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West Indian Law Journal Article

Tuesday, 10th March 2015

Relief from Sanction, Extension of Time and the Reception of English Law in the OECS:

Is the Law in a State of Flux?

 

Merrick Ricardo Watson*

 

I. INTRODUCTION

 

The Norman Manley Law School (“NMLS”) opened its doors to its first batch of students in September 1973. Since then, the institution has produced attorneys and jurists of outstanding pedigree who have served at various levels in prestigious institutions around the globe. Most recently, NMLS has emerged as one of the most prominent mooting law schools in the world and has announced itself as a force to be reckoned with by winning the World Human Rights Moot Court Competition hosted by the United Nations Commission on Human Rights in Pretoria, South Africa, on four consecutive occasions between 2010 and 2013[1]. The calibre of NMLS graduates is perhaps most evident in their work as advocates and at the civil and criminal bars around the Caribbean and as jurists in the courts of the various states of the region, and elsewhere. It is against this background, that this article seeks to look at the development of the law in the OECS in three important areas: (a) relief from sanction; (b) extension of time; and (c) the reception of English law into the OECS.  As will be seen, the manner in which the law has developed in respect of extension of time under the OECS Civil Procedure Rules, 2000 (the “CPR”) has been intertwined with the development of the law on relief from sanctions.

 

In a material respect, it is arguable that based on the manner in which the law has progressed in the OECS, relief from sanction and the extension of time can appropriately be dealt with in this article as one topic, whereas  reception of law falls into a category of its own. To be sure, this article treats relief from sanction and extension of time as one because of their tangled evolution in the law. Against the backdrop of the 40 year anniversary of NMLS, it is conceivably more than coincidental that the decisions of the courts in the OECS which have shaped the law on relief from sanction, extension of time and the reception of English law in OECS jurisprudence, have, by and large, been influenced by distinguished jurists and advocates who are graduates of NMLS.

 

The Eastern Caribbean Supreme Court (the “ECSC”) was established in 1967 by the West Indies Associated States Supreme Court Order No. 223 of 1967.  The court consists of 9 circuits located in the 9 member states of the OECS block, namely: The Territory of Anguilla, Antigua and Barbuda, the Commonwealth of Dominica, Grenada, The Territory of Montserrat, the Federation of Saint Christopher and Nevis, Saint Vincent and the Grenadines, Saint Lucia, and the Territory of the British Virgin Islands. The Court of Appeal division of the ECSC, headquartered in Castries, Saint Lucia, operates as an itinerant court of appeal whereby the Justices of Appeal travel to each of the member states for scheduled sittings.[2] In recent times, Dame Janice Pereira who graduated from NMLS in 1981 was appointed as the first female Chief Justice of the ECSC. Her immediate predecessor Sir Hugh Rawlins is also a graduate of NMLS.

 

This article looks at the development of the law in the OECS on relief from sanction, extension of time and the reception of English law in OECS. It considers the aspects of uncertainty and confusion in the law that emerged between 2003 and 2006 pertaining to the issue of whether or not sanctions can be implied, where none are expressed in a rule of the CPR, in instances where a litigant has failed to comply with such a rule. It is ordinarily the case that the CPR sets deadlines to do various things. Where such deadlines are missed, litigants frequently seek an extension of time, for example, to file a notice of appeal or to file an application for permission to appeal, etc. As will be seen, the pre-CPR cases plainly established that the court had an unfettered discretion when considering whether or not to grant an extension of time to an unpunctual litigant. That discretion was exercised with regard to specific factors.

 

All the same, around 2003, the ECSC, apparently endeavouring to clean up the malaise in civil litigation in the OECS, moved away from the pre-CPR approach to a more rigid approach. Under the new approach, in applying its discretion to extend time to comply with a rule, practice direction or order, reliance was placed on the considerations which previously were exclusively applied to relief from sanction cases, properly so called. In this regard, it appeared that the court renounced its prior position that it had an unfettered discretion when considering whether to grant an extension of time. Instead, the court chose to fetter its discretion by examining whether a sanction should be implied into the rule that was not obeyed so that applications for an extension of time would then have to be judicially considered against the benchmark of CPR 26.8.

