EMLICO's brief to the Privy Council argues that Justice Wade-Miller's order, which set aside the earlier court's grant of leave to appeal for judicial
definitive order.
The insolvent EMLICO is being liquidated by joint liquidators David Lines and Peter Mitchell of Coopers & Lybrand Bermuda and Christopher Hughes of Coopers & Lybrand London.
Lawyers acting on behalf of the company and its liquidators have stated in legal briefs that: "... there is no relevant distinction between provisions requiring the leave of a designated court to institute an appeal to that designated court, and provisions requiring the leave of a designated court to institute judicial review proceedings in that designated court.
"The same principle applies to both types of cases.'' They said that the Supreme Court's refusal to grant Kemper leave to apply for judicial review is not appealable and the Court of Appeal has no jurisdiction to hear Kemper's purported appeal.
But since Kemper alternatively sought from the Court of Appeal the Court's own grant for leave to apply for judicial review, EMLICO lawyers stated that it was apparently based on the English practice of making "renewed applications'' to the Court of Appeal for leave to apply to that court for judicial review.
And they said, "There is no Bermudian precedent for such a `renewed application' to the Court of Appeal for Bermuda.'' They concluded that the Court of Appeal has no jurisdiction to entertain Kemper's alternative application.
The brief stated: "There is no inherent jurisdiction in the Court of Appeal to exercise any original jurisdiction to grant leave to commence judicial review proceedings.'' EMLICO asks that Kemper's appeal be dismissed, with costs.
Their reasoning includes that no appeal is permitted of Justice Wade-Miller's December 18, 1996 Supreme Court ruling setting aside Kemper's permission for leave to apply for judicial review.
And no other statutory provision, they said, conferred a right of appeal from such refusal. And accordingly, the Court of Appeal has no jurisdiction to hear Kemper's purported appeal.
Lawyers: Elizabeth Gloster QC, Geoffrey Bell QC of Appleby, Spurling & Kempe and Alan Griffiths.
COURTS CTS
