CLA News / Advocacy in Privy Council Appeals by Richard Clayton KC

Presenting an appeal before the Privy Council is quite different from preparing for other court hearings. To persuade expert Supreme Court Justices when addressing questions of law requires a particular skill set. In this webinar I shall provide practical tips based on my own experience- from conducting over 30 Privy Council, UK Supreme Court and House of Lords cases. I do not propose to embark on a detailed legal analysis of Privy Council case law.

The basic rules governing appeals are set out in the Privy Council practice directions (JCPC PD), although practitioners should be aware of the framework established by the Judicial Committee (Appellate Jurisdiction) Rules 2009 (as amended).[1] The Privy Council recently consulted on new Rules (including a controversial “merits review”),[2] but decided in July 2024 to put the proposed Rules on hold.[3]  General provisions affecting the Privy Council are covered in JCPD 1[4] and the important work carried out by the Registry (including how to file appeals) is discussed in JCPD 2.[5]

Drafting the Statement of Facts and Issues, précis and chronology 

Advocacy on paper significantly impacts on whether an appeal succeeds or fails. The first stage in the appeal, whether as of right (after filing a notice of appeal)[6] or following a successful permission application)[7] requires the appellant to produce the Record[8] and to draft several documents including the Statement of Facts and Issues (the SFI).

The SFI must be a single document, drafted by the appellant but submitted to and agreed by every respondent before being filed with the Registry.[9] The SFI must set out “the relevant facts and the issues“. If the parties cannot agree to it, the SFI should clearly identify what items are disputed.

It is useful to draft a chronology with key dates as an annex to the SFI- which cross-refers to the page numbers of any relevant documents in the record. [10] The SFI must also be accompanied by a précis of the case which is no more than 1 side of A4 paper. Again, the appellant does the initial drafting which is agreed by every respondent before filing.[11]

Arguing about contents of the SFI

JCPC 5 para 5.1.7 expressly states that the SFI “is a neutral document and is not to be used to argue a party’s case. It is the professional duty of the parties’ legal representatives to co-operate to produce the statement.”

Nevertheless, the role of the SFI is frequently misunderstood. Advocates often spend a great deal of time and energy arguing over the wording of the SFI. But I would argue that this is a sterile debate.

First, the Privy Council reacts badly to any failure to agree with the SFI. Presenting the Privy Council with a heavily tracked document recording the history of amendments to the SFI impresses no one.

More importantly, the parties can always include a more controversial description of the facts in their written submissions or cases.

Debates over drafting the “issues”

This raises one important tactical question. It is vital for the advocates to ensure that the language of the “issue” is wide enough to embrace all of the submissions the appellant or respondent ultimately wants to make.

On the other hand, some possible grounds of appeal have little traction.

Appealing to the Privy Council on findings of fact

First and foremost, the Privy Council lean heavily against appeals against findings of fact by the first instance Court which were subsequently rejected by the Court of Appeal.  This principle (emanating from Devi v Roy [1946] AC 508) has particular significance to many countries which appeal to the Privy Council. Many advocates in the domestic courts advance as the first ground of appeal to the Court of Appeal a complaint that the first instance Judge misapplied the evidence and reached the wrong conclusions on fact.

However, the Privy Council doctrine of “concurrent findings of fact” means that, save in exceptional cases, the Privy Council will not permit a second appeal against findings of fact. In Sancus Financial v Holm [2022] 1 W.L.R. 5181 the Privy Council spelt out the rationale per Lord Briggs and Lord Kitchen:

• First, the reliability of the trial judge’s findings has already been subjected to careful review by an experienced court of appeal. Consequently, the right of access to justice by an appeal has already have been satisfied.
• Secondly, where two courts, one of them appellate, have agreed upon a finding of fact, it is inherently unlikely that a second appellate court will be well-placed to disagree with the two earlier decision with any degree of confidence.
• Thirdly, the parties are entitled to expect finality in litigation, at least where no contentious point of law of wider public importance is engaged.
• Fourthly, a minute examination of detailed evidence underlying factual findings of fact is expensive and time-consuming, likely to strain the Privy Council’s limited resources, if undertaken frequently.
• Finally, fact finding will frequently benefit from a deeper understanding of local culture and context which local courts have, compared to the Privy Council in London.

