Supreme Court
MONTSERRAT
CHAPTER 2.01
SUPREME COURT ACT
Revised Edition showing the law as at 1 January 2002
This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act.
This edition contains a consolidation of the following laws—
Page SUPREME COURT ACT 3 Act 1 of 1968 .. in force 1 March 1968 Amended by Acts: 21 of 1968 .. in force 31 October 1968 2 of 1969 .. in force 18 February 1969 23 of 1975 .. in force 10 October 1975 15 of 1981 .. in force 30 December 1981 21 of 1982 .. in force 1 June 1990 (S.R.O. 4/1990) Amended by S.I. (U.K.) 1983 No. 1112 .. in force 1 September 1983 Amended by Acts: 8 of 1999 .. in force 10 November 1999 14 of 2000 .. in force 8 December 2000 NOTE: Subsidiary Legislation—
The Supreme Court Civil Procedure Rules 2000 (S.R.O. 24/2001) came into effect on 31 December 2000—the Rules are not included in this revised edition; they are published by the Caribbean Law Publishing Company Limited at the request and by the authority of the Chief Justice and two other judges appointed by him.

MONTSERRAT
CHAPTER 2.01
SUPREME COURT ACT
Revised Edition showing the law as at 1 January 2002
This is a revised edition of the law, prepared by the Law Revision Commissioner under the authority of the Revised Edition of the Laws Act.
This edition contains a consolidation of the following laws—
Page SUPREME COURT ACT 3 Act 1 of 1968 .. in force 1 March 1968 Amended by Acts: 21 of 1968 .. in force 31 October 1968 2 of 1969 .. in force 18 February 1969 23 of 1975 .. in force 10 October 1975 15 of 1981 .. in force 30 December 1981 21 of 1982 .. in force 1 June 1990 (S.R.O. 4/1990) Amended by S.I. (U.K.) 1983 No. 1112 .. in force 1 September 1983 Amended by Acts: 8 of 1999 .. in force 10 November 1999 14 of 2000 .. in force 8 December 2000 NOTE: Subsidiary Legislation—
The Supreme Court Civil Procedure Rules 2000 (S.R.O. 24/2001) came into effect on 31 December 2000—the Rules are not included in this revised edition; they are published by the Caribbean Law Publishing Company Limited at the request and by the authority of the Chief Justice and two other judges appointed by him.
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CHAPTER 2.01
SUPREME COURT ACT
ARRANGEMENT OF SECTIONS
SECTION
Preliminary
1. Short title 2. Interpretation 3. Reference to Supreme Court to be deemed a reference to the High Court 4. How Supreme Court Judges are to be addressed 5. Constitution of the Court
PART I
THE HIGH COURT
6. Jurisdiction of former Supreme Court vested in the High Court 7. Jurisdiction of High Court 8. Jurisdiction of High Court in Admiralty 9. Practice in Bankruptcy 10. Practice in Criminal Proceedings 11. Practice in Civil Proceedings and in Probate, Divorce and Matrimonial
Causes 12. Jurisdiction of single Judge 13. Law and equity to be concurrently administered 14. Equities of the plaintiff 15. Equitable defences 16. Counterclaim and third parties 17. Equities appealing incidentally 18. Defence or stay instead of injunction or prohibition 19. Common law and statutory rights and duties 20. Determination of matters completely and finally 21. Rules of equity to prevail 22. Declaratory order 23. Mode of trial 24. Granting of mandamus, etc. 25. Execution of instruments by order of Court 26. Restrictions on institution of vexatious actions
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PART II
COMMISSIONERS OF THE HIGH COURT
27. Appointment of Commissioners
PART III
THE COURT OF APPEAL
Jurisdiction of Court of Appeal
28. Jurisdiction vested in Court of Appeal 29. Practice and procedure in the Court of Appeal 30. Appeals from Magistrate’s Courts
Civil Appeals from High Court
31. Appeals from High Court in Civil Matters 32. Jurisdiction in civil appeal 33. Powers of Court of Appeal on hearing an appeal 34. Supplementary powers of Court of Appeal 35. Power of Court of Appeal as to new trials 36. Wrong rulings as to sufficiency of stamps 37. Criminal Appeals from High Court 38. Right of appeal in criminal cases 39. Determination of appeals in certain cases 40. Powers of Court in special cases 41. Supplementary provisions where appeal against special verdict allowed 42. Re-vesting and restitution of property on conviction 43. Supplementary powers of Court of Appeal 44. Duty to admit fresh evidence 45. Admission of appellant to bail and custody when attending Court 46. Computation of sentence 47. Time for appealing 48. Stay of execution 49. Judge’s notes and report to be furnished on appeal 50. Legal assistance to appellant 51. Right of appellant to be present 52. Costs of appeal 53. Duties of Registrar with respect to notices of appeal, etc. 54. Shorthand notes, etc. 55. Powers which may be exercised by a Judge of the Court
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56. Case stated or questions of law reserved 57. Provisions of this Act applicable to proceedings for case stated 58. Prerogative of mercy 59. Appeals on information
Appeals in Contempt Proceedings
60. Appeals from orders in contempt proceedings
PART IV
OFFICERS OF THE COURT
61. Present officers of Court 62. Registrar 63. Taxation of costs 64. Acting Registrar 65. Hours of business 66. Bailiffs 67. Registrar, clerks and bailiffs not to advise litigants 68. Misconduct of officers of Court
PART V
BARRISTERS AND SOLICITORS
69. Existing practitioners 70. Admission of Barrister and Solicitor 71. Enrolment of Barristers and Solicitors 72. Barristers practising as solicitors 73. Queen’s Counsel 74. Solicitors and Commissioners for Oaths are officers of the Court 75. Barristers and Solicitors may be suspended or struck off roll 76. Unauthorised persons drawing legal documents 77. Law relating to solicitors, taxation and recovery of costs
PART VI
WITNESSES
78. Disobedience of subpoena
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79. Witness expenses in criminal proceedings 80. Persons present at proceedings in Court may be ordered to give evidence
PART VII
MISCELLANEOUS
81. Sittings of the Courts 82. Interlocutory applications 83. Expenses in criminal proceedings 84. Remission or reduction of fines 85. Rules of Court 86. Saving of procedure
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CHAPTER 2.01
SUPREME COURT ACT
(Acts 1 of 1968, 21 of 1968, 2 of 1969, 23 of 1975, 15 of 1981, 21 of 1982, 8 of 1999 and 14 of 2000)
AN ACT TO REPEAL AND REPLACE THE SUPREME COURT ACT, AND TO CONFER JURISDICTION UPON THE EASTERN CARIBBEAN SUPREME COURT AND FOR OTHER MATTERS CONNECTED THEREWITH.
Commencement
[1 March 1968]
Preliminary
Short title 1. This Act may be cited as the Supreme Court Act.* (Amended by Act 8
of 1999)
Interpretation 2. In this Act, unless the context otherwise requires, the following
expressions have the meanings hereby assigned to them respectively, that is to say— “action” means a civil proceeding commenced by writ or in such other
manner as may be prescribed by rules of Court, but does not include a criminal proceeding; (Amended by Act 21 of 1982)
“cause” includes any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding; (Amended by Act 21 of 1982)
“Chief Justice” means the Chief Justice of the Eastern Caribbean Supreme Court;
“Chief Registrar” means the Chief Registrar of the Eastern Caribbean Supreme Court constituted under the Supreme Court Order;
“Court” or “Supreme Court” means the Eastern Caribbean Supreme Court established by the Supreme Court Order;
“Court of Appeal” means the Court of Appeal constituted under the Supreme Court Order;
* Originally entitled “West Indies Associated States Supreme Court (Montserrat) Act,
1968”.
