?
(iii) Does it make any difference, specifically in relation to shares, that the State has power under law to appoint the directors and has exercised that power?
(iv) Is it right to say that an asset cannot be immune from enforcement unless it could also be enforced against if there were a judgment against the State?
"The public interest is served, in relation to appeals from England and Wales and Northern Ireland, by the rule that permission to appeal is granted only for applications that, in the opinion of the appeal panel, raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed onappeal. An application which in the opinion of the appeal panel does not raise such a point of law is refused on that ground (Supreme Court Practice Direction 3.3.3). The reasons for adopting that approach were explained by Lord Bingham of Cornhill, at the time when the final court of appeal was the House of Lords, in R v Secretary of State for Trade and Industry, ex p Eastaway [ 1 WLR 2222] (p 2228):
'In its role as a supreme court the House must necessarily concentrate its attention on a relatively small number of cases recognised as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist.'"
"4. In relation to this matter we do not intend to set out a prescriptive test to be followed. We note from the advice of the Board of the Privy Council in Daily Telegraph Newspaper Company Ltd-v-McLaughain  AC 776 that, both in relation to what is said on page 779 in that decision and in what is said on page 778 under reference to advice of the Board delivered by Lord Watson in La Cité de Montréal-v-Les Ecclésiastiques de St Sulpice de Montréal (1889) 14 App Cas 660 the matter is one which really has to be approached on a case by case basis. For our own part, sitting as only three of the members of the Court of Appeal of Jersey we would not wish to say anything at this stage which would necessarily bind those other members sitting in relation to other applications.
5. However, adopting the approach set out for the Privy Council in its own decision in the Daily Telegraph case, where there was reference to matters of gravity, matter of public interest, important questions of Law or public importance of a very substantial character, we consider in relation to the Gécamines appeal that this is a matter in respect of which we are prepared to grant leave to make appeal to the Privy Council. The issues which it raises areundoubtedly important questions of Law, as seen both by the fact that there was a divided decision of this Court and, as I think all those present are aware, by the nature of the debate which took place when we heard the matter in May."
The Court then proceeded to refuse leave to appeal on other aspects.
"30. In the recent litigation in these courts in FG Hemisphere Associates LLC v DRC and Gecamines  JLR 486, a differently constituted Court of Appeal was asked to consider an application for leave to appeal with specific reference to the decision in Daily Telegraph Newspaper Company v McLaughlin  AC 776 where the Privy Council gave consideration as to the practice which it would adopt in respect of the granting of special leave. When granting leave in respect of one of the FG Hemisphere appeals this Court noted the Daily Telegraph decision, indicated that it did not intend to set out a prescriptive test to be followed by this Court and observed that the matter was one which really had to be approached on a case by case basis.
31. As we have set out above, we agree that the proper characterization of the matter before us is as a question arising in respect of the proper administration of a trust established under and in terms of the law of Jersey. In addition, JY is a company incorporated under and by virtue of the laws of this jurisdiction. Trust litigation is often necessary: it is always expensive. Where an issue properly arises as to the appropriate administration of the trust and as part of friendly as opposed to adversarial litigation, the main weight of the costs incurred by parties will be borne by the trust and, in consequence, by its beneficiaries. Where such litigation has to take place, it should ordinarily be perfectly sufficient for parties to accept the determination of this appellate court. For our part, we consider that it would only be in exceptional circumstances that we would burden the trust funds with the additional costs of litigation before the Judicial Committee. On this basis, we discern no compelling reason to grant leave to appeal and the application is refused."
"32. In Wilson v Jaymarke Estates Ltd  SC (HL) 135 at , Lord Hope of Craighead observed:-
'It is contrary to the public interest that the time of the House should be taken up with appeals which do not raise an arguable question of general public importance, as this is liable to cause delay in the disposal of appeals which merit its attention.'
33. Similar considerations apply in the Supreme Court: Uprichard v Scottish Ministers  UKSC 21. In common with the Guernsey Court of Appeal (Emerald Bay Worldwide Limited -v- Barclays Wealth Directors (Guernsey) Limited, Guernsey Judgment No 2/2014), I consider that these considerations are relevant to appeals to the Privy Council and should inform the disposal in this jurisdiction of applications for leave to appeal from this court.
34. There being no question of general public importance in the present case, leave should be refused. Mr Syvret is, of course, able to apply to the Privy Council for leave to appeal those parts of our decision that do not fall within Article 14(2) if he wishes to do so."
(i) In its judgment of 22 February 2016, at paragraphs 35-45, the Commissioner considered the respondent’s argument that any stay on the arrêt of the Shares pending appeal should be granted only on condition that the respondent be paid the entire sum due under the Awards, or alternatively that such sum be paid into Court. The alternative condition put forward on that occasion has strong similarities to the condition relating to the provision of security that was sought at the hearing before us. The respondent’s arguments were rejected with reluctance, and a stay was ordered for a fixed period of 28 days with the stated intention of ensuring that a single judge of the Court of Appeal should have the opportunity to review the Commissioner’s decision.
(ii) In the judgment of the Court of Appeal of 18 March 2016, McNeill JA sitting as a single Judge heard similar arguments but was also not persuaded (at paragraphs 10-11) that an order for stay should be made conditional on payment into court of the sums due under the Awards.
"Whilst every case depends on its particular facts the court is likely to find there to be a compelling reason to make a security payment order which has that effect if the judgment debtor has in the past... or is likely in the future... to take steps to denude itself of assets or to put its assets beyond the reach of normal enforcement processes".
He added at paragraph 40 that there may also be a compelling reason to make such an order if there are considerable practical difficulties in effecting execution.
"The potential distinction arises in this way. If a security payment order is made in a liability appeal and the appeal succeeds the money paid into court will go back to the appellant. In the execution appeal, if the appeal succeeds, the court will have to decide what is to happen to the monies paid in. The unsuccessful respondent will seek to have the money paid to him and the court may well so order, unless it can be persuaded that since the appeal against execution has succeeded, the appellant should be put back into the position in which it was before the monies were paid into court."
"The fact that this is an execution appeal does not justify taking a different stance. If this was a liability appeal there would be compelling reason to make the order; and in an execution appeal, where liability is a given, that is so a fortiori. Naftogaz is perfectly entitled to appeal on an execution point but its so doing cannot disguise or alter the fact that it owes the judgment sum now and will continue to do so whatever the upshot of the appeal."
He concluded that the court was entitled to deal robustly with an appellant which sought to invoke its appellate jurisdiction whilst at the same time failing to comply with a judgment pronounced against it, and which was doing whatever it could to avoid having to satisfy the judgment and interest.
"that the First Appellant shall pay 80% of the Respondent’s costs of and incidental to the Appeal and Cross-Appeal (including for the avoidance of doubt the hearings before Commissioner Birt on 20 January and 22 February 2016 and the hearing before Mr McNeill QC sitting as a single judge of the Court of Appeal on 18 March 2016) on the standard basis such costs to be taxed if not agreed."
Both parties were in agreement, in oral submissions before us, that it was appropriate for us to proceed (as did the Commissioner at first instance) by way of a single costs order in relation to the appeal and cross appeal. They also agreed that whilst the respondent should recover the bulk of its costs, a suitable percentage deduction should be made to reflect the fact that the respondent was unsuccessful on its cross appeal. We agree and proceed on this basis.
Already registered ?