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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Panton & Ors v. Financial Institutions Services Ltd (Jamaica) [2003] UKPC 86 (15 December 2003) URL: https://www.bailii.org/uk/cases/UKPC/2003/86.html Cite as: [2003] UKPC 86 |
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Panton
& Ors
v.
Financial
Institutions
Services Ltd (Jamaica) [2003] UKPC 86 (15 December 2003)
Privy Council Appeal No. 95 of 2002
(1) DonaldPanton
(2) JanetPanton
and
(3) Edwin Douglas Appellants
v.
Financial
![]()
Institutions
Services Limited Respondent
FROM
THE COURT OF APPEAL OF JAMAICA
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 15th December 2003
------------------
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Slynn of Hadley
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
Sir Kenneth Keith
[Delivered by Sir Kenneth Keith]
------------------
(1) Is the rule stated in Smithv
Selwyn [1914] 3 KB 98 part of the law of Jamaica? That rule, in the words of Swinfen Eady LJ, is that:
"… where injuries are inflicted on an individual under circumstances which constitute a felony, that felony cannot be made the foundation of a civil action at the suit of the person injured against the person who inflicted the injuries until the latter has been prosecuted or a reasonable excuse shown for his non-prosecution." (105)
(2) If that rule is not part of the law of Jamaica – as the Jamaican courts ruled - should their refusal to exercise their discretion to grant the stay or suspension be reversed?
"In this country, where the distinction [between felonies and misdemeanours] has only historical interest and no practical significance, I would suggest that a court in considering a stay of a civil action where there are concurrent criminal proceedings should likewise ignore entirely the categorization of felonies and misdemeanours."
In using the word "likewise" the judge is referring to Australian decisions which had taken, he said, quite a robust view
of the matter and had ignored the distinction as being of no significance although it was still on the books. With the other members of the court he went on to state and apply a balancing test. Their Lordships note, in particular, that Carey JA had regard to the real situation in Jamaica when deciding to discard the Blackstone rule.
"The origin of the rule in Smithv
Selwyn has been the subject of a deal of consideration by learned writers ... Whether the rule was based upon 'the public policy of a bygone age when no police existed', or whether the origin of the rule lay in the fact that the property of a convicted felon was forfeited to the Crown, its foundation has clearly disappeared, if indeed it ever existed, in New South Wales, despite our retention, for no discernible reason, of a totally artificial
version
of the archaic distinction between felonies and misdemeanours. What remains is the immutable principle that the common law will have regard to the requirements of public policy.
I greatly sympathise with thisview,
and trust that the rule will stay buried, so that its ghost does not again rise to rattle medieval chains (albeit refurbished in
Victorian
times) in modern litigation."
He went on to set out guidelines bearing on the exercise of the inherent jurisdiction of the courts to grant stays of proceedings in the interests of justice. In some jurisdictions that power may also take a statutory form, as in section 41 of the Supreme Court of Judicature (Consolidation) Act 1925 mentioned in the Jefferson case. Whether the power is part of the inherent jurisdiction of the court or takes statutory form appears to have no consequence for its application.
"I will be greatly prejudiced in my defence in the criminal matters if I am forced to proceed with the action herein before the criminal charges are tried."
He mentioned the presumption of innocence, the burden and standard of proof and his right to remain silent in criminal proceedings. He would be obliged to testify in the civil proceedings if he were to have any opportunity of succeeding in them. He did not indicate how that testimony would prejudice him beyond the defence already filed, the material discovered and the answers given. Nor was there any specification in the course of the argument before the Board.