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“defendant” includes any person served with any writ of summons or process, or served with notice of, or entitled to attend any proceedings;
“former British Caribbean Court of Appeal” means the British Caribbean Court of Appeal in existence immediately before the prescribed date;
“former Court of Appeal” means the Court of Appeal of the Windward Islands and Leeward Islands in existence immediately before the prescribed date;
“former Supreme Court” means the Supreme Court of the Windward Islands and Leeward Islands in existence immediately before the prescribed date;
“High Court” means the High Court of Justice established by the Supreme Court Order;
“judgment” includes decree; “Justice of Appeal” means a Judge of the Court of Appeal other than the
Chief Justice; “Master” means a Master of the Supreme Court; (Inserted by Act 14 of 2000) “matrimonial Cause” means any action for divorce, nullity of marriage,
judicial separation, jactitation of marriage or restitution of conjugal rights;
“matter” includes every proceeding in court not in a cause; “order” includes decision and rule; “party” includes every person served with notice of or attending any
proceeding, although not named on the record; “petitioner” includes every person making an application to the court,
either by petition, motion or summons, otherwise than as against any defendant;
“plaintiff” includes a claimant and every person asking any relief (otherwise than by way of counter-claim as a defendant) against any other person by any form of proceeding, whether the proceeding is by action, suit, petition, motion, summons or otherwise; (Amended by Act 14 of 2000)
“pleading” includes any petition or summons, and also includes the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any counter-claim of a defendant;
“prescribed date” means the date prescribed by the Chief Justice under subsection (2) of section 1 of the Supreme Court Order, namely, the 24th day of April, 1967;
“proceeding” includes action, cause or matter; “Puisne Judge” means a Judge of the High Court, other than the Chief
Justice;
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“Registrar” means the Registrar of the High Court; “rules of court” includes forms; “solicitor” means solicitor of the Supreme Court; “suit” includes action; “Supreme Court Order” means the West Indies Associated States
Supreme Court Order 1967 (S.I. 223/1967 U.K.); “verdict” includes the findings of a jury and the decision of the Judge.
Reference to Supreme Court to be deemed a reference to the High Court
3. (1) Where in any Act or Ordinance or other law in force prior to the prescribed date reference is made to the Supreme Court in the exercise of its jurisdiction and powers, or to a Judge of the Supreme Court, that reference shall be deemed to be a reference to the High Court or to a Judge of the High Court as the case may be.
(2) Where in any Act or Ordinance or other law in force prior to the prescribed date reference is made to the Court of Appeal that reference shall, unless the context otherwise requires, be deemed to be a reference to the Court of Appeal constituted under the Supreme Court Order.
(3) Where in any Act or Ordinance or other law in force prior to the prescribed date reference is made to the British Caribbean Court of Appeal that reference shall, unless the context otherwise requires, be deemed to be a reference to the Court of Appeal.
(4) Any act done or proceedings taken in respect of any cause or matter whatsoever in the former Supreme Court or before a Judge thereof prior to the prescribed date shall have effect after the prescribed date as if it had been done or taken in the High Court or before a Judge thereof.
How Supreme Court Judges are to be addressed
4. All Judges of the Supreme Court shall be addressed in the manner customary in addressing the Judges of the former Supreme Court immediately before the prescribed date.
Constitution of the Court
5. Subject to the provisions of subsection (3) of section 17 of the Supreme Court Order and of Rules of Court the Court of Appeal and the High Court for the exercise of the jurisdiction conferred upon them respectively shall be constituted in such manner as the Chief Justice may direct.
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PART I
THE HIGH COURT
Jurisdiction of former Supreme Court vested in High Court 6. (1) There shall be vested in the High Court all jurisdiction which
was vested in the former Supreme Court by the Supreme Court Act or by any law of the Legislature of Montserrat or any other law for the time being in force in Montserrat and such jurisdiction shall include—
(i) the jurisdiction which was vested in or capable of being exercised by all or any one or more of the Judges of the former Supreme Court sitting in Court or Chambers or elsewhere when acting as Judges or a Judge pursuant to any Order in Council, Act, Ordinance or any other law for the time being in force in Montserrat;
(ii) all the powers given to the former Supreme Court or to any Judge or Judges thereof by any Act, Ordinance or any other law for the time being in force in Montserrat;
(iii) all ministerial powers, duties and authorities incidental to any and every part of that jurisdiction.
Jurisdiction of High Court 7. (1) The High Court shall have and exercise within Montserrat all
such jurisdiction (save and except the jurisdiction in Admiralty) and the same powers and authorities incidental to such jurisdiction as on the first day of January, 1940 were vested in the High Court of Justice in England. (Amended by Act 21 of 1982)
(2) There shall be vested in the High Court all such jurisdiction as is in England exercised by the Lord Chancellor or other officer or officers nominated by him and having judicial authority in the Court of Protection, all such functions as are expressed to be conferred and exercisable by the Lord Chancellor or any such nominated Judge or Judges, for the protection and management, of the property of persons under disability. (Substituted by Act 21 of 1968)
(3) Masters shall exercise the authority and jurisdiction of a Judge of the High Court sitting in Chambers and such other authority and jurisdiction as may from time to time be assigned by Rules of Court made under section 17 of the Courts Order. (Inserted by Act 14 of 2000)
(4)Where a Master has and exercises jurisdiction in relation to any matter, the Master shall have all the powers, rights, immunities and privileges of a Judge in relation to such matters. (Inserted by Act 14 of 2000)

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Jurisdiction of High Court in Admiralty 8. The High Court is hereby declared, in pursuance of the Colonial
Courts of Admiralty Act, 1890, (Imperial) to be a Colonial Court of Admiralty within the meaning of that Act. (Amended by Act 21 of 1968)
Practice in Bankruptcy 9. The jurisdiction of the High Court in Bankruptcy shall be exercised
in accordance with the provisions of the Bankruptcy Act and any rules made thereunder.
Practice in criminal proceedings 10. The jurisdiction of the High Court in all criminal proceedings shall
be exercised in accordance with the Criminal Procedure Code and any other law in force in Montserrat.
Practice in Civil Proceedings and in Probate, Divorce and Matrimonial Causes
11. The jurisdiction vested in the High Court in civil proceedings, and in Probate, Divorce and Matrimonial causes, shall be exercised in accordance with the provisions of this Act and any other law in operation in Montserrat and rules of court, and where no special provision is therein contained such jurisdiction shall be exercised as nearly as may be in conformity with the law and practice administrated for the time being in the High Court of Justice in England.
Jurisdiction of single Judge 12. Any Judge of the High Court may in accordance with rules of court,
or so far as such rules shall not provide, in accordance with the practice and procedure which shall for the time being be in force in the High Court of Justice in England, exercise, in Court or in Chambers, all or any of the jurisdiction vested in the High Court.
Law and equity to be concurrently administered 13. Subject to the express provisions of any other law, in every civil
cause or matter commenced in the High Court, law and equity shall be administered by the High Court and the Court of Appeal, as the case may be, according to the provisions of the seven sections next following.
Equities of the plaintiff 14. If a plaintiff or petitioner claims to be entitled to any equitable estate
or rights or to relief on any equitable ground against any deed, instrument or contract or against any rights, title or claim whatsoever asserted by any defendant or respondent in the cause or matter, or to any relief founded upon a legal right which before the 1st day of November, 1875 could in
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England only have been given by a court of equity, the court or Judge shall give to the plaintiff or petitioner the same relief as would be given by the High Court of Justice in England in a suit or proceeding for the same or a like purpose.
Equitable defences 15. If a defendant claims to be entitled to any equitable estate or right, or
to relief upon any equitable ground against any deed, instrument or contract or against any right, title or claim asserted by any plaintiff or petitioner, in the cause or matter or alleges any ground of equitable defence to any such claim of the plaintiff or petitioner, the court or Judge shall give to every equitable estate, right or ground of relief so claimed, and to every equitable defence such and the same effect by way of defence against the claim of the plaintiff or petitioner as the High Court of Justice in England would give if the like matters had been relied on by way of defence in any suit or proceeding instituted in that court for the like purpose.
Counterclaim and third parties 16. (1) The court or Judge shall have power to grant to any defendant in
respect of any equitable estate or right or other matter or equity and also in respect of any legal estate, right or title claimed or asserted by him—
(a) all such relief against any plaintiff or petitioner as the defendant has property claimed by his pleading, and as the court or Judge might have granted in any suit instituted for that purpose by that defendant against the same plaintiff or petitioner; and
(b) all such relief relating to or connected with the original subject of the cause or matter, claimed in like manner against any other person, whether already a party to the cause or matter or not, who has been duly served with notice in writing of the claim pursuant to rules of court or any order of the court, as might properly have been granted against that person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose.
