Marinor Enterprises Ltd and Astaphan v First Caribbean International Bank (Barbados) Ltd

• Jurisdiction: Dominica
• Judge: Baptiste, J.A.
• Judgment Date: 04 April 2016
• Neutral Citation: DM 2016 CA 2
• Date: 04 April 2016
• Court: Court of Appeal (Dominica)
• Docket Number: DOMHCVAP 2013/0003

Court of Appeal

Baptiste, J.A.; Michel, J.A.; Thom, J.A.

DOMHCVAP 2013/0003

Marinor Enterprises Limited and Astaphan

and

First Caribbean International Bank (Barbados) Ltd.

Appearances:

Mr. Hugh Marshall Jr., with him, Ms. Zara Lewis instructed by Mrs. Noelize Knight-Didier for the appellants/applicants

Mr. Alick Lawrence, SC for the respondent

Civil practice and procedure - Application to vary or discharge the order of a single judge — Whether the applicant's may further amend their notice of appeal — Principles of amendments — Whether granting the amendment would be fair to both parties — Whether the appellate court may interfere with the discretionary case management decision of the lower court — Interpretation of sections 32(1) (2) (3) of the ECSCA.

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 W.I.R 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 Abdulaziz v. Apex Global Management Ltd. and another [2014] EWCA Civ 1106 at para. 21 applied; Walbrook Trustee (Jersey) Limited and others v. Fattal and others [2008] EWCA Civ 427 at paragraph 33 applied.

Baptiste, J.A.

1 This is an application to vary or discharge the order of a single judge. It arises in the context of the dismissal by a single judge of the Court of Appeal of an application to further amend a notice of appeal. Through the proposed amendment, the applicants seek to add as grounds of appeal, two interlocutory orders refusing their application to amend the defence, notwithstanding that there was no appeal against these orders.

2 In seeking to add these grounds of appeal, the applicants rely, inter alia, on section 32(3) of the Eastern Caribbean Supreme Court (Dominica) Act (“Supreme Court Act”), [Cap. 4.02, Revised Laws of the Commonwealth of Dominica 1991.] which states that ‘the powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal.’ The applicants contend that that provision should allow them the opportunity to have their further amended defence considered by the Court of Appeal, but for the single judge's denial of their application to further amend their notice of appeal. Mr. Marshall, the applicants’ counsel, posits that the effect of section 32(3) of the Supreme Court Act is to permit the Court of Appeal to reexamine the two High Court interlocutory orders which denied the applicants permission to amend the defence, notwithstanding that they did not appeal the orders. Mr. Marshall cites The Attorney General of Grenada v. Peter Charles David et al (2008) 72 W.I.R 155, as providing direct judicial authority for that proposition.

3 In Peter David, the Court of Appeal referred to section 35(3) of the West Indies Associated States Supreme Court (Grenada) Act [Cap. 336, Revised Laws of Grenada 2010.] (the equivalent to section 32(3) of the Supreme Court Act of Dominica). The Court stated at paragraph 5 of the judgment that:

‘… the effect of subsection 3 is to permit the Court of Appeal to re-examine any interlocutory order given earlier in the appeal before the court whether the same has been appealed against or not and, in the particular circumstance, permits this court to reexamine the order of the single judge.’

In that regard, Mr. Marshall urges that it is just and equitable to allow the application to amend so as to enable the applicants to fully present their amended defence as part of the grounds of appeal.

4 Mr. Marshall also takes issue with the jurisdiction of the single judge...