What is the Privy Council?

Family Law|April 29th 2015

A family law decision of the Privy Council is a comparative rarity. As we’ve had one this week, I thought I would take the opportunity to have a quick look at this unique judicial body.

The Privy Council is truly ancient in origin, and is at the root of our entire judicial system, although the role of the court now is somewhat peripheral. It can be traced back to the ‘Curia Regis’, or ‘royal council’, introduced in England after the Norman conquest. The council was made up of advisers to the King who, amongst other things, acted as a court dealing with petitions to the King from subjects who had grievances against the administration of justice.

The Curia Regis eventually developed into Parliament, after which most petitions were referred to the High Court of Parliament. The Privy Council court gained its separate identity when, at the beginning of the fourteenth century, receivers were appointed to aid the dispensation of justice in Parliament.  One group was appointed for Great Britain and Ireland, and one for the Channel Islands. Thus, appeals from the Channel Islands became the first regular appellate business of the Privy Council. Subsequently, as the British Empire grew, the Privy Council dealt with appeals from other dominions and it thus became the highest court of appeal for the British Empire. It now deals with appeals from many current and former Commonwealth countries, as well as the United Kingdom’s overseas territories, crown dependencies, and military sovereign base areas.

Whilst we (lawyers at least) refer to the court as the ‘Privy Council’, that term actually still refers to the formal body of advisers to the sovereign. The court is actually one of the committees of the Privy Council, and its proper title is the ‘Judicial Committee of the Privy Council’.

The Judicial Committee comprises Justices of the Supreme Court, along with other senior judges, including judges of certain superior courts in Commonwealth countries. Most of the work of the Committee is, however, carried out by the Supreme Court Justices and, indeed, the Committee now shares the same building as the Supreme Court, in Parliament Square. Cases are dealt with by a panel of either three or five judges, which is referred to by the Mafia-esque term ‘the Board’.

Although it may seem something of an anachronism to many, the Privy Council still makes important decisions including, as I mentioned at the outset, the occasional decision in family law cases. Recent examples include the 2008 Isle of Man case MacLeod v MacLeod, which concerned the enforceability of a post-nuptial agreement and was referred to in the subsequent leading case Radmacher v Granatino. More recently in 2013 we had the case Ramnarine v Ramnarine, which concerned an unsuccessful appeal by a wife against an order made by the Court of Appeal of Trinidad and Tobago in proceedings for financial relief between her and her ex-husband following divorce.

And what of this week’s Privy Council case? This was Bromfield v Bromfield, an appeal by a wife against a financial remedies decision of the Jamaican Supreme Court. The appeal concerned the extent of her interest in shares in various companies and properties, and whether a lump sum awarded to her to supersede a maintenance order was adequate. The wife was successful in her appeal in respect of the lump sum order. Although I’m not sure that it is a point that is likely to be raised in our courts, perhaps the most interesting aspect of the Privy Council’s judgment related to the issue of the effect of the remarriage of the paying party upon a maintenance order.

The President of the Jamaican Court of Appeal, which had refused the wife’s appeal against the Jamaican Supreme Court order (rather confusingly, the Jamaican Supreme Court is a lower court than the Jamaican Court of Appeal) and against whose order the wife was appealing to the Privy Council, had held that a party who had remarried ought not to be expected to continue to maintain the other party of the dissolved marriage indefinitely. Giving the judgment of the Privy Council, Lord Wilson held that this was not an accurate statement of the law. The accurate statement is that any legal obligation of the husband to provide support for another person is one of the matters, but no more than one of the matters, which the court is required to consider. This reflects the principle in English law stated by Lord Justice Wilson himself (as he then was) in Vaughan v Vaughan that “although it [i.e. the court] should not go so far as to give priority to the claims of the first wife, it should certainly not give priority to the claims of the second wife”.

So there we are: the Privy Council, an ancient and anachronistic judicial body, but still with something important to say.

Photo of Kingston, Jamaica by mo lish via Flickr

Author: Stowe Family Law

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