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Test for Leave to Appeal to the Privy Council


On Thursday 6 May 2021 the Court of Appeal of the Cayman Islands (Goldring P, Rix and Martin JJA) handed down a second judgment in Arcelormittal USA LLC v Essar Global Fund Limited & ors. The Court dealt with the niche issue of the right to appeal to the JCPC under section 3 of the Cayman Islands (Appeals to Privy Council) Order 1984 which is in similar terms to many other jurisdictions. An appeal lies as of right from a final decision where the appeal involves directly or indirectly a right of the value of £300 or upwards.

The CICA held that a Norwich Pharmacal Order was a final decision, but there was no appeal as of right. The relevant right was the Claimant’s claim and not the Defendant’s right or rights - however affected. There was no right to a Norwich Pharmacal Order as the Court always retained a discretion to refuse the application. The most that could be said was that the Claimant had a right to seek enforcement of “a duty to assist the person who has been wronged by giving him full information”. The only relevant right was a right to have the application properly determined. Such a right was incapable of valuation in monetary terms and not simply difficult to quantify.  It was therefore no different in principle to the public law right considered by Lord Sumption in Jacpot Limited v Gambling Regulatory Authority [2018] UKPC 16.

 The Judgment is here.

Vernon Flynn QC was instructed by Ogier.