 

In an effort to settle the law, since 2006, the ECSC has conclusively departed from the view that relief from sanction considerations should apply to applications for extensions of time even where no sanction has been expressed for a failure to meet a deadline prescribed by the CPR. Perhaps most authoritatively, the Judicial Committee of the Privy Council (the “Board”), in a 2011 decision, settled the law on the issue and rescued it from a state of flux by a finding that where a rule in the CPR does not stipulate a sanction, a sanction cannot be implied. Therefore, relief from sanction considerations do not apply to the court’s interpretation and application of that rule.

 

In addition, the article also considers the manner in which the ECSC has dealt with the reception of English law in the OECS over the years. The reception provisions in the Eastern Caribbean Supreme Court Acts of the respective OECS member states (the “Supreme Court Acts”) are clear in as far as they allow the court to import English law when dealing with a domestic situation in which there may be a lacuna in the law in a particular area. These reception provisions are nonetheless silent on whether or not reception is to be carte blanche and inclusive of substantive law or whether it is to be restricted to procedural law only. In light of the silence in the Supreme Court Acts, it has been left to the court to decide how the reception provisions are to be interpreted and applied, and the exact scope and extent of English law which can be received.

 

Close analysis of the decisions of the court on whether the reception provisions in the Supreme Court Acts allow the reception of substantive law or procedural law only, reveals that two schools of thought emerged from the decisions of the court, viz, on the one hand, panels of the court held that the reception provisions allowed the importation of both English substantive and procedural law and, on the other hand, differently constituted panels of the court held that the reception provisions are limited to importing procedural law only. This divergence in views coming from the court left the law in an undesirable state of confusion. To make matters worse, since one panel of the court, in the order of precedence, is not strictly bound by another panel; both streams of thought ran parallel to each other as good law. Whichever stream of thought prevailed at a given sitting of the court would depend on the facts before the court or even the composition of the panel. Such was the state of the law until the court decided to embark on a wholesale review of the law, with a view to making a decisive statement on the issue in 2012. This statement has settled the debate and has rescued the law from a state of flux and returned it to a much welcomed state of certainty.

 

II. EXTENSION OF TIME AND RELIEF FROM SANCTION

 

(a)   The pre-CPR state of the law

 

Before the CPR, the court’s power to grant an extension of time to a tardy litigant was established by Order 3, Rule 5 of the Rules of the Supreme Court, 1970. By the provisions of Rule 5, the court had jurisdiction to grant an application for extension of time on such terms as it thinks fit. In Harold Simon v Carol Henry and Tracey Joseph[3], the court confirmed that this discretion was unfettered. It concluded that in exercising its unfettered discretion in cases involving applications for extension of time to apply for leave to appeal, regard must be paid to four critical factors: (1) the length of the delay; (2) the reasons for the delay; (3) the prospects of success in the substantive litigation; and (4) the degree of prejudice that would be occasioned to the respondent if the application is granted.

 

Four years after the decision in Harold Simon, a differently constituted court in Quillen and others v Harney, Westwood & Riegels (No. 1)[4] comprising of Chief Justice Dennis Byron (Ag.) (as he then was),  sitting with Justices of Appeal Satrohan Singh and Albert Redhead applied the principles established by the Harold Simon case. In delivering the unanimous decision of the court, Justice of Appeal Satrohan Singh reasoned that the unfettered discretion of the court must be exercised flexibly with regard to the facts of the particular case and with the main concern of the court being to ensure justice to both sides. In His Lordship’s view, if, on the face of it, a proposed appeal appears hopeless, an application for the extension of time for leave to appeal should be refused even though there may be good reasons for the delay in filing the application. However, if there are no substantial reasons to justify an inordinate delay, and, on the face of it, there appears to be some merit in the proposed appeal, in those instances the application should be granted. It is clear from Justice of Appeal Satrohan Singh’s analysis that the focus of the court at that time was to do justice between the parties taking into account all the four factors whilst giving greater weight to the prospect of success over the other three considerations.[5]

