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Privy Council guidance on special leave and Montserrat directors’ disqualification

07/08/24

The Privy Council has handed down judgment in Registrar of Companies v Allen et al, an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court regarding the disqualification of company directors in Montserrat.

The judgment addresses, as a preliminary issue, the consequences of failing to comply with the conditions attached to conditional leave to appeal by a lower appellate court. The Board held at paragraph 14 of the judgment that failure to comply with such conditions is not an absolute barrier to obtaining special leave to appeal from the Privy Council, which is an “entirely separate” jurisdiction from the parallel jurisdiction of the local court of appeal. It also held that while the discretionary decision of the lower court (in this case to refuse an extension of time to comply with the conditions for leave) will not lightly be overridden, the Privy Council may separately exercise its discretion and “perfectly properly reach a different decision, without thereby implying that the Court of Appeal erred in its refusal.”

As to the substantive issues in the appeal, which concerned the proper interpretation of the Montserrat Companies Act, the Board gave guidance as to the interpretation of the version of the statute that had previously been in force and, at paragraphs 23-24 of the judgment, identified a number of “puzzling difficulties” with the current version of the Companies Act, the Montserrat Companies Act 2023, as “something which the legislature might wish to iron out both in Montserrat and any other Caribbean countries which have adopted disqualification legislation in the same form”.

The Board also gave guidance as to the evidential status of a report prepared by an inspector appointed to investigate the affairs of a company, at paragraphs 29-32, holding at paragraph 32 that there is no “general principle” that such a report is to be given limited weight, and at paragraph 31 that, “at the end of the day the weight to be attributed to the report as evidence is a matter for the court in each case, having reviewed the evidence as a whole.”

The judgment appears here.

Laura Newton was instructed by the Respondents on a pro bono basis, through Advocate, very shortly before the hearing of the appeal, and appeared as sole counsel in the Privy Council. The Board noted that her “thorough preparation and well-crafted submissions were of substantial assistance.”