The BVI Court of Appeal gets it right! Privy Council clarifies principles for determining when an appeal as of right arises in the British Virgin Islands

On 14 May 2024, the Privy Council delivered its judgment in Chhina v Nazir and Another [2024] UKPC 10, an appeal from the British Virgin Islands (“BVI”).  The Judgment sets out the circumstances in which an appeal of right to the Privy Council arises. Two specific issues were considered. Firstly, whether an appeal to the Privy Council lies as of right or only with leave in the context of an order striking out an appeal for want of due prosecution and where an extension of time had been refused. Secondly, whether such orders were final or interlocutory in nature.

In brief, Chhina (the “Appellant”) launched proceedings in the BVI Commercial Court claiming ownership of shares in a BVI Company.  On 1 October 2020, the claim was dismissed, and the Appellant appealed on 12 November 2020. The Appellant failed to take further steps in pursuing the appeal and on 18 March 2022, the Respondents applied strike out the appeal for want of prosecution.  The Appellant subsequently applied to extend time to file the record of appeal (the “Extension Application”).  After hearing both applications on 10 May 2022, the BVI Court of Appeal on 22 July 2022 dismissed the Extension Application and struck out the notice of appeal for want of prosecution.

The BVI Court of Appeal refused the Appellant’s subsequent application for conditional leave to appeal to the Privy Council under s. 3(1) and (2) of the Virgin Islands (Appeals to the Privy Council) Order 1967.  The Appellant applied to the Privy Council for permission to appeal on the basis that the decision to strike out the appeal was a “final” decision, and that she therefore had an automatic right to appeal to the Privy Council as of right.

It is uncontroversial that there is an appeal as of right in respect of “final” decisions while permission is required for an appeal from “interlocutory” decisions.  It is more difficult however to determine the question of whether a decision is final or interlocutory.

There are two general approaches to the determination of that question: the “order” test and the “application” test.  The “order” test is that an order is final if it finally determines a matter.  This of course depends on the nature and effect of the order as made.  On this approach, a striking out order would, for example, be final as it finally determines the proceedings.  The “application” test is that an order is final if it results from an application which will finally determine the matter, for whichever side the decision is given.  This depends on the nature of the application rather than the order as made.  On this approach a striking out order would not be final as it involves an application which would not be finally determinative whichever way it is decided – if the application fails the proceedings continue.  Under the application test, a striking out application is thus interlocutory.

In deference to local courts in matters of practice and procedure, the Board held that where the local jurisdiction has a statutory provision, procedural rule, or established practice as to how the finality of decisions is to be determined for the purpose of appeals as of right, the Board should follow the same approach in relation to appeals as of right to the Privy Council.

In the BVI, it is well-established that the application test is used to determine whether a decision is final.  This is expressly stated in the rule 62.1 of the Eastern Caribbean Supreme Court Civil Procedure Rules (Revised Edition) 2023, the relevant portions of which state:

1. This Part deals with appeals to the Court of Appeal from –
   1. the High Court;
   2. a magistrate’s or district court; or
   3. a tribunal, not being –
      1. appeals or applications to the court for which other provision is made by these Rules or any other law; or
      2.  appeals by way of case stated on a question of law for determination by the court.
2. […]
3. In this Part –
   1. a determination whether an order or judgment is final or interlocutory is made on the “application test”;
   2. an order or judgment is final if it would be determinative of the issues that arise on a claim, whichever way the application could have been decided

The Board thus considered that it was appropriate for it to use the application test to determine whether a decision is “final” for the purpose of appeals as of right to the Privy Council under section 3(1) of the 1967 Order.  It found that the Court of Appeal applied the correct test (the application test) and reached the correct result – that the decision to strike out the appeal is not a “final” decision and accordingly permission to appeal is required as there is no appeal as of right.

The Privy Council decision in Chhina serves as a useful reminder of the Board’s deference to local Courts with respect to matters of practice and procedure, as well as the approach taken by BVI Courts in determining the circumstances in which an appellant is entitled to an appeal to the Privy Council as of right.