Understanding the Law
July 5, 2013

Leave to appeal

The week before last, we looked at interlocutory matters under a single judge. By now, you would have an understanding of what is an interlocutory or interim matter. It is not the substantial or final matter. For example, in the case that was looked at, a claim for damages was made to the court, but the Attorney General, who was one of the parties, made an application to be removed as a party.{{more}} The Attorney General’s application was not the substantive matter. It was more or less a side issue. The substantive matter was the claim for damages.

For an interlocutory matter to be heard by the appeal justices, the appellant must first obtain leave of the court before he files a notice of appeal. That leave must be obtained from the judge or the court of appeal, otherwise the notice of appeal would not be valid.

Supreme Court Act

The states in the Eastern Caribbean Supreme Court have Supreme Court Acts. These acts state that no appeal could be made on an interlocutory order or judgment without the leave of a judge or appeal court, except where there is an injunction or the appointment of a receiver is granted or refused, or where a substantially final order is appealed.

Notice of appeal without leave.

In the case of A B C & D v E, the appellant appealed because the trial judge had refused to grant “Norwich Pharmacal” and “Bankers Trust” relief (disclosure orders). The notice of appeal was filed without obtaining leave to appeal.

Norwich Pharmacal

The Norwich Pharmacal relief/orders derived its name from the case of Norwich Pharmacal Co and Others v Customs and Excise Commissioner [1974] A.C. 133 House of Lords, England, in which orders were made to produce information and evidence. The nature of the relief was of some concern, but Lord Reid gave some substance to this in his words: “where a person albeit innocently and without incurring any personal liability, became involved in the tortious acts of others, he came under a duty to assist one injured by the acts by giving full information by way of discovery and disclosing the identity of the wrongdoers.”

A B C & D v E

In the A B C & D v E case, the decision was written by the Honourable Dame Janice Pereira and concurred by two other Justices of the Appeal. The Justices of the Appeal directed the parties to address the issue of whether leave was required in that particular case, in the light of two earlier decisions in the Supreme Court. The issue as to whether the relief was an injunction or final order was addressed because those are exceptions for filing notice of appeal without leave of the court. The Justices believed that, in general, whether an order is final or interlocutory turns on various factors and may depend on the circumstances of the case.

The Justices of Appeal examined several English case laws and treatises and considered them to be highly persuasive so as to be binding. It was concluded that the Norwich Pharmacal relief is an injunction and that the notice of appeal was properly filed. On the two decisions in the region, the Justices decided that the court would not have fallen into error if it were assisted with the authorities, which were available at that time.

Ada Johnson is a solicitor and barrister-at-law.

E-mail address is: exploringthelaw@yahoo.com