(2) Every person served with any such notice as aforesaid shall thenceforth be deemed a party to the cause or matter with the same rights in respect of his defence against the claim as if he had been duly sued in the ordinary way by the defendant.
Equities appearing incidentally 17. The court or Judge shall take notice of all equitable estates, titles and
rights and all equitable duties and liabilities appearing incidentally in the course of any cause or matter in the same manner in which the High Court of Justice in England would recognise and take notice of the same in any suit or proceeding duly instituted therein.
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Defence or stay instead of injunction or prohibition 18. No cause or proceeding at any time pending in the High Court or in
the Court of Appeal shall be restrained by prohibition or injunction but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might formerly have been obtained whether unconditionally or on any terms or conditions, may be relied on by way of defence thereto:
Provided that— (a) nothing in this Act shall disable the High Court or the Court
of Appeal, if it thinks fit so to do, from directing a stay of proceedings in any cause or matter pending before it; and
(b) any person, whether a party or not to any such cause or matter who would formerly have been entitled to apply to any Court to restrain the prosecution thereof, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, in contravention of which all or any part of the proceedings in the cause or matter have been taken, may apply to the High Court or to the Court of Appeal, as the case may be, by motion in a summary way, for a stay of proceedings in the cause or matter, either generally, or so far as may be necessary for the purposes of justice, and the court shall thereupon make such order as shall be just.
Common law and statutory rights and duties 19. Subject to the provisions of this Act for giving effect to equitable
rights and other matters of equity, the High Court and the Court of Appeal and each Judge thereof shall recognise and give effect to all legal claims and demands, and all estates, titles, rights, duties, obligations and liabilities existing by the common law or by any custom, or created by any statute, in the same manner as these matters have hitherto been recognised and given effect to.
Determination of matters completely and finally 20. The High Court and the Court of Appeal respectively in the exercise
of the jurisdiction vested in them by this Act shall in every cause or matter pending before the court grant either absolutely or on such terms and conditions as the court think just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of these matters avoided.
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Rules of equity to prevail 21. In all matters in which there was formerly or is any conflict or
variance between the rules of equity and the rules of common law with reference to the same matter the rules of equity shall prevail.
Declaratory order 22. No action shall be open to objection on the ground that a merely
declaratory decree or order is sought.
Mode of trial 23. (1) Subject as hereinafter provided, any action to be tried before the
High Court, may in the discretion of the court or a Judge, be ordered to be tried with or without a jury:
Provided that the mode of trial shall be by a Judge without a jury unless upon the application of any party to the action, a trial with a jury is ordered.
(2) Any party to the action may within ten days after the action has been set down for trial apply to have the action tried with a jury, and if the court or a Judge is satisfied that—
(a) a charge of fraud against the party; or (b) a claim in respect of libel, slander, malicious prosecution,
false imprisonment, seduction or breach of promise of marriage,
is in issue, the action shall be ordered to be tried with a jury unless the court or a Judge is of opinion that the trial thereof requires any prolonged examination of documents or accounts or any specific or local investigation which cannot conveniently be made with a jury; but, save as aforesaid the granting of a jury shall in every case be discretionary.
(3) The provisions of this section shall be without prejudice to the power of the High Court or a Judge to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial, and where any such order is made the provisions of this section requiring trial with a jury in certain cases shall have effect only as respects questions relating to any such charges or claim as aforesaid.
Granting of mandamus, etc. 24. (1) A mandamus or an injunction may be granted or a receiver
appointed by an interlocutory order of the High Court or of a Judge thereof in all cases in which it appears to the court or Judge to be just or convenient that the order should be made and any such order may be made either unconditionally or upon such terms and conditions as the court or Judge thinks just.
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(2) If an injunction is prayed for, either before, at, or after the hearing of a cause or matter to prevent a threatened or apprehended waste or trespass, the injunction may be granted if the High Court or a Judge of the High Court thinks fit—
(a) whether the person against whom the injunction is sought— (i) is or is not in possession under a claim or title or
otherwise; or (ii) if out of possession, does or does not claim under any
colour of title a right to do the act sought to be restrained; and
(b) whether the estates claimed by both or by either of the parties are legal or equitable.
Execution of instruments by order of Court 25. Where any person neglects or refuses to comply with a judgment or
order directing him to execute any conveyance, contract or other documents, or to endorse any negotiable instrument, the High Court may on such terms and conditions, if any, as may be just, order that the conveyance, contract or other documents shall be executed or that the negotiable instrument shall be endorsed by such person as the High Court may nominate for that purpose and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the persons originally directed to execute or endorse it. (Amended by Act 21 of 1968)
Restrictions on institution of vexatious actions 26. (1) If, on an application made by the Attorney General under this
section to the High Court, the High Court is satisfied that any person has habitually and persistently and without reasonable ground instituted vexatious legal proceedings, whether in the Court of Appeal, the High Court or in the Magistrate’s Court, and whether against the same person or against different persons, the High Court may, after hearing the person or giving him an opportunity of being heard, order that no legal proceedings shall without leave of the High Court or a Judge thereof be instituted by him in any court and such leave shall not be given unless the High Court is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings. (Amended by Act 21 of 1982)
(2) If the person against whom an order is sought under this section is unable on account of poverty to retain counsel, the High Court shall assign counsel to him.
(3) A copy of any order under this section shall be published in the Gazette.
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PART II
COMMISSIONERS OF THE HIGH COURT
Appointment of Commissioners 27. (1) For the prevention of delay in the administration of justice, the
Governor after consultation with the Chief Justice may, by a Commission under his hand and the Public Seal of Montserrat, appoint a fit and proper person to be a Commissioner of the High Court in Montserrat for the trial and determination, in the absence of a Judge from Montserrat, of such causes and matters mentioned in subsection (3) as may be specified in such Commission.
Cancellation of appointment (2) Any appointment made under this section may at any time be
cancelled by the Governor by notice published in the Gazette.
Powers of Commissioners (3) Subject to any limitations contained in his Commission of
Appointment, a Commissioner may, in the absence of a Judge from Montserrat—
(a) administer oaths and take affidavits, declarations and affirmations;
(b) admit to bail after committal in cases of felony and misdemeanour;
(c) take the examination of witnesses or the production of documents in any civil proceeding when authorised in that behalf by any special order of the Court or a Judge.
(Amended by Act 21 of 1968)
Incidental powers (4) A Commissioner when and so far as necessary for performing
any duty which he is authorised to perform shall be deemed to have and may exercise the incidental powers of a Judge.
Protection of Commissioner (5) No action shall be brought against a Commissioner in respect of
any act or order bona fide done or made by him in the execution or supposed execution of the jurisdiction and powers vested in him, but every such act or order shall be liable to be altered, amended, reversed or set aside upon summary application to a Judge in accordance with rules of Court.
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PART III
THE COURT OF APPEAL
Jurisdiction of Court of Appeal
Jurisdiction vested in Court of Appeal 28. Subject to the provisions of this Act, there shall be vested in the
Court of Appeal— (a) the jurisdiction and powers which at the prescribed date were
vested in the former Court of Appeal; (b) the jurisdiction and powers which at the prescribed date were
vested in the British Caribbean Court of Appeal; (c) such other jurisdiction and powers as may be conferred upon
it by this Act, or any other law.
Practice and procedure in the Court of Appeal 29. The jurisdiction of the Court of Appeal so far as it concerns practice
and procedure in relation to appeals from the High Court shall be exercised in accordance with the provisions of this Act and rules of court and where no special provisions are contained in this Act or rules of court such jurisdiction so far as concerns practice and procedure in relation to appeals from the High Court shall be exercised as nearly as may be in conformity with the law and practice for the time being in force in England—
(a) in relation to criminal matters, in the Court of Appeal (Criminal Division);
(b) in relation to civil matters in the Court of Appeal (Civil Division).
Appeals from Magistrate’s Courts 30. (1) Subject to the provisions of the Magistrate’s Court Act, the
Criminal Procedure Code and to rules of Court, an appeal shall lie to the Court of Appeal from any judgment, decree, sentence or order of a magistrate in all proceedings.
