They think it’s all over – no, it’s not – Privy Council guidance on finality
Legislative provisions which govern leave to appeal to the JCPC generally provide for an appeal as of right from a final (as opposed to an interlocutory) decision in certain categories of civil proceeding. But how do you determine if a decision is final?
The Board answered that question in Chhina v Nazir[1], confirming when a decision will be considered final, and assessing whether an appeal to the JCPC arises as of right.
The case itself concerned a decision of the BVI Court of Appeal which dismissed the appellant’s application for an extension of time to file a record of appeal and struck-out the appellant’s notice of appeal for want of prosecution. The appellant applied to the JCPC for leave to appeal the strike out decision but was refused. Undeterred, the appellant then applied to the JCPC for permission to appeal on the grounds that the strike out decision was final, and as such she was entitled to appeal as of right.
As to whether the strike out decision was final, the Board recognised that the courts of the Eastern Caribbean use the application test (as opposed to the order test) to determine finality. Under the application test, an order is final if it was made on an application which would have determined the matter for whichever side the decision was given. In contrast under the order test, an order is final if it determines finally the issue in litigation.
The Board determined that where the relevant jurisdiction (in this case, the BVI) has established rules as to how the finality of decisions is to be determined for the purpose of appeals as of right, the same approach should be followed in relation to appeals to the Board.
Applying the application test to the strike out decision, the Board determined that the decision of the CoA was not “final”. Accordingly, permission to appeal was required, as there is no appeal as of right.
It is worth noting that under the old English procedural rules, in 1988, the Supreme Court Rules Committee set out examples of orders that shall be treated as final, and those that shall be treated as interlocutory – including, in the latter case, orders dismissing or striking out an action or other proceedings for want of prosecution (see here). The ECSC has yet to do the same.
[1] Inderjit Kaur Chhina v Muhammad Nazir Muhammad Ismail and another (British Virgin Islands) [2024] UKPC 10