 

Four years after the decision in Quillen, in spite of the fact that the CPR was by then in use, the court appears to have remained true to its pre-CPR position.  This is demonstrated by its decision in John Cecil Rose v Anne Marie Uralis Rose[6] where sitting as a single judge of the court, Chief Justice Sir Dennis Byron, having discussed the four critical considerations, denied the application for an extension of time to file a notice of appeal against an order awarding one-half share of matrimonial property to the respondent. On the facts of the case, Chief Justice Byron did not give greater weight to any of the four considerations over the other because, in his view, (a) the delay of 3 months by the applicant in filing the notice of appeal was inordinate, (b) the lack of diligence on the part of the attorney for the applicant was not a good reason for the delay, (c) the proposed appeal was meritless, and (d) the degree of prejudice to the respondent, who had been waiting some 11 years for her share of the matrimonial property, was too great.

(b)   CPR 26.8 and the Overriding Objective

 

With the advent of the CPR, the court laid down clear rules governing the conduct of cases in its civil jurisdiction. Two keys provisions relevant to the discussion here formed part of the CPR: (1) Part 1- The overriding objective (hereinafter the “Overriding Objective”); and (2) Rule 26.8 – Relief from sanctions. The impetus of the Overriding Objective is that where the court interprets any of the rules in the CPR, or exercises a discretion given therein, it should do so with a view to dealing with cases justly, expeditiously and being mindful of how it allots scarce resources to litigants. CPR 26.8, in stark contrast to the pro-justice ethos and flexibility of the Overriding Objective, is more rigid and inflexible in nature, in so far as it sets out a strict procedure to be followed where a litigant seeks relief from any sanction imposed for a failure to comply with “any rule, order or direction.”

 

CPR 26.8 expressly required that applications for relief from sanction must be made promptly, and be supported by evidence on affidavit satisfying the court that: (a) the failure to comply with the rule, order or direction was not intentional; (b) the applicant has a good explanation for failure to comply; and (c) the applicant has generally complied with the rules, orders and directions of the court. In deciding whether to grant relief from sanction the factors the court must consider are (i) the effect granting leave would have on each party; (ii) the interest of the administration of justice; (iii) whether failure to comply was remedied or can be remedied within a reasonable time; whether failure to comply was due to the applicant’s legal practitioner; and (iv) whether likely trial dates can still be met if relief is granted.

 

In the circumstances, it is reasonable to conclude that the re-statement of the pre-CPR position of the law in John Cecil Rose was an unassailable indication that Chief Justice Byron, who was also on the panel in the pre-CPR decision in Quillen, was satisfied that the factors that the court should consider when faced with an application for extension of time remained the same under the Overriding Objective of the CPR as they were in the pre-CPR era. Therefore, the court’s concern in Quillen was to do justice as between the parties taking into consideration the four yardstick factors, and not whether or not the rules of court were being flouted by recalcitrant attorneys and litigants. This is not to say deliberate flouting of the rules was not, and is not, a concern for the court, but in as far as the extension of time is concerned, it is submitted that where the court decides to reprimand deliberate flouting of its rules and procedure, there is no need to take into account relief from sanctions considerations where a rule which stipulates no sanction is being considered. The court can simple demonstrate its disdain for such deliberate flouting by refusing to grant an extension of time, and by relying on the Overriding Objective in arriving at that decision.