(2) The time within which notice of appeal may be given or any bond or security entered into or grounds of appeal filed in relation to appeals under this section may be extended at any time by the Court of Appeal. (Amended by Act 21 of 1968)
(3) On the hearing of an appeal under this section, the provisions of sections 33, 34, 35(1), 35(2), 36, 43 and 44 of this Act shall apply. (Inserted by Act 2 of 1969)
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Civil Appeals of High Court
Appeals from High Court in Civil Matters 31. (1) Subject to the provisions of this Act or any other enactment—
(a) the Court of Appeal shall have jurisdiction to hear and determine any matter arising in any civil proceedings upon a case stated or upon a question of law reserved by the High Court or by a Judge thereof pursuant to any power conferred in that behalf by a law in operation in Montserrat;
(b) an appeal shall lie to the Court of Appeal, and the Court of Appeal shall have jurisdiction to hear and determine the appeal, from any judgment or order of the High Court and for the purposes of and incidental to the hearing and determination of any appeal and the amendment, execution and enforcement of any judgment or order made thereon, the Court of Appeal shall have all the powers, authority and jurisdiction of the High Court.
(2) No appeal shall lie under this section— (a) from any order made in any criminal cause or matter; (b) from an order allowing an extension of time for appealing
from a judgment or order; (c) from an order of a Judge giving unconditional leave to
defend an action; (d) from a decision of the High Court or of any Judge thereof
where it is provided by any law that such decision is to be final;
(e) from an order absolute for the dissolution or nullity of a marriage in favour of any party who having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree, except upon some point which would not have been available to such party on such appeal;
(f) without the leave of the Judge making the order or of the Court of Appeal from an order made with the consent of the parties or as to costs where such costs by law are left to the discretion of the court;
(g) without the leave of the Judge or of the Court of Appeal from any interlocutory judgment or any interlocutory order given or made by a Judge except—
(i) where the liberty of the subject or the custody of infants is concerned;
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(ii) where an injunction or the appointment of a receiver is granted or refused;
(iii) in the case of a decree nisi in a matrimonial cause or a judgment of order in an admiralty action determining liability;
(iv) in such other cases to be prescribed, as are in the opinion of the authority having power to make rules of court of the nature of final decisions.
(3) For the purposes of subsection (2) “Judge” means a Judge of the High Court and, where the context admits, includes a Master. (Amended by Act 14 of 2000)
Jurisdiction in civil appeal 32. Where an appeal has been brought under the provisions of the
foregoing section and is pending in the Court of Appeal a Judge of the High Court may hear and determine such applications incidental to the appeal and not involving the decision thereof as may be prescribed by rules of court; but an order made on any such application may be discharged or varied by the Court of Appeal. (Inserted by Act 21 of 1968)
Powers of Court of Appeal on hearing an appeal 33. (1) On the hearing of an appeal from any order of the High Court in
any civil cause or matter, the Court of Appeal shall have power to— (a) confirm, vary, amend or set aside the order or make such
order as the High Court might have made, or to make any order which ought to have been made, and to make such further or other order as the nature of the case may require;
(b) draw inferences of fact; (c) direct the High Court to enquire into and certify its findings
on any questions which the Court of Appeal thinks fit to be determined before final judgment in the appeal.
(2) The powers of the Court of Appeal under this section may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the High Court by any particular party to the proceedings in court or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such notice; and the Court of Appeal may make any order in such terms as the Court of Appeal thinks just to ensure the determination on the merits of the real question in controversy between the parties.
(3) The powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal.
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(4) The Court of Appeal may make such order as to the whole or any part of the costs of an appeal as may be just, and may in special circumstances, order that such security shall be given for the costs of an appeal as may be just.
Supplementary powers of Court of Appeal 34. For the purposes of an appeal in any civil cause or matter, the Court
of Appeal may, if it thinks it necessary or expedient in the interests of justice—
(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;
(b) order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court of Appeal, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in manner provided by rules of court before any Judge of the Court of Appeal or before any officer of the Court of Appeal or other person appointed by the court for the purpose, and allow the admission of any deposition so taken as evidence before the court;
(c) receive the evidence, if tendered, of any witness including the appellant who is a competent but not a compellable witness and, if application is made for the purpose of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such application:
(d) where any question arising in the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot, in the opinion of the court, conveniently be conducted before the Court of Appeal, order the reference of the question in manner provided by rules of court for inquiry and report to a special commissioner appointed by the court, and act upon the report of any such commission as far as it thinks fit to adopt it; and
(e) appoint any person with special expert knowledge to act as assessor in an advisory capacity to the court in any case where it appears to the court that such special knowledge is required for the proper determination of the case.
Power of Court of Appeal as to new trials 35. (1) Subject to the provisions of this section on the hearing of an
appeal in any civil cause or matter the Court of Appeal shall, if it appears to the court that a new trial should be held, have power to set aside the order appealed against and order that a new trial be held.
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(2) On the hearing of an appeal in any civil cause or matter, the following provisions shall apply—
(a) A new trial shall not be ordered on the ground of misdirection, or of the improper admission or rejection of evidence unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned.
(b) A new trial may be ordered on any question without interfering with the finding or decision upon any other question; and if it appears to the Court of Appeal that any such wrong or miscarriage as is mentioned in subparagraph (a) of this paragraph affects part only of the matter in controversy or one or some only of the parties, the court may order a new trial as to that part only, or as to that party or those parties only, and give final judgment as to the remainder.
(3) On the hearing of an appeal from an order made in any action tried with a jury the following provisions shall apply—
(a) The Court of Appeal may, if it thinks fit, make any such order as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the court below.
(b) A new trial shall not be ordered because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to them unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned.
(c) In any case where the court has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate, the court may, in lieu of ordering a new trial—
(i) with the consent of all parties concerned, substitute for the sum awarded by the jury such sum as appears to the court to be proper;
(ii) with the consent of the party entitled to receive or liable to pay the damages, as the case may be, reduce or increase the sum awarded by the jury by such amount as appears to the court to be proper in respect of any distinct head of damages erroneously included in or excluded from the sum so awarded; but except as aforesaid the court of Appeal shall not have power to reduce or increase damages awarded by a jury.
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Wrong rulings as to sufficiency of stamps 36. The Court of Appeal shall not grant a new trial or reverse any
judgment by reason of the ruling of any court that the stamp upon any document is sufficient or that the document does not require a stamp.
Criminal Appeals from High Court
Criminal Appeals from High Court 37. (1) In sections 37 to 59 of this Act unless the context otherwise
requires— “appeal” means an appeal by a person convicted upon indictment; “appellant” includes a person who has been convicted and desires to
appeal under this Part of this Act; “sentence” includes any order of the court made on conviction or in
relation to the person convicted or his wife or children and any recommendation of the convicting court as to the making of a deportation order in the case of a person convicted, and “the power of the Court of Appeal to pass a sentence” includes a power to make any such order or recommendation as the convicting court might have made and a recommendation so made by the Court of Appeal shall have the same effect for the purposes of any law under which such recommendation is permitted to be made, as the certificate and recommendation of the convicting court.
(2) In this section and in sections 38, 39, 47, 49, 53(2), 54(1), 56(1), 58 and 59 references to a person being convicted shall include, references to his being the subject of a special verdict under section 156 of the Criminal Procedure Code.
Right of appeal in criminal cases 38. A person convicted on indictment may appeal under this Act to the
Court of Appeal— (a) against his conviction on any ground of appeal which
involves a question of law alone; and (b) with the leave of the Court of Appeal or upon the certificate
of the Judge who tried him that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and
(c) with the leave of the Court of Appeal against the sentence passed on his conviction, unless the sentence is one fixed by law.
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Determination of appeals in certain cases 39. (1) The Court of Appeal on any such appeal against conviction shall
subject as hereinafter provided allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unsafe or unsatisfactory or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that there was a material irregularity in the course of the trial and in any other case shall dismiss the appeal:
Provided that the court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no miscarriage of justice has actually occurred.
(2) Subject to the provisions of this Act the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction, and direct a judgment and verdict of acquittal to be entered, or, if the interests of justice so require, order a new trial.
(3) On an appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict whether more or less severe, in substitution therefor as it thinks ought to have been passed, and in any other case shall dismiss the appeal. (Inserted by Act 21 of 1968)
(4) Where apart from this subsection– (a) an appeal against a special verdict under section 156 of the
Criminal Procedure Code would fall to be allowed; and (b) none of the grounds for allowing it relates to the question of
the insanity of the accused, the Court of Appeal may dismiss the appeal if of opinion that but for the insanity of the accused the proper verdict would have been that he was guilty of an offence other than the offence charged.
