National Bank of Anguilla (Private Banking Trust) and another v Chief Minister of Anguilla and others

The Anguillan Government had formulated a rescue plan to deal with the aftermath of a financial crisis which had placed the country’s national bank in serious difficulties. The Appellants, themselves banks, were depositors with the national bank. Their deposits were not, ultimately, included in the rescue package. Their application for leave to bring judicial review was refused. The Court of Appeal dismissed the appeal observing that the Judge had been entitled to exercise his discretion in the manner that he did.

The Privy Council has unanimously allowed the appeal. The Court of Appeal erred in its approach to reviewing the Judge’s decision. Deciding whether to grant permission to bring judicial review proceedings involves an exercise of judgment about whether there are arguable grounds, not the exercise of a “discretion”. The Court of Appeal should have considered whether the Judge had erred in his conclusion about whether there was an arguable judicial review claim. The Privy Council therefore had to determine that question for itself.

The judicial review claim was plainly arguable. The various suggestions that JR leave should be refused on the basis that primary legislation required the Appellants’ exclusion, either because they were banks, or because they were in administration, or because they were not regulated under the Banking Act 2015, or because of the size of their deposits with the national bank, were all incorrect.

Further, there had been a troubling failure of candour on the part of all four respondents. They had failed to respond meaningfully to the Appellants’ reasonable requests about what had happened, and had withheld relevant documentation from the courts. The duty of candour applies at the leave stage. It protects the public interest and secures the constitutional value of the rule of law. A breach of the duty can itself be taken into account when deciding whether to grant permission.

The judgment and press summary can be found here and here.

David Pievsky KC and Natasha Simonsen acted for the appellants (and claimants) in the proceedings.