In Sanctus the Privy Council also explained its new approach to appeals challenging factual findings where the Court of Appeal has already rejected an appeal of fact.

• Where the entire appeal concerns concurrent findings of fact, the Privy Council is likely to require the appellant to demonstrate, as a preliminary condition, that there are exceptional circumstances, before appeal proceeds further.
• The same may applies equally where concurrent findings of fact arise in respect of only some issues on appeal.
• The need for “exceptionality” must be clearly demonstrated in the appellant’s case. If the Privy Council is not persuaded by pre-reading, it may demand concise oral submissions at the outset of the hearing.
• It is insufficient to assert without giving specific reasons that the case is “exceptional,” or to describe the alleged miscarriage of justice as “gross”.
• Nor is it sufficient to raise as a separate ground of appeal a claim that there were “serious departures from fair procedure”, if its object is, in substance, to attack on concurrent findings of fact.
• It is just as much a challenge to concurrent findings of fact to ask for them to be retried as it is to ask for them to be reversed.

The Privy Council in Sanctus then characterised “exceptionality” in very restrictive terms:

7. …. In this context it is worth bearing in mind the extent of the exceptionality contemplated in para 4 of Lord Thankerton’s summary in Devi v Roy, namely that (leaving aside errors of law) there has been such a departure from the rules which permeate judicial procedure as to make what happened not fairly described as judicial procedure at all. Although Lord Thankerton was careful not to close the doors on categories of exceptionality, his only concrete example sets a sufficiently high hurdle that its presence ought to be capable of being demonstrated relatively summarily.

 Points of law not previously raised in the courts below

Once again, the Privy Council is normally very reluctant to entertain a legal submission not advanced in the courts below.

It is obviously imperative that local courts have the first opportunity to address a legal argument in its proper factual and cultural context. This Privy Council’s approach to its appellate role as an apex court means that it reflects and gives weight to the views of local courts- rather than to decide points of law in the abstract.

Filing the SFI

The SFI must be filed in electronic form at the Registry.[12]  Within 14 days after filing the SFI, the parties must comply with Rule 22(1) by notifying the Registrar that the appeal is ready to list and providing a time estimate: JCPC PD 6 para 6.2.1.[13]

Time estimates

Time estimates for appeal hearing invariably are for 1 day. However, where an appeal hearing involves more than two parties, it is likely to lasr 1 ½ to 2 days.

Requests for expedition

JCPD PD 6 para 6.2.4 states that any request for an expedited hearing (for eg an interim injunction) should be made to the Registrar. Wherever possible, the views of all parties should be obtained before making a request.

Drafting the appellant’s and respondent’s cases

The case contains the written argument in the appeal. It is the key moment to demonstrate advocacy though drafting submissions on paper.

JCPC PD 6.3.1 confirms that “the Court favours brevity and a case should be a concise summary of the submissions to be developed. A case should not (without permission of the Court) exceed 50 pages of A4 size and in most cases fewer than 50 pages will be sufficient. Cases in excess of 50 pages will not be accepted unless permission to file a longer case has been sought and obtained”. Such an application should be made not less than 14 days before the case is due to be filed.

The page limit for the case includes footnotes, which should be brief and should not contain substantive arguments. In addition to the page limit, the following formatting is required:

• Font size 12;
• 5 line spacing;
• Numbered paragraphs;
• Signature and name of Counsel to appear at the end (an electronic signature will suffice).

JCPC PD 6 para 6.3.2 stresses that the case should be confined to the heads of argument that counsel propose to submit at the hearing and omit material contained in the statement of facts and issues.[14]

Abandoning points below or making new points  

JCPC PD 6 para 6.3.3 states that a party abandoning a point taken below to make this plain in their case. If they intend to apply at the hearing to introduce a new point not taken below, this should also be indicated in their case and the Registrar informed. If the new point involves introducing fresh evidence, an application for permission must be made either: (i) in the case itself; or (ii) by filing an application for permission to adduce the fresh evidence (see JCPC PD para 7.1).[15]

Inviting the Privy Council to depart from its own decision

JCPC PD para 6.3.4 states that, if a party intends to invite the Privy Council to depart from one of its own decisions or from a decision of the House of Lords or the UK Supreme Court, this intention must be clearly stated in a separate paragraph of their case, to which special attention must be drawn.