(5) (i) An appellant who is to be retried for an offence in pursuance of an order under this section shall be tried upon a fresh indictment preferred by the direction of the Court of Appeal.
(ii) The Court of Appeal may, upon ordering a retrial, make such orders as appear to the court to be necessary or expedient for the custody or admission to bail of the appellant pending the retrial, or for the retention pending the retrial of any property, or money forfeited, restored or paid by virtue of the original conviction or any order made on that conviction.
(iii) On a retrial ordered under this section, section 134 of the Criminal Procedure Code (reading of depositions) shall
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not apply to the depositions of any person who gave evidence at the original trial, but a transcript of the shorthand notes or where there are no shorthand notes, of the Judge’s notes, of the evidence given by any witness at the original trial may, with the leave of the Judge, be read as evidence— (a) by agreement between the prosecution and the
defence; or (b) if the Judge is satisfied that the witness is dead or
unfit to give evidence or to attend for that purpose, or is absent from Montserrat, or that all reasonable efforts to find him or to secure his attendance have been made without success;
and in either case may be so read without further proof if verified in accordance with rules of Court.
Powers of Court in special cases 40. (1) If it appears to the Court of Appeal that an appellant though not
properly convicted on some count or part of the indictment, has been properly convicted on some other count or part of the indictment, the Court of Appeal may either affirm the sentence passed on the appellant at the trial, or pass such sentence in substitution therefor as it thinks proper as may be warranted in law by the verdict on the count or part of the indictment on which the Court of Appeal considers that the appellant has been properly convicted.
(2) Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.
(3) Where on the conviction of the appellant the jury have found a special verdict, and the Court of Appeal considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Court of Appeal may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court of Appeal to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.
(4) Where on any appeal it appears to the Court of Appeal that the proper verdict would have been a special verdict under section 156 of the Criminal Procedure Code the Court may quash the sentence passed at the
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trial and order the appellant to be kept in custody as a prisoner of unsound mind under the provisions of the said Act in the same manner as if a special verdict had been found by the jury under that Act.
Supplementary provisions where appeal against special verdict allowed 41. (1) Where in accordance with subsection (1) of section 39 an appeal
against a special verdict under section 156 of the Criminal Procedure Code is allowed—
(a) if the ground, or one of the grounds for allowing the appeal is that the finding of the jury as to the insanity of the accused ought not to stand and the Court of Appeal is of opinion that the proper verdict would have been that he was guilty of an offence (whether the offence charged or any other offence of which the jury could have found him guilty), the court shall substitute for the special verdict a verdict of guilty of that offence, and shall have the like powers of punishing or otherwise dealing with the accused and other powers as the court before which he was tried would have had if the jury had come to the substituted verdict;
(b) in any other case, the Court of Appeal shall substitute for the verdict of the jury a verdict of acquittal:
Provided that where the offence mentioned in paragraph (a) is one for which the sentence is fixed by law, the sentence shall (whatever the circumstances) be one of imprisonment for life.
(2) The term of any sentence passed by the Court of Appeal in the exercise of the powers conferred by subsection (1)(a) of this section shall, unless the Court otherwise directs, begin to run from the time it would have begun to run if passed in the proceedings in the Court before which the accused was tried.
Re-vesting and restitution of property on conviction 42. (1) The operation of any order for the restitution of any property to
any person made on a conviction on indictment and the operation in case of any such conviction of the provisions of section 234 of the Penal Code as to the restitution of the property in goods to the owner thereof, shall, unless the court before whom the conviction takes place, directs to the contrary in any case in which in its opinion, the title to the property is not in dispute, be suspended—
(a) in any case until the expiration of fourteen days after the date of conviction; and
(b) in cases where notice of appeal of leave to appeal is given within fourteen days after the date of conviction, until the determination of the appeal;
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and in cases where the operation of any such order, or the operation of the said provisions, is suspended until the determination of the appeal, the order or provisions, as the case may be, shall not take effect as to the property in question if the conviction is quashed on appeal.
(2) Provision may be made by rules of court for securing the safe custody of any property pending the suspension of the operation of any such order or of the said provisions.
(3) The Court of Appeal may by order annul or vary any order made on a trial for the restitution of any property to any person, although the conviction is not quashed; and the order if annulled shall not take effect, and, if varied, shall take effect as so varied.
Supplementary powers of Court of Appeal 43. For the purposes of an appeal in any criminal cause or matter the
Court of Appeal may, if it thinks it necessary or expedient in the interests of justice—
(a) exercise any or all the powers conferred by section 34 on the Court of Appeal;
(b) issue any warrant necessary for enforcing any order or sentence of the Court of Appeal: Provided that— (i) in no case shall any sentence be increased by reason of or
in consideration of any evidence that was not given at the trial; and
(ii) whenever the Court of Appeal receives further evidence it shall make such order as will secure an opportunity to the parties to the proceedings to examine every witness whose evidence is taken.
Duty to admit fresh evidence 44. Without prejudice to the generality of section 43 of this Act
(supplementary powers), where evidence is tendered to the Court of Appeal under that section, the court shall, unless it is satisfied that the evidence if received would not afford any ground for allowing the appeal, exercise its power under that section of receiving it if—
(a) it appears to it that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal; and
(b) it is satisfied that it was not adduced at the trial, but that there is a reasonable explanation for the failure so to adduce it.
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Admission of appellant to bail and custody when attending Court 45. (1) An appellant who is not admitted to bail shall, pending the
determination of his appeal, be treated in like manner as prisoners awaiting trial.
(2) The Court of Appeal may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.
Computation of sentence 46. (1) The time during which an appellant is in custody pending the
determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject, but the court shall not give any such direction where leave to appeal has been granted or a certificate has been given under section 38 of this Act or where the case has been referred to it under section 58 of this Act.
(2) Where the Court of Appeal gives a direction under this section, it shall state its reasons for giving the direction.
(3) Provision shall be made by prison rules for the manner in which an appellant, when in custody, is to be brought to any place at which he is entitled to be present for the purposes of this Act, or to any place to which the Court of Appeal or any Judge thereof may order him to be taken for the purposes of any proceedings of that court, and for the manner in which he is to be kept in custody while absent from prison for such purpose; and an appellant whilst in custody in accordance with those rules shall be deemed to be in legal custody.
Time for appealing 47. (1) Where a person convicted desires to appeal under this Act to the
Court of Appeal or to obtain the leave of the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within fourteen days of the date of conviction.
(2) Except in the case of a conviction involving sentence of death, the time within which notice of an application for leave to appeal may be given, may be extended at any time by the Court of Appeal.
(3) For the purposes of this section the date of conviction shall, where the Court has adjourned the trial of an indictment after conviction, be the date on which the court sentences or otherwise deals with the offender.
Stay of execution 48. In the case of a conviction involving sentence of death or corporal
punishment—
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(a) the sentence shall not in any case be executed until the expiration of the time within which notice of appeal or of an application for leave may be given under the preceding section; and
(b) if notice is so given, the appeal or application shall be heard and determined with as much expedition as practicable, and the sentence shall not be executed until after the determination of the appeal, or, in cases where an application for leave to appeal is finally refused, of the application.
Judge’s notes and report to be furnished on appeal 49. The Judge before whom a person is convicted shall, in the case of an
appeal under this Act against the conviction or against the sentence or in the case of an application for leave to appeal under this Act furnish to the Registrar in accordance with rules of court, his notes of the trial; and shall also furnish to the Registrar in accordance with rules of court a report giving his opinion upon the case or upon any point arising in the case.
Legal assistance to appellant 50. The Court of Appeal may at any time assign to an appellant a
solicitor and counsel, or counsel only, in any appeal or proceedings preliminary or incidental to an appeal in which, in the opinion of the court, it appears desirable in the interests of justice that the appellant should have legal aid, and that he has not sufficient means to enable him to obtain that aid.
Right of appellant to be present 51. (1) An appellant, notwithstanding that he is in custody, shall be
entitled to be present, if he desires it, on the hearing of his appeal, except where the appeal is on some ground involving a question of law alone, but, in that case and on an application for leave to appeal and on any proceedings preliminary or incidental to an appeal, shall not be entitled to be present except where rules of court provide that he shall have the right to be present or where the court gives him leave to be present.