 

(c)    The post-CPR state of the law: 2003 to 2006

 

Such was the settled state of the law as Chief Justice Byron left it until Justice of Appeal Denys Barrow, SC in a series of decisions between 2003 and 2006, with great respect, muddied the waters. Somewhat astonishingly, it appears that the clear distinction between relief from sanction and extension of time principles seemed to have been appreciated by Justice Barrow (as he then was) when he decided Kenton Collinson St. Bernard v The Attorney General of Grenada et al[7] as an acting High Court judge in Grenada. In that case, the claimant missed the deadline to file his witness statement in support of his claim against the government of Grenada for damages arising from police brutality. Witness statements are governed by CPR 29.11 which stipulates that where a witness statement is not filed and served within the time specified by the court, the witness may not be called unless the court permits. It is unarguable that this rule permits the court to sanction a defaulting litigant by disallowing him from relying on a witness statement that was not filed in compliance with the court’s order. In showing his appreciation for the fact that the rule sets out a clear sanction, Justice Barrow refused to grant relief from sanction on the basis that the application for relief was not prompt as required by CPR 26.8. In a fiery judgment, the learned judge said that:

 

“[6]      Non-compliance has continued to be commonplace under the new rules, in the daily experience of these courts. Case management orders are often flouted. The breadth of this practice may have given acceptability to it. In truth, that very acceptability stands as a reproach. Casual accommodation of non-compliance with orders is a violation of clear rules. It is a subversion of a fundamental objective of the rules which was precisely to put a stop to habitual non-compliance. The rules need to be obeyed, they need to be enforced.”

 

Apparently frustrated with the errant manner in which attorneys and litigants approached the rules and procedure of the court, Justice Barrow took this rigid approach to the Court of Appeal three years after his decision in Kenton Collinson St. Bernard when he sat as a single judge to decide the case of Ferdinand Frampton v Ian Pinard et al[8]. There, the learned Justice of Appeal had to consider an application for leave to appeal made outside the 14 day time period allowed by CPR 62.2(1) which states that: “If an appeal may be made only with the leave of the court below or the court, a party wishing to appeal must apply for leave within 14 days of the order against which leave is sought”.

 

Although CPR 62.2(1) does not express any sanctions for failure to comply, Justice of Appeal Barrow, eager to set out condign consequences for the applicant’s default, ostensibly implied a sanction in CPR 62.2(1) so as to enable him to invoke the provisions on relief from sanction set out in CPR 26.8. This marked the very first time in the OECS since the pre-CPR position, which continued into the post-CPR era with the decision of Chief Justice Byron in John Cecil Rose, where relief from sanction principles were extended to applications for extension of time which concerned a rule that did not express a sanction. While Justice of Appeal Barrow’s decision proved to be correct by default[9], his reasoning in respect of extension of time threw the law into a state of confusion which would continue for another 3 years.  

 

Importantly, the learned Justice of Appeal seemed to have relied on a decision of the English Court of Appeal in Sayers v Clarke Walker (a firm)[10]in which Lord Justice Brooke stated that the court should apply the  provisions of CPR 3.9 in England (similar to ECSC CPR 26.8)  when considering whether to extend time. Regrettably, and without commenting on the correctness of the decision in Sayers at this stage of the discussion, it is submitted that Justice of Appeal Barrow did not appreciate that Lord Justice Brooke made it quite clear in his judgment that relief from sanction considerations would only come into play in the most complex cases because, where the matter is straight forward, the court should exercise its discretion taking into account the Overriding Objective.

 

On the same day the decision in Ferdinand Frampton was delivered, the learned Justice of Appeal also delivered a decision in The Nevis Island Administration v La Copropriete Du Navire J31 et al[11] dealing with the issue of whether the applicant should be granted an extension of time within which to apply for leave to appeal. Once again, His Lordship, whilst admitting that there are no express sanctions in CPR 62.2 (1), all the same justified his decision to imply sanctions in the rule in these terms:

 

“[4] The argument in favour of relying on the criteria laid down in rule 26.8 recognizes that there is no express sanction prescribed for failing to apply for leave to appeal in time, in the way, for example, that failure to file a witness statement is visited with sanction that the witness shall not be called. However, although not expressed as such, the consequence that an intending appellant who fails to apply for leave to appeal when leave is required may not thereafter apply for leave is nonetheless a sanction. It is because the application for relief against that consequence or sanction is in essence no different in nature from the standard application for relief from an express sanction that it is appropriate, in my judgment, that the criteria prescribed in rule 26.8 should be applied.”

