BRITISH VIRGIN ISLANDS Law and Practice Contributed by: Alex Hall Taylor KC, Richard Brown, Tim Wright and Simon Hall, Carey Olsen
10.4 Issues Considered by the Appeal Court at an Appeal The appeal issues are defined by the notice of appeal and any counter-notice filed. Parties may seek per- mission to amend those notices, which is a matter of discretion for the Court of Appeal. The appeal is a review, not a rehearing. In general, new points not explored at first instance ought not to be taken on appeal, although there is a discretion to permit such points. 10.5 Court-Imposed Conditions on Granting an Appeal On granting leave, the court may impose conditions; for example, the court may require payment into court in respect of any award made at first instance. It is possible for a respondent to an appeal to apply for security for its costs of an appeal. 10.6 Powers of the Appellate Court After an Appeal Hearing Following conclusion of an appeal, the Court of Appeal has fulfilled its function, save for: • applications for conditional and final leave to the Privy Council; • stays of execution; or • continuing interim relief, such as an injunction, pending determination of any further appeal. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party in any particular application or at trial, although the court retains a discretion, and the award of costs will depend on the conduct of the respective parties. The court has a power to award costs against third parties but this is only exercised in exceptional cases. Where costs are to be assessed, the receiving party will serve the paying party with a schedule setting out the costs claimed including lawyers’ fees, court fees, expenses, disbursements, etc. If unable to agree on
Certain Other Decisions Where Leave is Required Leave to appeal to the Court of Appeal is required from the High Court in relation to a consent order or orders for costs only where such costs are left to the discretion of the judge. 10.3 Procedure for Taking an Appeal High Court to the Court of Appeal – Where Leave is Required Application for leave to appeal must be made to the High Court within 21 days of the order. If refused by the High Court, an application may be made to the Court of Appeal within seven days of the High Court’s refusal. Once leave is granted, the notice of appeal must be filed within 21 days. There is provision in the EC CPR for filing of submissions and other documents in the appeal. High Court to the Court of Appeal – Where Leave is Not Required In interlocutory appeals where no leave is required, such as discharging an injunction, the notice of appeal must be filed within 21 days of the decision. In the case of a final appeal, the notice of appeal must be filed within 42 days of the decision. In both cases, there is also provision in the EC CPR for filing of submissions and other documents in the appeal. From the Court of Appeal to the Privy Council An application for conditional leave should be made to the Court of Appeal within 21 days of their decision. If granted, and once conditions are met (payment of security and preparation of the record), an application for final leave is made to the Court of Appeal. Once granted, the appeal can proceed to the Privy Council. If leave to appeal to the Privy Council is required but refused by the Court of Appeal, a prospective appel- lant may apply directly to the Privy Council for “special leave”. The Privy Council retains complete discretion although in practice the granting of special leave is limited in civil cases.
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