[1] Marinor Enterprises Ltd [2] Michael Astaphan Appellants/Applicants v First Caribbean International Bank (Barbados) Ltd formerly known as Barclays Bank Plc Respondent

• Jurisdiction: Dominica
• Judge: Baptiste JA,Justice of Appeal,Davidson Kelvin Baptiste,Mario Michel,Gertel Thom
• Judgment Date: 04 April 2016
• Judgment citation (vLex): [2016] ECSC J0404-1
• Date: 04 April 2016
• Court: Court of Appeal (Dominica)
• Docket Number: DOMHCVAP2013/0003

[2016] ECSC J0404-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

DOMHCVAP2013/0003

Between:

[1] Marinor Enterprises Limited

[2] Michael Astaphan

Appellants/Applicants

and

First Caribbean International Bank (Barbados) Ltd. formerly known as Barclays Bank Plc

Respondent

Application to vary or discharge order of a single judge of the Court of Appeal — Application to further amend notice of appeal refused by single judge — Principles relating to amendments — Approach of appellate court to exercise of case management discretion of lower court judge — Powers of the Court of Appeal — Section 32(3) of the Eastern Caribbean Supreme Court (Dominica) Act

On 22^nd February 2006, the respondent ("First Caribbean") instituted a mortgage claim against the applicants. The applicants filed their defence on 31^st October 2006. On 25^th September 2009, the applicants filed an amended defence and counterclaim, the same day that an application for leave to amend the defence and counterclaim was heard by the master. The master refused the application and ordered that the amended defence filed on that day be struck out. On 13^th April 2012, the applicants, acting by new counsel, filed another application to amend the defence. At that time the trial had been fixed for 8^th May 2012. The applicants submitted in support of the application that the amended defence and counterclaim consisted of factual and legal grounds which were much more substantial and extensive than those in the existing defence. The court dismissed the application. The claim proceeded to trial and on 13^th December 2012, the judge in the court below delivered judgment for First Caribbean.

The applicants filed a notice of appeal against the judgment on 29^th January 2013, which was amended on 12^th March 2015. The appeal came up for hearing in mid-June 2015 but was adjourned to the November sitting of the Court as a result of an application made by the applicants on 8^th June 2015 for an adjournment to enable them to properly retain counsel of their choosing. By application dated 5^th October 2015, the applicants applied to further amend the notice of appeal to add as grounds of appeal, the two interlocutory orders in the court below refusing their application to amend the defence, notwithstanding that there was no appeal against these orders. The application was opposed by First Caribbean and on 20^th October 2015, a single judge of the Court of Appeal dismissed the application. No reasons were advanced by the single judge for the dismissal.

Aggrieved by the single judge's decision, the applicants filed an application to discharge or vary the order of the single judge. The application came before the Full Court for hearing on 11^th November 2015, the same date set for the hearing of the appeal. The applicants argued, inter alia, that section 32(3) of the Eastern Caribbean Supreme Court (Dominica) Act ("Supreme Court Act")1 allows the Court of Appeal to re-examine the two interlocutory orders which denied the applicants permission to amend the defence, notwithstanding that they did not appeal the interlocutory orders. The applicants contend however that the single judge's refusal of their application to further amend the notice of appeal denied the Court this opportunity.

Held: dismissing the application to vary or set aside the order of a single judge and ordering costs to First Caribbean, such costs to be assessed within 21 days of this order, that:

• 1. The grant or refusal of an application to amend involves the exercise of the court's discretion. In exercising that discretion, the overriding objective, with its emphasis on enabling the court to deal with cases justly, is of the utmost importance, but the just disposal of a case is not reserved only for the party seeking amendment. The court must consider all parties and has to perform a balancing act as it seeks to strike a fair balance. The factors relevant to doing so depend on the facts of the

  case and as such cannot be exhaustively listed. However, they are likely to include the history as regards the amendment and an explanation as to why it is being made late; the prejudice which will be caused to the applicant if the amendment is refused; the prejudice which will be caused to the opposing party if the amendment is allowed; and whether the text of the amendment is satisfactory in terms of clarity and particularity.

  Brown and others v Innovatorone PLC [2011] EWHC 3221 (Comm) at para. 14 applied.

