[March 7, 2017]

No it has nothing to do with a salamander!

The question is a simple one. The Bozson and Salaman Tests are straightforward. They refer to the two sides of the same coin.

They concern two cases: Bozson v Altrincham Urban District Council [1903] 1 KB 547  and  Abd Salaman v Warner [1891] 1 QB 734.

These two tests differentiate between a ‘final order’ and an ‘interlocutory order’.

Where a case has started, it may proceed until the end of trial.

The trial can be by a contest of oral evidence (hence a ‘trial’).  Or it can be by a contest of affidavits.

In a contest of affidavits, the judge, having read only the sworn statements from both sides, and after hearing arguments, will decide for the one or the other side.

Before trial starts, the parties may make certain applications to the court. These are referred to as ‘pre-trial applications’ or ‘interlocutory application’.   The court makes these orders between the start and the end of the case. This is why they are known as ‘interlocutory orders’. ‘Interlocutory’ means, for our purposes, ‘between the start and before the witnesses speak’. Mostly these applications are procedural matters that the parties wish to deal with at the pretrial stage.

For example, one party may apply for an injunction restraining the other party from selling off the assets in dispute. Or the defendant may ask to see certain documents in the possession of the plaintiff.

If a judge grants such an injunction, or orders the defendant  to produce certain documents (called a ‘Discovery Order’), it does not mean that the plaintiff has won, or that the defendant has lost.  Such an order only regulates the conduct of the parties before the end of trial.  These orders do not ‘finally determine the rights of the parties’.

Now fast forward to the end of the trial.

Suppose at the end of the trial the judge makes an order, granting everything that the Plaintiff has asked for. Or suppose he dismisses the plaintiff’s claim. That is a ‘final order.’  It has finally and conclusively determined the right of parties. There is nothing more to be done, except an appeal, or failing that, the enforcement of the final order.

Now to the cases:

In the UK case ofSalaman v Warner and Others [1891] 1 QB 734 Lord Esher said that where the court’s decision finally disposes of the matter in dispute, the decision is a ‘final decision’. On the other hand where the decision will allow the action to go on, then the order is not a final order, but an interlocutory one.

Again, In the case ofBozson v. Altrincham Urban District Council [1903] 1 KB 547 Lord Alverstone CJ, sitting in the Court of Appeal, said: ‘It seems to me that the real test for determining this question ought to be this : Does the judgement or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.’

If you need to do a bit more research on this subject start with the Singapore apex case of Aberdeen Asset Management Asia Ltd and Another v Fraser & Neave Ltd and Others [2001] SGCA 65.  There the question concerned an appeal.  One of the parties said the time for filing of the appeal varied between a final order and an interlocutory order.  The court was asked first, whether the nature of the order appealed against was final or interlocutory, and depending on its answer, whether it should extend time. You needn’t worry about that.  You are only concerned with the question: what makes a final order, and what doesn’t.

The Singapore Court of Appeal, in analysing the law, held that the Bozson test was ‘more logical’.

If you are feeling a little adventurous, you might also wish to refer to the Privy Council case of Strathmore Group v Fraser[1992] 2 AC 172 from New Zealand,English Court of Appeal decision in White v Brunton[1984] QB 570[1984] 2 All ER 606,the difficult decision of see Lord Denning MR in Salter Rex & Co v Ghosh[1971] 2 QB 597[1971]2 All ER 865at 866,and the 1961 Nigerian case of William Ude & Orsv.Josiah Agu & Ors [SUIT NO. FSC 54/1960;LN-e-LR/1961/84 (FSC)]