Inderjit Kaur Chhina v Muhammad Nazir Muhammad Ismail and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hamblen |
| Judgment Date | 14 May 2024 |
| Neutral Citation | [2024] UKPC 10 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0040 of 2023 |
[2024] UKPC 10
Lord Briggs
Lord Hamblen
Lord Stephens
Lord Richards
Lady Simler
Privy Council Appeal No 0040 of 2023
Privy Council
Easter Term
From the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands)
Appellant
Adrian Davies
(Instructed by Osmond & Osmond (London))
1 st Respondent
Alexander Cook KC
Hossein Sharafi
(Instructed by Edwin Coe LLP (London))
Heard on 17 April 2024
Constitutional and statutory provisions which govern leave to appeal to the Judicial Committee of the Privy Council commonly provide for an appeal as of right from a “final” decision in civil proceedings in certain categories of cases.
The present case concerns what the approach of the Judicial Committee should be in determining whether or not a decision is “final” for these purposes. This was a question raised but not decided in Jacpot Ltd v Gambling Regulatory Authority [2018] UKPC 16 – see paras 9 to 10.
The issue arises in relation to an application for leave to appeal from a decision of the Court of Appeal of the British Virgin Islands (“BVI”), which is the Eastern Caribbean Supreme Court. By that decision, made in a pending appeal to the Court of Appeal, the Court 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. By a further decision the Court decided that the appellant had no appeal as of right to the Judicial Committee and that it was not an appropriate case for leave to appeal.
The appellant applied to the Judicial Committee for leave to appeal, contending that she is entitled to appeal as of right. The panel considering the application (Lord Briggs, Lord Hamblen and Lord Leggatt) directed that there be an oral hearing of the question of whether the Court of Appeal was correct to hold that the appellant does not have an appeal as of right. A panel of five justices was convened for that hearing.
The respondents brought proceedings in the Commercial Court of the BVI claiming ownership of the shares of a BVI company, Firmingham Ltd (“Firmingham”), that owned property in London, England. Following a four-day trial, in a judgment dated 1 October 2020, Jack J held that the second respondent was entitled to be recognised and registered as the legal owner of the shares, held on trust for the first respondent. He ordered that the register of members be rectified to remove the appellant and to show the second respondent as the sole shareholder of Firmingham.
The appellant filed a notice of appeal with the Court of Appeal on 12 November 2020. The date for filing the record of appeal was 10 August 2021 and the date for filing the appellant's skeleton argument was 20 August 2021. Neither was done. On 18 March 2022 the respondents issued an application to strike out the appeal. On 25 April 2022 the appellant issued a cross-application for an extension of time for filing the record of appeal and the appellant's skeleton argument.
The application and cross-application were heard by the Court of Appeal (Thom JA, Farara JA (Ag) and Ward JA (Ag)) on 10 May 2022. On 22 July 2022, judgment was delivered allowing the respondents' application and dismissing the appellant's cross-application.
On 12 August 2022, the appellant applied to the Court of Appeal for conditional leave to appeal to the Judicial Committee. There was an oral hearing of the application on 9 February 2023. On 23 March 2023, the Court of Appeal (Thom JA, Price-Findlay JA and Webster JA (Ag)) gave judgment refusing leave to appeal.
On 16 May 2023, the appellant issued an application to the Judicial Committee for permission to appeal, asserting that she was entitled to appeal as of right.
Appeals to the Judicial Committee from the BVI are governed by section 3 of the Virgin Islands (Appeals to the Privy Council) Order 1967 (SI 1967/234) (“the 1967 Order”). This provides:
“ Appeals to Her Majesty in Council
3.—(1) Subject to the provisions of this Order, an appeal shall lie as of right from decisions of the Court to Her Majesty in Council in the following cases—
(a) where the matter in dispute on the appeal to Her Majesty in Council is of the value of £300 sterling or upwards or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of £300 sterling or upwards, final decisions in any civil proceedings;
(b) final decisions in proceedings for dissolution or nullity of marriage; and
(c) such other cases as may be prescribed by any law for the time being in force in the Virgin Islands.