• 2. There is a heavy burden on a party making a very late application to amend. An explanation for the lateness is called for and the court must consider the consequences for the opposing party. Where an amendment imperils a trial date which has been fixed, this is a significant factor to put into the scale. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to weigh heavily against the grant of permission. In the present case, the application to amend the amended notice of appeal was filed late – approximately 5 weeks before the date set for the hearing of the appeal – and the lateness of the application jeopardised the hearing date of the appeal. In the circumstances, it was incumbent on the applicants to provide a good explanation for the delay and they failed to do so.

  Brown and others v Innovatorone PLC [2011] EWHC 3221 (Comm) at para. 14 applied; Swain-Mason and others v Mills & Reeve LLP [2011] EWCA Civ 14 applied; Rahan Ali v Abu Bakar Siddique [2015] EWCA Civ 1258 at para. 45 and 46 referred; Quah Su-Ling v Goldman Sachs Internaitonal [2015] EWHC 759 (Comm) referred; John Lawrence Monks v National Westminster Bank PLC [2015] EWHC 1172 (Ch) referred.

• 3. When considering the competing arguments of prejudice to parties to an application for amendment, the prejudice to the amending party in not being able to advance its amended case is a relevant factor, but is only one of the factors to be taken into account by the court in reaching a conclusion. Moreover, when, as in the case at bar, the prejudice is as a result of the amending party's own making, such a consideration is much less important in the court's balancing exercise. In this case, the proposed amendments would have resulted in a completely new defence compared to the pleaded defence on which the case was tried. The effect would be a new trial with the attendant costs and delay resulting in prejudice to First Caribbean. These important factors, coupled with the unexplained lateness of the application, acted against the Court exercising its discretion in favour of granting the application to amend.

  CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] 1345 (TCC) at para. 19 applied; Swain-Mason and others v Mills & Reeve LLP [2011] EWCA Civ 14 applied; Archlane Limited and Johnson Controls Limited and Another [2012] EWHC B12 (TCC) applied; Wani LLP v Royal Bank of Scotland plc and another [2015] EWHC 1181 (Ch) at para. 65 applied.

• 4. The law in relation to compensation in costs to a prejudiced party is clear. The court will not discount prejudice to a party on the basis that the party could be compensated in costs. The court is enjoined to consider the holistic effect of the disruption. This assessment includes the impact of the disruption on the parties, as well as on efficient case management and the administration of justice. Accordingly, in this case, the applicants' position that any prejudice to First Caribbean caused by an amendment could be compensated in costs was not sustainable.

  CIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd [2015] 1345 (TCC) at para. 15 applied; Worldwide Corporation Ltd v GPT Ltd [1998] All ER (D) 667 applied; Savings and Investment Bank Ltd v Fincken [2003] EWCA Civ. 1630 at para. 79 applied.

• 5. The wording of section 32(3) of the Supreme Court Act is clear. Section 32(3) does not confer any power on the Court separate and apart from the powers conferred by section 32(1). It does not provide any free standing ground for amending a notice of appeal. It merely ensures that the Court, in exercising the plenitude of powers granted under section 32(1), is not restricted in any order it considers making by virtue of any interlocutory orders made therein. This is quite sensible, as in determining an appeal, it may be necessary for the Court to examine interlocutory orders made. This however is not synonymous with an appellant praying in aid that section for the purpose of amending a notice of appeal so as to appeal interim orders where the time for so doing has already expired and thus circumvent the rules of court governing such appeals.

  The Attorney General of Grenada v Charles David Peter (2008) 72 WIR 155 considered.

• 6. An appeal court should not interfere with a case management decision of a judge who has applied the correct principles and taken into account matters which should be taken into account and left out of account matters which are irrelevant, unless the court is satisfied that that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge. In the present case, section 32(3) of the Supreme Court Act cannot be interpreted in a manner inconsistent with the well-established jurisprudence and has to be read in accordance with that jurisprudence. Further, the Court was not dealing with an appeal from any order of the High Court but rather an application to vary or set aside the order of a single judge of the Court of Appeal. Accordingly, in the circumstances of this case, section 32(3) could not be relied on, or invoked as authority in support of the application and could not avail the applicants.

  HRH Prince...