(2) An appellant who does not, appear at the hearing of his appeal by counsel, may present his case and argument in writing, and any case or argument so presented shall be considered by the court.
(3) The power of the court to pass any sentence under this Act may be exercised notwithstanding that the appellant is for any reason not present.
(4) The reference in subsection (1) of this section to an appellant being in custody shall not include a reference to his being in custody in consequence of a special verdict under section 156 of the Criminal Procedure Code.
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Costs of appeal 52. (1) On the hearing and determination of a criminal appeal from the
High Court or any proceedings preliminary or incidental thereto under this Act no costs shall be allowed on either side.
(2) The expenses of a solicitor or counsel assigned to an appellant under this Act, and the expenses of any witnesses attending on the order of the Court of Appeal or examined in any proceedings incidental to the appeal, and of the appearance of an appellant on the hearing of his appeal or on any proceedings preliminary or incidental to the appeal, and all expenses of an incidental to any examination of witnesses conducted by any person appointed by the court for the purpose, or any reference of a question to a special commissioner appointed by the court, or of any person appointed as assessor to the court, shall be defrayed out of monies up to an amount allowed by the court, but subject to any rules of court as to rates and scales of payment.
Duties of Registrar with respect to notices of appeal, etc. 53. (1) The Registrar shall take all necessary steps for obtaining a
hearing under this Act of any appeals or applications, notice of which is given to him under this Act, and shall obtain and lay before the Court of Appeal in proper form all documents, exhibits, and other things relating to the proceedings in the court before which the appellant or applicant was tried, which appear necessary for the proper determination of the appeal or application.
(2) If it appears to the Registrar that any notice of an appeal against a conviction, purporting to be on a ground of appeal which involves a question of law alone, does not show any substantial ground of appeal, the Registrar may refer the appeal to the Court of Appeal for summary determination, and where the case is so referred, the Court of Appeal may, if it considers that the appeal is frivolous or vexatious, and can be determined without adjourning the same for a full hearing, dismiss the appeal summarily, without calling on any persons to attend the hearing or to appear for the Crown thereon.
(3) Any documents, exhibits, or other things connected with the proceedings on the trial of any person on indictment, who, if convicted, is entitled or may be authorised to appeal under this Act shall be kept in the custody of the court of trial in accordance with rules of court made for the purpose, for such time as may be provided by the rules, and subject to such powers as may be given by the rules for the conditional re-release of any such documents, exhibits, or things from that custody.
(4) The Registrar shall furnish the necessary forms and instructions in relation to notices of appeal or notices of application under this Act to any person who demands the same, and to such officers or persons as he thinks fit, and the Superintendent of Prisons shall cause those forms and instructions to be placed at the disposal of prisoners desiring to appeal or to make any application under this Act, and shall cause any such notice given
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by a prisoner in his custody to be forwarded on behalf of the prisoner to the Registrar.
(5) The Registrar shall report to the Court of Appeal or some Judge thereof any case in which it appears to him that, although no application has been made for the purpose, a solicitor and counsel, or counsel only, ought to be assigned to an appellant under the powers given to that court by this Act.
(6) In this section and in the next following section the expression “Registrar” includes the Chief Registrar and Deputy Registrar of the Court of Appeal.
Shorthand notes, etc. 54. (1) Such records in such manner, whether in writing by shorthand
notes or otherwise, or by recordings in electromagnetic tape or by other means as may be prescribed by rules of Court shall be taken of the proceedings at the trial of any person on indictment who, if convicted, is entitled or may be authorised to appeal under this Act, and on any appeal or application for leave to appeal a transcript of the records or any part thereof shall be made if the Registrar so directs, and furnished to the Chief Registrar for the use of the Court of Appeal or any Judge thereof.
(2) A transcript of the records taken under subsection (1) of this section shall be furnished to any party interested upon payment of such charges as may be fixed by rules of court.
(3) Rules of court may also make such provision as is necessary for securing the accuracy of the records to be taken and for the verification of the transcript.
Powers which may be exercised by a Judge of the Court 55. The powers of the Court of Appeal under this Act—
(a) to give leave to appeal; (b) to extend the time within which notice of appeal or of an
application for leave to appeal may be given; (c) to assign legal aid to an appellant; (d) to allow the appellant to be present at any proceedings in
cases where he is not entitled to be present without leave; or (e) to admit an appellant to bail,
may be exercised by any Judge of the Court of Appeal in the same manner as they may be exercised by the Court of Appeal, and subject to the same provisions; but, if the Judge refuses an application on the part of the appellant to exercise any such powers in his favour, the appellant shall be entitled to have the application determined by the court as duly constituted for the hearing and determination of appeals under this Act.
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Case stated or questions of law reserved 56. (1) Where any person is convicted on indictment the trial Judge may
state a case or reserve a question of law for the consideration of the Court of Appeal and the Court of Appeal shall consider and determine such case stated or question of law reserved and may either—
(a) confirm the judgment given upon the indictment; (b) order that such judgment be set aside and quash the
conviction and direct a judgment and verdict of acquittal to be entered;
(c) order that such judgment be set aside, and give instead thereof the judgment which ought to have been given at the trial;
(d) require the Judge by whom such case has been stated or question has been reserved to amend such statement or question when specially entered on the record; or
(e) make such other order as justice requires. (2) The Court of Appeal, when a case is stated or a question of law
reserved for its opinion, shall have power, if it thinks fit, to cause the case or certificate to be sent back for amendment and thereupon the same shall be amended accordingly.
Provisions of this Act applicable to proceedings for case stated 57. Where a case is stated or question of law reserved for the
consideration of the Court of Appeal the provisions of sections 45, 46, 48, 50, 51, subsections (1), (3) and (5) of section 53 and sections 54 and 55 of this Act shall apply to such proceedings in like manner as to an appeal.
Prerogative of mercy 58. (1) Nothing in this Act shall affect the prerogative of mercy.
(2) The Governor on the consideration of any petition for the exercise of Her Majesty’s mercy having reference to the conviction of a person on indictment or to the sentence, other than sentence of death, passed on a person so convicted, may at any time—
(a) refer the whole case to the Court of Appeal, and the case shall then be heard and determined by the court as in the case of an appeal by a person convicted; or
(b) if he desires the assistance of the Court of Appeal on any point arising in the case with a view to the determination of the petition, refer that point to the court for its opinion thereon, and the court shall consider the point so referred and furnish the Governor with its opinion thereon accordingly.
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Appeals on information 59. This Act shall apply in the case of convictions on criminal
information as it applies in the case of conviction on indictment.
Appeals in Contempt Proceedings
Appeals from orders in contempt proceedings 60. (1) An appeal shall lie to the Court of Appeal from any order made
by the High Court or by a Judge of the High Court or of the Court of Appeal or by a Magistrate imposing imprisonment or a fine for contempt of court.
(2) Any person ordered by any such Court, Judge or Magistrate to be imprisoned or to pay a fine for contempt of Court, may at the time of such order or within two days thereafter give notice to the Court, Judge or Magistrate making the order of his intention to appeal to the Court of Appeal and may within two days after giving such notice enter into a recognizance with a surety to the satisfaction of the Registrar of the High Court or of the Court of Appeal or clerk of the Court, as the case may be, in a sum not exceeding $100 to prosecute such appeal, and the giving of such notice and entering into such recognizance shall operate as a stay of such order.
(3) On such person entering into recognizance the Judge or Magistrate making the order shall within twenty-one days thereafter transmit to the Registrar a statement of the cause of such committal or fine and upon such statement being received the Registrar shall within four days thereafter issue a summons, free of cost, calling on the appellant to appear before the Court of Appeal within a reasonable time thereafter and on a day to be named therein and the Court of Appeal shall hear and determine such appeal and either confirm the order or vary or quash such order and the Court of Appeal may from time to time return the proceedings to the Judge or Magistrate who made the order for further information.
(4) When the Court of Appeal confirms or varies the order the Judge or Magistrate who made the order shall proceed to carry out and enforce his order as confirmed or varied in the same manner as if there had been no appeal against the same.
