We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
21 April 2005
In some recent decisions the Court of Appeal seems to have adopted a more restrictive line on applications for leave to appeal to the Privy Council. Although the Virgin Islands (Appeals to the Privy Council) Order provides a number of ways to appeal, the main provision for commercial disputes is set out under Paragraph 3(1)(a). This provides that a party is entitled to leave as of right:
"where the matter in dispute on the appeal to her majesty in council is of the value of £300 or upwards or where the appeal involves directly or indirectly a claim or question respecting property or a right of the value of £300 or upwards, final decisions in civil proceedings."
The question of value is examined from the point of view of the party appealing,
disregarding questions of costs (Meghji Lakhamshi v Furniture Workshop
(1954; AC 80) and Fletcher v Income Tax Commissioners (1972; AC 414)).
As was noted in Meghji, this approach may give different results depending
upon which party is appealing.
Until recently the Court of Appeal tended quite to interpret Paragraph 3(1)(a) liberally, but this seems to be changing. At its last sitting, for instance, the court affirmed that it would use the application test over the order test in deciding whether a decision was a final judgment where a proposed appeal would be as of right. In applying the application test the court dismissed an application for leave to appeal from an order granting summary judgment.
At the same sitting the court considered that a claim concerning the cancellation of shares did not, on the facts of that case, fall within Paragraph 3(1)(a). In an earlier case the court dismissed a company's application for leave against an order that the company be wound up on the basis that it was not, directly or indirectly, a money claim and therefore did not fall within Paragraph 3(1)(a).
If the application for leave does not fall within Paragraph 3(1)(a), an applicant will have the difficult task of convincing the court to use its discretion to grant leave under Paragraph 3(2)(a), which provides that leave can be granted 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, ought to be submitted to the Privy Council.
The Court of Appeal defined the types of case which might fit into this category, including those which involve:
It remains to be seen whether the Court of Appeal will continue this approach, but it is likely that it will, given that other intermediary appeal courts have taken a similar stance (eg, the English Court of Appeal).
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.