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In the Matter of KMG International NV -v- DP Holding

April 2018 AppealProcedure

BRITISH VIRGIN ISLANDS

COURT OF APPEAL

CROSS-APPEAL PROCEDURE – WHETHER LEAVE TO APPEAL IS REQUIRED

This Judgment arose in the context of appeal case KMG International NV -v- DP Holding SA. KMG International NV applied to have DPH’s cross-appeal struck out on the ground that it did not obtain leave to advance the cross-appeal. The appeal and cross-appeal were both of interlocutory matters and therefore were not arising as of right.

The issue arising on this earlier Judgment was one of procedure, namely whether a cross-appellant required leave to appeal a decision of the Court below where the appellant in the main appeal had already obtained leave in relation to its appeal. The Court found that leave was not required. In so doing it held that once an appeal against a Judgment is commenced, whether as of right or with permission, the jurisdiction of the Court of Appeal to determine any issue arising under the Judgment became engaged. The party desiring to cross-appeal on an issue considered in the same Judgment may do so requiring separate leave. In the Court’s view it did not matter in the case of the counter-notice that it was not the appellant who placed the issue before the Court of Appeal.

Mark Forte and Tameka Davis of Conyers were instructed by the appellant and led by Alain Choo Choy QC.

 

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In the Matter of KMG International NV -v- DP Holding

 

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