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PART IV
OFFICERS OF THE COURT
Present officers of Court 61. Except as in this Act otherwise expressly provided, every person
who at the date of commencement of this Act holds the office of Registrar or Bailiff, shall continue to hold his office on the terms on which he now holds it, and nothing in this Act contained shall affect the validity and effect of any bond heretofore given by any of the said officers.
Registrar 62. (1) The Chief Registrar shall have and exercise in relation to
Montserrat such functions as may be conferred upon her or him by this Act or any other law or by rules of court.
(2) Without prejudice to the generality of the provisions of this section, the Chief Registrar shall take all necessary steps for obtaining a hearing under this Act of any appeals or applications, and shall obtain and lay before the Court of Appeal in proper form all documents, exhibits and other things relating to the proceedings in the court before which the case, or the appellant or applicant, was tried which appear necessary for the proper determination of the appeal or application.
(3) The Registrar shall have such power and authority and perform such duties as shall be necessary for the due conduct and discharge of the business of the High Court and the Court of Appeal as the Chief Justice or other Judge authorised by him in that behalf shall direct. He shall be subject to the general or special directions of the Chief Registrar and shall assist him in the performance of his duties.
(4) The Registrar shall be ex officio a Deputy Registrar of the Court of Appeal.
(5) The Registrar shall be ex officio Admiralty Marshal. (6) The Registrar shall be ex officio Provost Marshal. (7) The Registrar shall have custody of the seals of the High Court
and of the Court of Appeal (Montserrat sub-Registry) and of all records, documents and papers thereof.
Taxation of costs 63. (1) The Chief Registrar, and in her or his absence the Registrar, shall
be the Taxing Master for the court; and shall tax all bills of costs in accordance with the scales for the time being in force.
(2) Every taxation of costs shall be subject to rules of Court and be subject to review by a Judge in Chambers.
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Acting Registrar 64. Whenever the Registrar is on leave, or ill or otherwise unable to
perform the duties of his office, the Governor, acting after consultation with the Chief Justice, may appoint a fit and proper person to act, during pleasure, for such Registrar, and such person whilst so acting, shall have all the powers, and be charged with all the duties of the Registrar:
Provided that until any appointment is so made, and also on every occasion when the Registrar is from any cause absent from his office, the duties of the Registrar shall devolve upon and be performed by the Clerk next in seniority to the Registrar and officiating in the Registry who shall while so acting have all the powers of the Registrar.
Hours of business 65. (1) The office of the Registrar and Provost Marshall shall be kept
open for the transaction of business on every day of the year except Sundays, Christmas Day, Good Friday and Public Holidays, during such hours of the said days as may be appointed by the Governor by order under his hand.
(2) Notwithstanding the provisions of any order made under subsection (1) of this section the Judge, by whom any matter is being heard, may direct any paid officer of the Court to transact at any time any business which, in the opinion of the Judge is necessary or convenient, to facilitate the hearing and determination of the matter in question, or to carry into effect any order made in connection therewith.
Bailiffs 66. (1) There shall be at least one bailiff for the High Court: Provided that the Governor may sanction the appointment of an
additional bailiff, or of additional bailiffs. (2) Every bailiff shall be appointed by a Judge by a commission
under his hand and the seal of the High Court, and shall receive such salary as may be provided by the Legislature.
(3) Every bailiff shall be under the control of the Registrar and may, on cause shown, be dismissed from his office by a Judge.
(4) Every bailiff shall, in addition to his duties as bailiff also perform, if required, the duties of Crier of the High Court and of the Court of Appeal.
(5) Notwithstanding anything hereinbefore contained a Judge of the High Court, may by writing under his hand and the seal of the High Court, appoint a temporary bailiff to serve, or execute such process or processes, of the High Court as may be specified in the appointment.
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Registrar, clerks, and bailiffs not to advise litigants 67. No Registrar, clerk to a Registrar, or bailiff shall act as attorney,
agent or adviser of any plaintiff, defendant or other suitor, or party in or to any proceeding in any Court in the territory, or give advice in any law matter, or act as conveyancer, or notary public, or accept any gratuity for the performance of any duty in connection with his office.
Misconduct of officers of Court 68. (1) If any officer of the Court shall be charged with extortion, or
with not duly paying any money received by him in the execution of his duty, or with any fraud, wrongful act, or neglect in the discharge of duties of his office, any Judge of the High Court may—
(a) inquire into the matter in a summary way, on affidavit, or such other evidence as shall appear reasonable to him, and for that purpose, summon and enforce the attendance of all necessary parties and witnesses in like manner as the attendance of witnesses may be enforced in any other proceedings; and
(b) thereupon dismiss the charge, or order the officer to pay any monies or damages which in the opinion of the Judge, the officer ought under the circumstances to pay; and also impose such fine, if any, as he may think fit, on the officer.
(2) The costs of every such inquiry shall be in the discretion of the Judge, and may be ordered to be paid by the officer or by the person laying the charge.
(3) Every order made under this section may be enforced as an order of the High Court.
(4) No proceeding taken, or order made, under this section shall prevent the officer from being prosecuted criminally for any offence committed by him, or affect any right of action which any person shall have against him, or the power of the Governor to suspend or dismiss the officer.
PART V
BARRISTERS AND SOLICITORS
Existing practitioners 69. (1) Every person entitled, at the commencement of this Act, to
practise in Montserrat as a barrister or as a solicitor, may continue to practise as heretofore, and shall be a barrister or solicitor, as the case may be, of the Supreme Court.
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(2) Every person holding the office of Attorney General, and any person qualified to practise as a barrister and appointed in the public service as an assistant to the Attorney General, shall, so long as he continues to hold such office, be ex officio a barrister of the court, and shall be deemed to be enrolled as a barrister in accordance with the provisions of this Act. (Amended by Act 15 of 1981)
Admission of Barrister and Solicitor 70. (1) A Judge of the High Court may subject to the provisions of
subsections (2) and (3), admit to practise as a Barrister of the court— (i) any member of the English Bar; (ii) any member of the Scottish Bar; (iii) any member of the Northern Irish Bar; and (iv) any person who has obtained a degree from a recognised
University and has also obtained a certificate of competence from the Council of Legal Education of the West Indies,
and as a Solicitor of the court, any person who shall have been admitted to practise as a Solicitor by a Superior Court in England, Scotland or Northern Ireland:
Provided that upon cause being shown, an application to be so admitted may be refused notwithstanding that the applicant has complied with the provisions of the said subsections:
And Further Provided that no refusal by a Judge of any such application shall be final but any application so refused by such Judge shall, if the applicant so requires by notice in writing to the Registrar, be laid before and dealt with by the Court of Appeal.
(2) Every person applying to be admitted to practise as a solicitor or barrister under the provisions of this Act shall—
(a) pay into the Treasury the sum of $100 as an enrolment fee; (b) file in the office of the Registrar an affidavit of his identity
and that he has paid the fee aforesaid; and (c) deposit with the Registrar for inspection by the court—
(i) the receipt for the fee aforesaid; and (ii) in relation to any person being admitted as a barrister of
the court, his certificate of Call to the English, Scottish or Northern Irish Bar or his degree certificate from a recognised University and his certificate of Competence from the Council of Legal Education of the West Indies and, in relation to any person being admitted to practise as a Solicitor of the court, his certificate of admission as
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a solicitor in England or in Northern Ireland or as Solicitor or Law Agent admitted to practise in Scotland.
(3) Every person applying to be admitted to practise as a barrister by virtue of English, Scottish or Northern Irish qualification shall deposit with the Registrar for inspection by the court, in addition to the documents required to be deposited for inspection under subsection (2)(c) either one of the following documents—
(i) a certificate issued by the Council of Legal Education of London that he has satisfactorily completed a practical training course provided by the said Council and approved by the Chief Justice for the purposes of this section; and
(ii) a certificate signed by his pupil master and countersigned on behalf of his Inn of Court that he has either before or after Call, or partly before and partly after Call read as a pupil for an aggregate period of not less than six months in the Chambers of one or more barristers of not less than five years standing practising in England, or Northern Ireland or Advocate of not less than five years standing practising in Scotland or in the chambers of one or more barristers of not less than ten years standing practising in Montserrat.