An important recent example was Chandler v The State (No 2) [2023] A.C. 285. In Chandler a 9 judge panel upheld the mandatory death penalty, following its earlier decision in Matthew v The State [2005] 1 AC 433 and declined to follow three more recent decisions of the Caribbean Court of Justice.[16]

The difficulties drafting cases for the appellant

When drafting the case for the appellant, the focus of an appeal should be on the reasoning of the Court of Appeal. Although the procedure entitles the case to run to 50 pages, shorter is normally better.

It is helpful to summarise the appellant’s submissions at the outset and to deal in detail with the criticisms made of the judgments below.

As discussed earlier, appeals of fact will virtually always be dismissed because of the concurrent findings of fact doctrine. Similarly, an appellant who raises new points not previously raised before the local courts will experience strong resistance at the hearing.

The difficulties drafting cases for the respondent

Drafting cases for the respondent demands close attention to the judgments of the courts below. This will often necessitate the case sets to detail the judgments below and their reasoning.

Sometimes local courts express themselves in very broad terms.  Nevertheless, the advocate may be able to formulate a submission more precisely- and identify the evidence which supports that submission. The upshot, however, is that drafting for a respondent often gives an advocate less flexibility than acting for an appellant.

On other occasions, however, the fact that the local courts express their reasons in very strong terms may not be a reliable guide to the Privy Council’s final conclusion.  For instance, in the recent case of DPP v Durham [2024] UKPC 21 the majority reasoning of the Trinidad Court of Appeal made excoriating criticisms of the DPP. But the Privy Council took a very different view, deciding that the procedural safeguards of a criminal trial, effectively, eliminated any prospect of criminal defendants using judicial review to quash an impending criminal prosecution.[17]

JCPC PD para 6.3.4 states that a respondent who wishes to contend that a decision of the court below should be affirmed on grounds other than those made to the local court must set out the grounds for that contention in their case. A respondent is entitled to refer to earlier submissions made to the courts below. However, an entirely new argument is unlikely to succeed.

The hearing before the Privy Council

In a one day appeal counsel for the appellant and respondent has 2 ¼ hours to make oral submissions. The appellant will then close with, say, 15 minutes to reply to the respondent’s submissions.

 By time of the hearing the Privy Council has of course considered the parties’ cases and some key documents and authorities.  This means that the issues between the parties are likely to have narrowed– so that the advocates must define the issues to the questions which are now in dispute.

Furthermore, it is vital for advocates to mull over their oral submissions in advance: to reflect on what questions the Privy Council will ask counsel and how they should be answered. Working out answers beforehand is especially important because Privy Council advocacy frequently boils down into a question and answer exercise. There is nothing that damages an advocate more than ducking a question by failing to give an immediate answer by trying to park the answer. The Privy Council Justice raised the question in the first place because he or she felt that the answer had important implications on the merits of an appeal.

 Advocates should be alert to one particular danger.  Sometimes, a Privy Council justice at the outset of the appeal, will ask a question which focuses on the weakest point in the advocate’s case- which then provokes a poor response.  This can short circuit the whole appeal, so it is wise to think through in advance all the submission the advocate is advanced, both strong ones and weak.

Documents before the Privy Council

JCPC PD para 5.1.1 confirms that the Privy Council is moving to a system where nearly all documents filed are to be provided in electronic form only.[18]

However, the original and one hard copy of key documents such as the statement of facts and issues may be requested for the court record.