 

Proceeding on this premise, the learned Justice of Appeal denied the application for extension of time because, in his view, the application for relief from sanction was not made promptly and no reason for the failure to make the application promptly was advanced by the applicant.

 

This decision solidified the earlier decisions of Justice of Appeal Barrow which unfortunately convoluted the law in respect of extension of time and relief from sanctions. With respect, it is submitted that the learned Justice of Appeal ignored the obvious and simple fact that (a) Chief Justice Byron, when faced with the first post-CPR decision on extension of time, deliberately steered clear of relief from sanction considerations and applied the pre-CPR benchmarks, which are to some extent analogous to the principles to be taken into account under the Overriding Objective; and (b) the framers of the rules, if they intended sanctions to apply for non-compliance with certain of the rules, would have expressly included in those rules, such sanctions; this being the case, the fact that some rules have expressed sanctions for non-compliance and others do not, must be assumed to be a deliberate act on the part of the framers.

 

In Dominica Agricultural and Industrial Development Bank v Mavis Williams[12], Justice of Appeal Barrow gave the leading judgment in a panel of three judges (the Full Court) which legitimized his earlier decisions departing from the pre-CPR cases. If nothing else, the legitimacy of the decision stems from the fact that unlike his earlier decisions sitting as a single judge, two other justices of appeal concurred in his misguided interpretation of the CPR in respect of extension of time and relief from sanctions.[13] In this case, the Full Court had to consider the issue of whether to grant the applicant an extension of time to appeal a first instance decision in which it was found liable for wrongfully dismissing the respondent.  Justice of Appeal Barrow cited his decisions in the Nevis Island Administration and Ferdinand Frampton cases and reaffirmed his view that the principles which guide the court’s exercise of its discretion on whether or not to extend time for appealing are contained in rule 26.8 dealing with relief from sanctions.[14]

 

He goes on to state that the pre-CPR case of Quillen and the post-CPR decision in John Cecil Rose are no longer good law and should not be followed. Remarkably, the learned Justice of Appeal went further in justifying his decision to refuse to grant an extension of time by citing the decision of the English Court of Appeal in Choraria v Sethia[15]. There, the English court of Appeal had to consider whether the plaintiff’s failure to prosecute his case was an abuse of process.  The fact that this case factored into Justice of Appeal Barrow’s decision is somewhat perplexing for three reasons: (1) the learned Justice of Appeal consistently departed from more authoritative decisions from the ECSC only to apply a decision from a foreign court decided in 1998, long before the advent of the ECSC CPR and of dubious reasoning;  (2) considerations of abuse of process were never before included in the decisions of the court on whether to grant an extension of time in the pre-CPR era and up to the time of Justice of Appeal Barrow’s decision; and (3) CPR 26.8, on which he grounded all his decisions between 2003 and 2006 on whether to grant and extension of time, does not set out abuse of process as one of the criteria the court must consider when contemplating whether to grant relief from sanctions.

 

(d)   The post-2006 state of the law: removing the state of confusion

 

In the first decision of the court after the period 2003 to 2006 (the “Period of Flux”), Justice of Appeal Ola-Mae Edwards sitting as a single judge in Michael Baptiste v Yoland Bain-Joseph[16], for the first time since the CPR came into effect, sought to clarify the law by directly discussing what factors should be applied where the court considers an application for extension of time in circumstances of non-compliance with a rule which does not stipulate an express sanction. Unlike her predecessor Justice Barrow, Justice Edwards refused to imply a sanction in a rule where none was expressed. In this case, the learned Justice of Appeal had to consider, among other things, whether to grant an application to extend the time within which a litigant had to file skeleton arguments. Her Ladyship held that:

