How appealing: Privy Council clarifies BVI test for appeal as of right to the Board

• There are two approaches for determining whether a decision is final or interlocutory: the "application test" or the "order test".
• For the purpose of an application for permission to appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (BVI) to the Privy Council, the Privy Council in Chhina v Ismail and another [2024] UKPC 10 confirms that the "application test" is the correct approach for determining whether a decision is final, which is the same test as applied to the BVI local courts' appeal procedure.
• By this ruling, the Privy Council upholds its long-standing policy to defer to the decisions of the local courts on matters of practice and procedure.

Practical Significance of the Case

Jurisdictions in which the ultimate avenue for appeal lies to the Judicial Committee of the Privy Council (the "Board" or "Privy Council") have different local statutory and procedural rules concerning the meaning of a "final" decision for the purpose of appeals as of right to (i) appellate courts within those jurisdictions and (ii) the Privy Council.

The Board in Chhina v Ismail and another [2024] UKPC 10 adhered to its longstanding policy to defer to the decisions of the local courts on matters of practice and procedure. In doing so, the Board clarified the correct approach to determining whether a decision is "final" for the purpose of appeals as of right to the Board under section 3(1) of the Virgin Islands (Appeals to the Privy Council) Order 1967.

Background

The Court of Appeal of Eastern Caribbean Supreme Court (BVI) (the "Court of Appeal") dismissed the appellant’s application for an extension of time to file and serve the record of appeal and struck out the notice of appeal for want of prosecution. The Court of Appeal further decided that the appellant had no appeal as of right to the Privy Council and that it was not an appropriate case for leave to appeal.

The appellant applied to the Privy Council for leave to appeal.

Following long-standing authorities from a number of Overseas Territories and Crown dependencies (which were addressed in detail in this Judgment), the Board held that there are two approaches to determining whether a decision is final or interlocutory:

1. the “application" test: an order is final if it results from an application which would finally determine the matter, for whichever side succeeded. The test depends on the nature of the application rather than the order as actually made. On that approach, a striking out order would not be final as it involves an application which would not be finally determinative whichever way it was decided: if the application fails then the proceedings continue.
2. the "order" test: that an order is final if it finally determines a matter. It depends upon the nature and effect of the order as made. On that view, a striking out order would be final as it finally determines the proceedings.

In the BVI, it is well settled that when seeking leave to appeal to the Court of Appeal, the correct test is the "application" test as codified in the Civil Procedure Rules 2000 ("CPR") (CPR Part 62.1(3)).

The Court of Appeal considered that the application test should similarly be applied to determine whether a decision is final for the purposes of appeals to the Privy Council.

Privy Council's Decision

Lord Hamblen giving judgment for the Board, held that:

1. The starting point is that the word "final" in provisions governing appeals to the Board has no settled meaning. 
2. Where local jurisdictions have a statutory provision or procedural rule as to how the finality of a decision is to be determined for the purposes of appeals as of right, the Board should follow the same approach in relation to appeals from that local jurisdiction to the Board.
3. The approach to defer to the local courts' practice and procedure is necessary to promote legal coherence in the conduct of civil proceedings within a jurisdiction.
4. There might, however, be some jurisdictions where there is no rule or established practice as to how finality should be determined. In such cases, the Board is likely to apply the application test given the Courts of England and Wales have determined that the application test is 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.

It is now confirmed that the correct approach governing appeals as of right from the BVI to the Privy Council is the application test, the same test as applied to the BVI local courts' appeal procedure.