On 12 July 2021, the Court of Appeal of the Eastern Caribbean Supreme Court (the "Court of Appeal") reached a unanimous ruling on the time limit for applying for a motion for leave to appeal to Her Majesty in Council (the "Privy Council").
Section 4 of the Virgin Islands (Appeals to Privy Council) Order 1967 (the "1967 Order") states that applications to the Court of Appeal for leave to appeal to the Privy Council shall be made by motion or petition within 21 days of the date of the decision to be appealed from. The 1967 Order is a UK statutory instrument that was enacted under the exercise of powers by Section 1 of the Judicial Committee Act 1984 (an English Act of Parliament).
In the case before the Court of Appeal on 12 July 2021, the question for the panel was how the twenty-one day period, set out at section 4 of the 1967 Order, should be calculated.
BVI Counsel for the intended appellants issued an ancillary application to determine whether their client was out of time with its motion for leave to appeal to the Privy Council in circumstances where they issued their client's motion for leave to appeal some thirteen hours after the twenty-one day period prescribed by section 4 of the 1967 Order. Counsel for the intended appellant unsuccessfully argued that (i) the Court of Appeal could apply the "clear days" rule in rule 3.2 of the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000 (the "CPR"); or, alternatively, that (ii) the Court of Appeal had a case management discretion to extend the twenty-one day period under part 26 of the CPR.
Walkers was instructed to appear on behalf of the intended respondents to the appeal and argued that the CPR did not apply to the 1967 Order and that the intended appellant was asking the Court of Appeal to take a purposive approach where there was no ambiguity: the twenty-one day period set out at section 4 of the 1967 Order is clear and does not include a provision to extend time. The Court of Appeal was taken to the case of Fairfield Sentry Limited v Alfredo Migani and others and, in particular, to paragraphs 11 and 12 of the judgment in that case, which make it clear that the Court has no power to extend the twenty-one day period under section 4 of the 1967 Order.
The panel reached a unanimous ruling and dismissed the intended appellant's application to extend time for applying for a motion for leave to appeal to the Privy Council. The ruling by the Court of Appeal was as clear as the undisputed wording in Section 4 of the 1967 Order:
- motion for leave to appeal to the Privy Council is out of time by reference to the plain and ordinary words of Section 4 of the 1967 Order by applying well-established rules of statutory interpretation;
- section 4 of the 1967 Order is plain and unambiguous so there is no need to consider the intention of the makers of the 1967 Order;
- even if that were not so, section 2(2) of the 1967 Order required the Court of Appeal to look at the (English) Interpretation Act 1889 when interpreting the 1967 Order but that was of no assistance because it does not contain any relevant provisions dealing with computation of time;
- the Court of Appeal would then consider Section 39 of the BVI Interpretation Act (1991 Revision) but applying the time computation provisions of that act still meant that the intended appellant's motion for leave to appeal to the Privy Council was out of time; and
- CPR 26.1(k), on which the intended applicant sought to rely to persuade the Court of Appeal that it had a general case management discretion to extend time, was of no application because that rule of the CPR only gave the Court of Appeal jurisdiction to extend or shorten the time for compliance with "any rule, practice direction, order or direction of the court" and could not, therefore, be used to, override the provisions of the 1967 Order.
This decision is an important one because it confirms that a motion for leave to appeal to the Privy Council must be made within the twenty-one day time period set out in section 4 of the 1967 Order and no later. This ruling serves as a reminder to all Legal Practitioners of the importance of adhering to strict time limits set out in that legislation.
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