(4) In a special case the Judge may exempt any such person from depositing or producing any of the certificates referred to in subsection (2)(c)(ii) and in subsection (3) if otherwise satisfied that he has the qualifications required.
(Substituted by Act 23 of 1975)
Enrolment of Barristers and Solicitors 71. (1) Every person admitted as a barrister or solicitor of the court shall
cause his name to be enrolled in a book to be kept for the purpose by the Registrar and to be called the Court Roll, and, upon his name being so enrolled, shall be entitled to a certificate of enrolment under the seal of the High Court.
(2) Every person, whose name is so enrolled, shall if enrolled as a barrister, be entitled to practise as a barrister, and, if enrolled as a solicitor, be entitled to practise as a solicitor in every court in the Montserrat.
Barristers practising as solicitors 72. Subject to the provisions of section 73 of this Act, every person
enrolled as a barrister shall be entitled to practise also as a solicitor, and to sue for and recover his taxed costs as such, but if he practises as a solicitor, he shall be subject to all the liabilities which attach by law to a solicitor.
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Queen’s Counsel 73. (1) Except as otherwise provided in subsection (2) of this section no
barrister who has the rank of Queen’s Counsel shall perform any of the functions which in England are performed by a solicitor and are not performed by a barrister; but a barrister who has the rank of Queen’s Counsel shall not be precluded from continuing or engaging in partnership with another barrister by reason only that such last mentioned barrister performs any functions as aforesaid.
(2) Every person holding the office of Attorney General, may notwithstanding that he has the rank of Queen’s Counsel, perform the functions mentioned in section 72 of this Act in relation to the duties of his office as Attorney General.
Solicitors and Commissioners for Oaths are officers of the Court 74. (1) Every person practising as a solicitor and whose name shall be
enrolled as aforesaid either as a barrister or solicitor, shall be deemed to be an officer of the court.
(2) Every person who, under the provisions of any Act or Ordinance for the time being in force is, or shall be appointed a Commissioner to administer oaths in the court, shall be deemed to be an officer of the court.
Barristers and Solicitors may be suspended or struck off roll 75. Any two Judges of the High Court may, for reasonable cause,
suspend any barrister or solicitor from practising in Montserrat during any specified period, or may order his name to be struck off the Court Roll.
Unauthorised persons drawing legal documents 76. Every person who, not being enrolled as a barrister or solicitor, or
otherwise lawfully authorised shall, either directly or indirectly for, or in expectation of any fee, gain or reward, draw or prepare any legal document or shall receive any fee, gain or reward for drawing or preparing any such document, shall be liable on summary conviction to a fine not exceeding $100.
Law relating to solicitors, taxation and recovery of costs 77. Subject to the rules of court, the law and practice relating to
solicitors, and the taxation and recovery of costs in force in England shall extend to and be in force in Montserrat and apply to all persons lawfully practising therein as solicitors of the court.
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PART VI
WITNESSES
Disobedience of subpoena 78. If any person served with a subpoena to attend as a witness in any
proceeding before a Judge of the High Court sitting in court or in Chambers or before the Court of Appeal shall refuse or neglect to attend pursuant to such subpoena, such Judge or court may punish such person in a summary way by fine not exceeding $1,000 or by commitment to prison for any term not exceeding six months:
Provided that nothing contained in this section shall affect or abridge any right of any party to the proceeding or proceed against such person for the recovery of any special damage such party may have sustained by reason of the disobedience of such person. (Amended by Act 8 of 1999)
Witness expenses in criminal proceedings 79. (1) Any Judge of the High Court may, in or in respect of any
criminal proceeding before him, order allowances not exceeding those prescribed by rules of court, to be paid to all persons examined or detained as witnesses for the Crown, whether examined before the Magistrate or not, and also to all persons examined or detained as witnesses for the defence who shall have been examined before the Magistrate, and who shall have been bound over to appear before the court at the trial:
Provided that the Judge may, if he shall think fit, order a similar allowance to be paid to any person examined at the trial as a witness for the defence notwithstanding that such person was not examined before the Magistrate.
(2) If any person except a duly qualified medical practitioner giving professional evidence, whose allowance shall, under this section, be ordered to be paid, shall reside at a greater distance than one mile from the Court House at which such trial takes place, the Judge may order to be paid to such person for and in respect of his travelling expenses, such further allowance as may be prescribed by rules of court:
Provided that in the case of a duly qualified medical practitioner, whose whole time is given to the public service, and who is therefore under the provisions of subsection (3) of this section disqualified from receiving an allowance for attendance, the Judge may notwithstanding, order the payment of an allowance for travelling expenses in accordance with this subsection.
(3) When any person called or detained as aforesaid as a witness either for the Crown or the defence is in receipt of a salary as a public officer, such person shall not, unless his whole time is not at the disposal of the Government, by reason of his enjoying private practice or otherwise, be entitled to be paid any allowance under this Act, for attendance as a
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witness, beyond the travelling expenses provided for by subsection (2) of this section.
Persons present at proceedings in Court may be ordered to give evidence
80. Any Judge may, in any proceeding pending before him, order any person present to give evidence therein, notwithstanding that no payment to which he was entitled, shall have been paid or tendered to him.
PART VII
MISCELLANEOUS
Sittings of the Courts 81. (1) Subject to the provisions of this and the next following section,
the High Court and the Court of Appeal for the purpose of exercising the jurisdiction and powers conferred on them respectively by this Act and any other law in force in Montserrat may sit either in Montserrat or in any of the States to which the Supreme Court Order applies.
(2) Sittings of the High Court for the trial of civil and criminal causes originating in Montserrat shall be held at such times as may be prescribed by rules of court and shall be held at Plymouth* except in cases where the Chief Justice gives special directions that the court shall sit at some other place.
(3) Sittings of the Court of Appeal shall be held at such times and at such place as the Chief Justice may by general or special directions appoint.
(4) Notice of the times appointed for the sittings of the High Court and of the Court of Appeal shall be published in the Gazette.
Interlocutory applications 82. (1) In the absence of a Judge or Master, any interlocutory or other
application, which may be made to a Judge in Chambers or a Master, may be reduced to writing and delivered, posted or sent by facsimilie or other electronic means by the Registrar, to the Judge or the Master, together with such affidavits and other documents as are required by the Rules of Court. (Substituted by Act 14 of 2000)
* By Orders made under the Emergency Powers Regulations, the Court House and
Registrar’s Office at Brades, in the temporary Government Headquarters, are respectively designated as places for the sitting of the Supreme Court (S.R.O. 8/1999) and for the storage of records and conduct of the registry (S.R.O. 4/1999).
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(2) The written order of the Judge or Master shall be transmitted to the Registrar and shall be deemed to be the Order of the Court. (Substituted by Act 14 of 2000)
(3) No such application shall be made unless the Registrar shall certify that, to the best of his belief all parties, liable to be affected by the order sought, and entitled to be heard against the same have had due notice thereof, and an opportunity of transmitting any counter affidavits or other documents, in opposition thereto.
Expenses in criminal proceedings 83. In every criminal proceeding, all expenses consequent on, or
incidental to the transmission of process, the conveyance of prisoners and the trial, determination of or dealing with such proceedings, including all allowances ordered to be paid to witnesses under section 79 of this Act, shall be paid out of monies provided by the Legislature.
Remission or reduction of fines 84. Any fine or penalty imposed by a Judge may, at any time before it
has been paid or satisfied, be reduced or remitted by him.
Rules of Court 85. (1) The Chief Justice and any other two Judges of the Supreme
Court may by order provide that any rules of court made under section 17 of the Supreme Court Order shall have effect as part of the law of Montserrat subject to such exceptions, adaptations or modifications as may be specified in the order and any such order may include provision for the amendment or revocation of any rule of court so having effect immediately before the prescribed date.
(2) All rules of court in force immediately before the commencement of this Act shall continue in force until revoked.
Saving of procedure 86. Save as is otherwise provided by this Act or by rules of court, all
forms and method of procedure which under and by virtue of any law, custom or rule whatsoever, were formerly in force in any of the Courts the jurisdiction of which is vested in the High Court or the Court of Appeal respectively, and which are not inconsistent with this Act, or with rules of court may continue to be used in the High Court and the Court of Appeal respectively in the like cases and for the like purposes as those in and for which they have been applicable in the former respective courts.
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