Appeals as of right to the Judicial Committee of the Privy Council

By section 3(1) of the Virgin Islands (Appeals to Privy Council) Order 1967 (SI 1967 No 234): “an appeal shall lie as of right … in the following cases – (a) where the matter in dispute … involves … property … of the value of £300 sterling or upwards, final decisions in any civil proceedings …”

Adrian Davies for the defendant; Alexander Cook KC and Hossein Sharafi for the claimants.

LORD HAMBLEN, giving the judgment of the Board, said that constitutional and statutory provisions which governed leave to appeal to the Judicial Committee of the Privy Council commonly provided for an appeal as of right from a “final” decision in civil proceedings in certain categories of cases. The present case concerned what the approach of the Judicial Committee should be in determining whether a decision was “final” for those purposes.

The question of whether a decision was final or interlocutory could be difficult to determine. In England there had been two general approaches.

The “order” approach or test was that an order was final if it finally determined a matter. On that approach a striking out order would be final as it finally determined the proceedings.

The “application” approach or test was that an order was final if it resulted from an application which would finally determine the matter, for whichever side the decision was given. On that approach a striking out order would not be final as it involved an application which would not be finally determinative whichever way it was decided — if the application failed the proceedings continued.

The English courts eventually adopted the application test as a general rule. Since 1988 that had been reflected in the rules of court/civil procedural rules.

In the British Virgin Islands leave to appeal to the Court of Appeal was required in relation to most appeals from interlocutory decisions in civil proceedings and it was well established that the application test was applied to determine whether decisions were final or interlocutory. The application test was now codified in the Civil Procedure Rules 2000.

Since the test to be applied in determining whether a decision was final or interlocutory was a procedural matter, the courts of the Eastern Caribbean had taken the view that the application test should similarly be applied to determine whether a decision was final for the purpose of appeals to the Board. That was the basis upon which the Court of Appeal held that there was no appeal as of right in the present case.

The defendant contended that the Court of Appeal was wrong to apply the application test to appeals under section 3(1) of the Virgin Islands (Appeals to Privy Council) Order 1967. While it was accepted that that test applied to appeals to the Court of Appeal itself, it did not follow that it applied to appeals from the Court of Appeal to the Board. That was a matter of the Board’s practice rather than local practice.

In his lordship’s judgment, the starting point was that the word “final” in provisions governing appeals to the Board had no settled meaning. It could legitimately be interpreted as meaning decisions which met the order test or decisions which met the application test. In those circumstances, a crucial consideration was the context in which the word was used.

When the Board was considering an application for leave to appeal from a particular Privy Council jurisdiction it was sitting as the final Court of Appeal in that jurisdiction. As such, the practice and procedure of the jurisdiction in question was of particular importance and it informed the relevant context.

Where the relevant jurisdiction had a statutory provision, procedural rule or established practice as to how the finality of decisions was to be determined for the purpose of appeals as of right within that jurisdiction the Board considered that the same approach should be followed in relation to how finality was to be determined in relation to appeals as of right to the Board. There were a number of reasons for so concluding.

First, there was the need for legal coherence. As the final Court of Appeal, the Board was part of the appellate structure of the country or jurisdiction in question. In any appellate system one would expect the issue of finality to be addressed in the same manner at each appellate level. Any other approach introduced inconsistency and anomaly.

Second, it was important that there be consistency of interpretation. In any jurisdiction which required leave to appeal to be obtained in relation to interlocutory decisions, or in relation to decisions which were not final decisions, a question of interpretation would arise as to what was interlocutory and what was final.

In the appellate context, those were usually two sides of the same question. What was interlocutory would not be final and what was final would not be interlocutory. It was important that the question was approached consistently. That would only be so if “final” in the context of the provision governing appeals to the Board was interpreted consistently with the meaning of “final” or “interlocutory” in the provisions relating to appeals before the local courts.

Third, the importance of consistency was highlighted by the perverse consequences which might otherwise arise. If, for example, the local courts applied the application test and the Board applied the order test then the test for an appeal to the highest court would be broader than that for lower courts. That would be a remarkable if not unprecedented outcome.

Fourth, the approach was consistent with the long-established policy of the Board to defer to the local courts in matters of practice and procedure.

Finally, in terms of practicality there were obvious advantages for local parties and practitioners to know that the same approach would be taken to the issue of finality by the Board as was taken by the local courts.

There might, however, be some jurisdictions in which a distinction was drawn between interlocutory and final decisions in relation to rights of appeal but there was no rule or established practice as to how finality should be determined. In such cases the Board was likely to apply the application test.

The reason for doing so was that in such a case it would be appropriate to look to the practice and procedure of the English courts for guidance and the application test was now the established test. That would always, however, be subject to particular considerations that might be relevant to the jurisdiction in question. There could be no rule to that effect.

In the British Virgin Islands it was well established that the application test was used to determine whether a decision was final and that was expressly stated in the applicable civil procedural rules. It was appropriate, therefore, for the Board to use that test to determine whether a decision was “final” for the purpose of appeals as of right to the Board under section 3(1) of the 1967 Order.

It followed that the Court of Appeal had applied the correct test and reached the correct conclusion. Applying the application test the decision in the present case was not a “final” decision and accordingly there was no appeal as of right.

In the light of that conclusion the defendant would have to establish that the present case was an appropriate one for discretionary leave to be given under section 3(3) of the 1967 Order. In accordance with the Board’s usual practice, that application would be determined on the papers by a panel of three justices.

Solicitors: Osmond & Osmond; Edwin Coe LLP.