 Conducting the hearing for an appellant

In the light of the respective cases filed, it is critical that the advocate summarise the precise issues for the Privy Council must actually decide. An advocate must grab the bull by the horns. He or she has about 15 minutes to seize the Privy Council’ attention- and to demonstrate that the legal submissions are important and decisive. In fact, the hearing will develop into a flow of questions from the Justices. Or descend into listless lengthy submissions- where the Justices appear to be visibly bored.

In reality, advocacy for an appellant is a bit of a free form exercise. There is no point just reading aloud the case originally submitted (although it may be prudent to cross refer to parts of it). He or she must also keep an eye on the clock to ensure that all the main submissions are covered.

Conducting the hearing for a respondent

By the time the advocate starts, the advocate will have a pretty good idea about how the Privy Council views the merits of an appeal. The quality and persuasiveness of the answers given by the respondent when answering questions from the Justices will often determine the appeal’s outcome.

Nonetheless, there is more scope for a respondent’s advocate to take the Privy Council through the submissions as recorded in the case. Experience for respondent advocates shows that less is often more.

The appellant’s reply

An advocate’s reply is frequently influential. The respondent will have already laid out the central planks of his or her submissions- and the reply is the advocate’s opportunity to demonstrate that the respondent’s main arguments do not work.

The role of junior counsel at the hearing

The Privy Council now expects the junior counsel to have a speaking role at the appeal.

The English Court of Appeal has recently provided some guidelines, Encouraging greater participation of junior counsel in courts and tribunals hearings, which the Privy Council follow:[19]

Allowing junior counsel to participate in oral argument supports their continuing development as advocates. There is also anecdotal evidence, supported by empirical data from a Supreme Court study, that women are under-represented as leading advocates, especially in major civil and Business and Property Courts litigation.

 It is desirable therefore to give junior counsel in general, and female junior counsel in particular, better opportunities to advance oral argument in courts and tribunals.

 It is acknowledged that this will not always be possible, and will depend upon the nature of the argument and the length of the hearing. However in all suitable cases involving leading and junior counsel, particularly where junior counsel has been heavily involved in the drafting of the written argument, judges will be expected to ask whether a speaking part for junior counsel has been considered, and will generally be amenable to both junior and leading counsel addressing the court or tribunal (junior counsel may for example, deal with intermediate points in the principal argument).  In cases where this issue is likely to arise therefore, the parties should consider it in advance of the commencement of the oral argument.

Costs

Costs issues are addressed after the Privy Council gives judgment and are contained in JCPC PD 9.[20]   JCPC PD 9.2.1 state that costs are in the discretion of the Privy Council and it “may make such orders as it considers just in respect of the costs of any appeal, application for permission to appeal, or other application to or proceeding before the Judicial Committee“: see Rule 43(1).  The Privy Council will determine the basis for the costs assessment including whether they are ordered on a standard or indemnity basis[21] and set out the procedure for provisional[22] and detailed costs assessment.[23]

Richard Clayton KC

This paper is based on a presentation given by Richard Clayton KC during a Commonwealth Lawyers Association webinar on 25 July 2024 ,when he spoke together with Desiree Artesi and Louise di Mambro OBE.

[1]   For the Judicial Committee (Appellate Jurisdiction) Rules 2009 (as amended), see https://www.jcpc.uk/docs/judicial-committee-appellate-jurisdiction-rules-2009.pdf Rules 10-16 apply to application for permission to appeal; rules 17 -27 apply to the commencement and preparation of appeal; rules 28-30  apply to hearing and decision of appeal; rules 31-42 contain miscellaneous provisions; and rules 43-52  contain the costs rules.

Costs: rules 43 – 52

[2]   For my criticisms of the proposed “merits review”, see https://www.claytoncomments.com/wp-content/uploads/2024/05/PROPOSALS-FOR-IMPORTANT-CHANGES-TO-PRIVY-COUNCIL-PROCEDURE-7.5.24.pdf

[3]   See https://www.claytoncomments.com/privy-council/privy-council-reverse-its-proposals-to-change-its-procedure/

[4]   For the general provisions of the Privy Council in JCPD 1, see https://www.jcpc.uk/procedures/practice-direction-01.html

[5]   For the work carried out by the Registry in JCPD 2, see https://www.jcpc.uk/procedures/practice-direction-02.html

