Overruled: Court of Appeal sets new test for permission to appeal applications in Jersey
14 April 2014
In Crociani, Foortse, BNP Paribas Jersey Trust Corporation Ltd & Appleby Trust (Mauritius) Ltd v Crociani & Others  JCA 089 ("Crociani"), Bedell Cristin appeared for the successful Respondents to the appeal in what is already being hailed as a landmark trusts judgment. To read our briefing on the judgment's wider implications, please click here. The Crociani decision also has particular significance to local practitioners and clients since it establishes a new test for permission to appeal from all future decisions of the Royal Court in civil proceedings.
Old test for leave to appeal
Formerly, following the well-known authority of Glazebrook v Housing Committee  JLR Note 43 ("Glazebrook"), in order to successfully obtain leave to appeal from a decision of the Royal Court, the Appellant had to show that:
- there was a clear case of something having gone wrong; or
- there was a question of general principle which fell to be decided for the first time; or
- there was an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.
The first limb of the Glazebrook test is no longer good law, following the decision of the Court of Appeal in Crociani.
New test for leave to appeal
In giving the lead judgment in Crociani, the President of the Court of Appeal, Beloff JA, observed that the first limb of the Glazebrook test ("a clear case of something having gone wrong") appeared, as a matter of language, to be a basis for allowing an appeal, rather than merely granting permission to appeal.
Accordingly, in lieu of the first limb of the former Glazebrook test, henceforth the Royal Court and the Court of Appeal in Jersey should apply the criterion that the appeal has "a real prospect of success" when considering whether or not to grant permission under the Court of Appeal (Jersey) Law 1961, Article 13(1)(e).
Accordingly, applying the new Crociani test, in order to successfully obtain leave to appeal from a decision of the Royal Court, the Appellant must now show that:
- the appeal has a real prospect of success; or
- there is a question of general principle which falls to be decided for the first time; or
- there is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.
Significance of the new test
The change in the permission to appeal test brings the two Bailiwicks of Jersey and Guernsey into alignment for the first time on the point, and follows previous dicta in Cotterill v Ozanne (2) (2011 – 12 GLR 1) and Warren v. Attorney General ( (2) JLR 286) as well as supportive observations in McNamara v Gauson (2009-10 GLR 387).
The new Crociani test for permission to appeal applications from decisions of the Royal Court in civil proceedings brings welcome clarity to this area of the law for practitioners and clients alike. It remains to be seen what, if any, substantive difference this test will make in future cases. However, on first impression, the refinement in the law appears to relax slightly the test for obtaining leave to appeal.