 

“[22] In the absence of any expressed sanction prescribed by any rule or order, or practice direction or other direction, which would upon default, take effect under CPR 26.7, there is no need to imply a sanction, since the case is not one of complexity requiring the ‘sophisticated approach’ advocated by Brooke L.J. The respondent has a right of appeal, and there is nothing in the language of the relevant statute or Rules which suggest that an appellant who has failed to file the skeleton argument in time is to be debarred from prosecuting the appeal. Such default appears to me to be an irregularity which may be cured by the court simply having regard to the overriding objective on an application for extension of time.”[17]

Three years after Michael Baptiste, Justice of Appeal Janice Pereira (as she then was) contributed to the court’s efforts in rescuing the law from the confused state in which it found itself as a result of the Period of Flux when she held in Carleen Pemberton v Mark Brantley[18] that where no sanction is specified for the untimely filing of a notice of appeal, the court has a broad discretion on whether or not to grant an application for extension of time. Her Ladyship observed that in exercising its discretion, the court is duty bound to give effect to the Overriding Objective which is to ensure that justice is done as between the parties. To that end, the learned Justice of Appeal reverted to first principles by applying the four considerations set out in John Cecil Rose.[19] Notably, in considering the application for extension of time, Justice of Appeal Pereira made no mention of Sayers or the cases which emerged from the ECSC during the Period of Flux such as Ferdinand Frampton, Nevis Island Administration, and Dominica Agricultural and Industrial Development Bank.

 

Undoubtedly, the most authoritative decision that has sought to remove the confusion in the law caused by the Period of Flux is the Board’s decision in Attorney General v Keron Matthews[20]. Sitting as the final court of appeal for Trinidad and Tobago, the Board had to consider whether the Trinidad and Tobago Court of Appeal was correct in its decision to imply a sanction in rule 26.7 of the Trinidad and Tobago Civil Procedure Rules. Rule 26.7 is identical in terms to CPR 26.8 in the OECS. Therefore, the decision if not binding is highly authoritative in the OECS.  It is submitted that, the better view is that the decision is binding on the ECSC for which the Board also sits as a final court of appeal. The Board said that the rule in Trinidad (similar to the rule in OECS) dealing with the time limit for filing a defence to a claim does not specify an express sanction for failure to comply. Therefore, in its view to imply a sanction where none is explicitly provided would amount to “straining the language of the rule”. On that premise, the Board held that relief from sanction considerations as set out in rule 26.7 do not apply where no sanctions have been expressed in a rule.

           

In C.O. Williams Construction (St. Lucia) Limited v Inter-Island Dredging Co. Ltd[21], Justice of Appeal Ola-Mae Edwards had to consider whether the court at first instance erred in denying an application to extend time to file a defence. The issue before the learned Justice of Appeal was similar to that before the Board in Keron Matthews. It does not appear that the Board’s decision was brought to the attention of the court as no mention was made of the Board’s decision by Justice of Appeal Edwards. Nevertheless, the learned Justice of Appeal remarked that the English case of Sayers, which undoubtedly influenced the decisions of the ECSC during the Period of Flux, does not lay down any rule requiring that an application for relief from sanction be made with an application for extension of time.

 

Her Ladyship commented that the ECSC decisions which were influenced by Sayers created a situation “which invited a rigid application of CPR 26.8 to applications for extension of time, failing to take into account the stage at which proceedings have reached; or the absence of complex circumstances in the particular case before the court”.[22] Similarly, Her Ladyship reasoned that Sayers have been taken out of context, giving rise to “misunderstandings and error in applying CPR 26.8 to all applications for extension of time”. She concluded that the criteria for granting an extension of time set out in pre-CPR cases which were cited in John Cecil Rose, especially the requirement that the court considers the prejudiced that would be occasioned to a respondent were it to grant an application for extension of time, would give effect to some of the matters to be taken into account under the Overriding Objective.[23]