[6]   For the provisions governing Notices of Appeal in JCPC 4, see https://www.jcpc.uk/procedures/practice-direction-04.html

[7]   For the provisions governing applications for permission to appeal, see https://www.jcpc.uk/procedures/practice-direction-03.html

[8]   See JCPC PD 5 paras 5.1.3-5.1.5 https://www.jcpc.uk/procedures/practice-direction-05.html

[9]   See JCPC PC para 5.1.7

[10]   See JCPC PC para 5.1.7 which states that the SFI should also refer to every law report of the proceedings below, should state the duration of the proceedings below and should be signed by counsel for both parties.

[11]   See JCPC para 5.1.8

[12]   JCPC PD 9 deals with the filing documents with the Registry electronically.

[13]   JCPC PD6 para 6.2.1 states that, within 14 days after the filing of the statement of facts and issues (see paras 5.1.7, 5.2.5 and 5.2.6 of JCPC PD 5, the parties must notify the Registrar that the appeal is ready to list and specify the number of hours that their respective counsel estimate to be necessary for their oral submission: see Rule 22(1)). The parties are encouraged to offer agreed dates which are convenient to all Counsel at an early stage and there is no need to wait until after filing the SFI to fix the hearing date. Time estimates must be as accurate as possible since, subject to the Judicial Committee’s discretion, they are used as the basis for arranging the Judicial Committee’s list. The sittings of the Privy Council (or the ‘law terms’) are four in each year:

1. the Michaelmas sittings which begin on 1 October and end on 21 December;
2. the Hilary sittings which begin on 11 January and end on the Wednesday before Easter Sunday;
3. the Easter sittings which begin on the second Tuesday after Easter Sunday and end on the Friday before the spring holiday; and
4. the Trinity sittings which begin on the second Tuesday after the spring holiday and end on 31 July.

The ‘spring holiday’ means the bank holiday falling on the last Monday in May or any day appointed instead of that day under section 1(2) of the Banking and Financial Dealings Act 1971.

[14]   See JCPC PD para 5.1.7.

[15]   See JCPC PD para 7.1.

[16]   For a discussion of Chandler No 2 see https://www.claytoncomments.com/wp-content/uploads/2022/07/Chandler-article-15.7.22.pdf

[17]   See https://www.claytoncomments.com/wp-content/uploads/2024/07/Privy-Council-Durham-final.pdf

[18]   JCPC PD 9 deals with the filing documents with the Registry electronically.

[19]   Encouraging greater participation of junior counsel in courts and tribunals hearings was issued on 8 November 2023 by Baroness Carr, Lady Chief Justice of England & Wales; Sir Geoffrey Vos, Master of the Rolls; Dame Victoria Sharp, President of the King’s Bench Division; Sir Andrew McFarlane, President of the Family Division; Sir Julian Flaux, Chancellor of the High Court; and

Sir Keith Lindblom, Senior President of Tribunals https://www.judiciary.uk/encouraging-greater-participation-of-junior-counsel-in-courts-and-tribunals-hearings/

[20]   JCPC PD 9 para 1.1 states that the costs incurred in proceedings before the Privy Council allow detailed assessments of costs to be conducted by the Registrar or a Costs Judge of the Senior Courts Costs Office. Under section 15 of the Judicial Committee Act 1833 the Judicial Committee may appoint a person or persons other than the Registrar to tax or assess costs and the Costs Judges have been appointed under this provision. A Costs Judge sits alone when assessing costs.

[21]   JCPC PD 9 para 3

[22]   JCPC PD 9 para 7

[23]   JCPC PD 9 see introduction (paras 1.2-1.3), for points of dispute (paras 5.6-5.7), fees (paras 5.8-5.13), for completing Form 5 (paras 5.14-15), extensions of time and filings out of time (paras 6.1-6.3), attendance and detailed assessment (paras 8.1-8.5), the costs officer’s discretion (para 9), the review of the costs officer (para 10), and references to a single judge (para 10.6-10.7) or to the Privy Council itself (para 10.8).