Inderjit Kaur Chhina v Muhammad Nazir Muhammad Ismail and another (British Virgin Islands)

For an appeal as of right to the Privy Council, the meaning of “final” depends on context. Where the local jurisdiction has a statutory provision, procedural rule or established practice for determining finality, the Board should use the same approach. This promotes coherence, consistency and respect for local procedural practice. If no such local rule or practice exists, the Board is likely to consider the English application test, subject to local considerations. In the British Virgin Islands, the application test is established and codified. It therefore governs finality for appeals as of right under the Virgin Islands (Appeals to the Privy Council) Order 1967. A decision dismissing an application for an extension of time and striking out a pending appeal for want of prosecution was not final, so no appeal as of right arose.

The respondents claimed ownership of shares in Firmingham Ltd in the Commercial Court of the British Virgin Islands. Following trial, Jack J ordered rectification of the company’s register in favour of the respondents. The appellant filed a notice of appeal but failed to file the record of appeal and skeleton argument within time. The Court of Appeal dismissed her application for an extension, struck out the appeal for want of prosecution, and later refused leave to appeal, holding that there was no appeal as of right.

The appellant applied to the Privy Council, arguing that the decision was final under section 3(1)(a) of the Virgin Islands (Appeals to the Privy Council) Order 1967. The central issue was whether the Board should apply the order test or the established BVI application test.

The Board, in a judgment delivered by Lord Hamblen, held that the Court of Appeal had applied the correct test and reached the correct conclusion. The decision under challenge was not final, and the appellant had no appeal as of right.

1. Meaning of “final”. The word “final” in provisions governing appeals to the Board has no single settled meaning. It may refer to the order test, which looks at the nature and effect of the order, or the application test, which asks whether the application would finally determine the matter whichever way it was decided.
2. Relevant local practice. The proper approach depends on the jurisdictional context. Where a local statutory provision, procedural rule or established practice determines finality for appeals as of right within that jurisdiction, the Board should follow the same approach for appeals as of right to the Board. This avoids inconsistency between appellate levels, promotes legal certainty and accords with the Board’s established restraint in matters of local practice and procedure. The approach is particularly appropriate where the statutory term has no self-contained meaning. The local practice should prevail unless clearly contrary to the applicable statute.
3. Absence of local guidance. Where a jurisdiction distinguishes between final and interlocutory decisions but has no rule or established practice for determining finality, the Board is likely to look to English practice and apply the application test, subject to considerations specific to that jurisdiction. This was guidance for future cases rather than a rule necessary to the present decision.
4. Application in the BVI. The application test was well established in the BVI and expressly codified by CPR Part 62.1(3). The Board therefore applied it when construing “final” under section 3(1) of the Virgin Islands (Appeals to the Privy Council) Order 1967. The application to extend time did not finally determine the matter whichever way it was decided. The resulting strike-out of the pending appeal was consequently not a final decision for the purposes of an appeal as of right.

The appellant had to establish entitlement to special leave under section 3(3) of the 1967 Order. That application was to be determined on the papers by a panel of three Justices.

• Privy Council: Held that the challenged decision was not final under the application test and that no appeal as of right lay.
• Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands): On 22 July 2022, dismissed the application for an extension of time and struck out the notice of appeal for want of prosecution. On 23 March 2023, refused leave to appeal and held that there was no appeal as of right.
• Commercial Court of the British Virgin Islands: Following a four-day trial, Jack J held on 1 October 2020 that the second respondent was entitled to recognition and registration as legal owner of the shares.