(2) Subject to the provisions of this Order, an appeal shall lie from decisions of the Court to Her Majesty in Council with the leave of the Court in the following cases—
(a) where in the opinion of the Court the question involved in the appeal is one that, by reason of its great general or public importance or otherwise, ought to be submitted to Her Majesty in Council, decisions in any civil proceedings; and
(b) such other cases as may be prescribed by any law for the time being in force in the Virgin Islands.
(3) An appeal shall lie to Her Majesty in Council with the special leave of Her Majesty from any decision of the Court in any civil or criminal matter.”
For those categories of case which fall within section 3(1)(a) or (b) there is an appeal as of right in respect of “final” decisions. The question of whether a decision is final or interlocutory can be difficult to determine – see, for example, the comments of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at pp 600G-601D. In England there have been two general approaches to the determination of that question. The “order” approach or test is that an order is final if it finally determines a matter – it depends on the nature and effect of the order as made – see Shubrook v Tufnell (1882) 9 QBD 621 and Bozson v Altrincham Urban District Council [1903] 1 KB 547. On this approach a striking out order would, for example, be final as it finally determines the proceedings. The “application” approach or 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 – it depends on the nature of the application rather than the order as made – see Salaman v Warner [1891] 1 QB 734. 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.
The English courts eventually adopted the application test as a general rule – see Salter Rex & Co v Ghosh and White v Brunton [1984] QB 570 (where the authorities and alternative approaches are reviewed). Since 1988 this has been reflected in the rules of court/civil procedural rules – see RSC Order 59 r1A(3) – “A judgment or order shall be treated as final if the entire cause or matter would (subject only to any possible appeal) have been finally determined whichever way the court below had decided the issues before it.”
In the BVI leave to appeal to the Court of Appeal is required in relation to most appeals from interlocutory decisions in civil proceedings. As is common ground, it is well established in the BVI that the application test is applied to determine whether decisions are final or interlocutory. As the Court of Appeal stated:
“6. It is settled law in the Eastern Caribbean that the court applies the application test to determine whether an order is final or interlocutory. This was settled by this Court on 18 September 1995 in Othniel Sylvester v Satrohan Singh…
…
8. The application test is now codified in the Civil Procedure Rules 2000 (‘CPR’) Part 62.1(3) which states simply that ‘In this Part – (a) a determination whether an order or judgment is final or interlocutory is made on the “application test”’.
9. The test has been followed in numerous decisions of this Court since then…”
Since the test to be applied in determining whether a decision is final or interlocutory is a procedural matter, the courts of the Eastern Caribbean have taken the view that the application test should similarly be applied to determine whether a decision is final for the purpose of appeals to the Judicial Committee. They consider that this is supported by the Board's decision in Haron bin Mohammed Zaid v Central Securities (Holdings) Bhd [1983] 1 AC 16 (“ Zaid”) and the Board's general policy to defer to local courts on matter of procedure. That was the basis upon which the Court of Appeal held that there was no appeal as of right in the present case.
Mr Adrian Davies for the appellant contended that the Court of Appeal was wrong to apply the application test to appeals under section 3(1) of the 1967 Order. While it is accepted that this test applies to appeals to the Court of Appeal itself, it does not follow that it applies to appeals from the Court of Appeal to the Board. That is a matter of the Board's practice rather than local practice.
Further, such previous decisions of the Board as touch upon this issue support the application of the order test. Reliance was placed in particular on the Board's decisions in Ratnam v Cumarasamy [1965] 1 WLR 8, Lopes v Valliappa Chettiar [1968] AC 887 and Meyer v Baynes [2019] UKPC 3.
Mr Alexander Cook KC for the respondents contended that the Court of Appeal was correct to conclude that the application test applies. This accords with (i) the longstanding policy of the Board to defer to decisions of the local courts on issues of procedure, (ii) a...
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