Blaircourt Property Development Ltd v Martin et Al

• Jurisdiction: Dominica
• Judge: Stephenson, J.
• Judgment Date: 30 October 2015
• Neutral Citation: DM 2015 HC 38
• Docket Number: DOMHCV2011/235
• Court: High Court (Dominica)
• Date: 30 October 2015

High Court

Stephenson, J.

DOMHCV2011/235

Blaircourt Property Development Ltd.

and

Martin et al

Appearances:

Miss Cara Shillingford for the appellants/applicants.

Mrs. Heather Felix Evans for the respondents.

Civil Practice and Procedure - Stay of proceedings — Enforcement of Judgement — Whether the application for a stay of enforcement of judgement should be granted where both applications before the High Court and Court of Appeal were substantially the same — Duplication of proceedings — Consideration of Halsbury's Laws of England Volume 37 — Consideration of Slough Estates Ltd. v. Slough Borough Council & Anor [197] 2 All E.R. 270 — Principles in C — Mobile Services Limited v. Huawei Technologies Co. Limited BVIHCMAP 2014/007 considered — Finding that the Court of Appeal was the better court to hear the merits — Application for stay of proceedings dismissed — Section 18 of the Eastern Caribbean Supreme Court (Dominica) Act, Chapter 44:02

ORAL JUDGMENT

Stephenson, J.

1 This is an application for a stay of enforcement of judgment of the Learned Judge Thomas pending the hearing and determination of an appeal against his decision to grant damages and exemplary damages.

2 As a preliminary point, the respondents ask that the application should be dismissed as being vexatious, oppressive and an abuse of process of the court or in the alternative that the application be stayed pending the outcome of the application before the Court of Appeal.

3 The respondent to the application filed an affidavit in support of his application for a stay or dismissal of this application and in his affidavit he says that he was served with a “notice of application for variation of court order and for extension of time pursuant to the Rules 62.16 and 62.16 and 61.16A for a stay of proceedings and affidavit in support of application filed on 22nd June 2015. The documents served on the deponent were exhibited to his affidavit as “RA4”.

4 The deponent further deposed that he read the documents and understood them to mean that the applicants/appellants applied to the court of appeal for a stay of execution of the judgment and order of 22nd December 2015 which is identical to the relief being sought in the application that is before me.

5 Mr. Alexis deposed that he received a notice of hearing of the said application which is set for week commencing 9th November 2015; a copy of the said notice was also exhibited as “RA 5”.

6 I have examined the exhibits tendered by Mr. Alexis and I agree that the documents which he was served with are in fact an application by the appellants/applicants in the application before me for a stay of execution of the judgment. I have also examined exhibit “RA5” and agree that it is a notice of hearing from the Chief Registrar for the application to be heard in the week of 9th November 2015. There is no doubt that the application before the High Court and the Court of Appeal are substantially the same and there is a hearing fixed for the application to be heard by the Court of Appeal.

7 Learned counsel Mrs. Felix Evans contended that therefore there are two applications before two courts on substantially the same issue and that when such a circumstance arises it creates an inconvenience to the court. Counsel submitted that when there are questions and issues which are substantially the same, that the principle is, that it should be determined by one court only. Counsel further submitted that it would be highly inappropriate for this court to proceed to hear the application. In support of her submission Counsel made reference to Halsbury's Laws of England Volume 37 paragraph 446. Which states

“Prima facie it is vexatious and oppressive for the plaintiff to sue concurrently in two English Courts or tribunal and the court will stay the second proceedings. A defendant will not be called upon to meet in substance and in reality the same claim or charge he has already answered in earlier action. If there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of the courts, and the court will necessary stay one of the actions. The same principles apply to proceedings other than actions.”

8 Counsel also invited the court to have regard to the decisions in Slough Estates Ltd. v. Slough Borough Council & Anor (the Slough Case) [1967] 2 All E.R. 270, Thames Launches Ltd. v. Corporation of the Trinity House of Deptford Strond [1961] All E.R. 26 and The Royal Bank of Scotland v. Citrusdal Investments Ltd. [1971] 3 All E.R. 558 in furtherance of her application. Counsel submitted that in these cases the courts set out the principles that the courts ought to apply when confronted with a situation where a single party puts the substantially the same issue for concurrent determination.

9 In the Slough Case: Ungoed — Thomas, J. had this to say:

“…A stay is a discretionary remedy, as I have said to be exercised in accordance with well-established judicial principles and that includes the principle that it should not cause injustice to the plaintiffs. It has been repeatedly laid down that the jurisdiction should be exercised with the greatest caution …” (Slough Case at page 276)

10 Learned counsel Felix Evans also submitted that section 18 of the Eastern Caribbean Supreme Court (Dominica) Act, Chapter 4:02 empowers the court to direct a stay of proceedings in any cause or matter pending before it.

11 Mrs. Felix-Evans submitted that the duplication in the case...