 

In the most recent decision of the ECSC settling the law on extension of time and relief from sanctions, Eastern Caribbean Collective Organisation for Music Rights (ECCO) Inc. (Formerly Hewanorra Musical Society Limited HMS Inc.) v Mega-Plex Entertainment Corporation[24], Justice of Appeal Mario Michel held that in applications for extension of time, unless the case is of a complex nature like in Sayers the court is not required to apply the relief from sanctions provisions set out in CPR 26.8. His Lordship departed from the erroneous decisions of the court in the Period of Flux in these terms:

 

“[19] I am aware that I am here diverting from a path previously taken by some of my distinguished predecessors in the Court of Appeal of the Eastern Caribbean Supreme Court who have used rule 26.8 to deal with similar applications before the Court, but I am confident that in so doing I will find myself in the company of others also distinguished. More specifically, I disagree with the approach taken by Barrow JA in the cases of The Nevis Island Administration v LA Corpropriete du Navire J31 et al, Ferdinand Frampton et al v Ian Pinard et al, Dominica Agricultural and Industrial Development Bank v Mavis Williams and Beatrice Antoine v Edward Dewitt John, where he applied rule 6.8 in determining applications for extension of time for leave to appeal or to file a notice of appeal”.[25]

 

It is submitted that on the whole Justice of Appeal Michel’s decision is correct and comports with the series of post-2006 decisions which have sought to clarify and settle the law in respect of extension of time and relief from sanction. However, it is respectfully submitted that the position of His Lordship, and his sister Justice of Appeal Edwards in C.O. Williams Construction (St. Lucia) Limited, that Sayers remains good law in cases of a complex nature is highly doubtful in light of the Board’s decision in Keron Matthews. To be fair to Justices of Appeal Michel and Edwards, it does not appear that Keron Matthews was brought to their attention by counsel but  what is sure is the Board ruled that where a rule does not express a sanction, sanctions should not be implied by the court in that rule. The Board’s decision was unqualified and did not reserve any exception for complex cases. As the final court of appeal for the OECS, that decision is arguably binding and clearly leads to the conclusion that, at least on this issue, Sayers was wrongly decided and must now be banished from our jurisprudence.

 

 This conclusion is reinforced by the fact that even in the most complex of cases there is no good reason for the court not to apply the Overriding Objective when considering whether to extend time to comply with a rule, order or direction that does not express a sanction for non-compliance. To draw on the words of the Board, to imply sanctions into a rule where none are expressed not only “strain the language” of the rule in question, but runs contrary to the principles of legal interpretation: if the framers intended a rule to carry a sanction they would have drafted that rule with a sanction. Why should the complex nature of a case make it less amenable to the general principles of the Overriding Objective to do justice as between the parties?

 

III. RECEPTION OF ENGLISH LAW IN THE OECS

 

(a)   Statutory reception provisions

 

As in the case of extension of time and relief from sanction under the CPR, there has been some confusion in the ECSC jurisprudence regarding the manner in which the courts have interpreted the reception of law provisions set out in the various Supreme Court Acts. The reception provisions of the Supreme Court Acts generally resemble the following form which is found at section 11 of the Antigua Supreme Court Act:

 

“The jurisdiction vested in the High Court in Civil proceedings, and in Probate, Divorce and Matrimonial causes, shall be exercised in accordance with the provisions of this Act and any other law in operation in Antigua and Barbuda and rules of court, and where no special provision is therein contained such jurisdiction shall be exercised as nearly as may be in conformity with the law and practice administered for the time being in the High Court of Justice in England.”[26]

 

It should be said at the outset that where the term ‘reception of English law’ is used in this article reference is not being made to the historical reception or imposition of law that occurred in the Caribbean around the time the various states in the region were colonized. The historical reception of law as has been discussed by noted Caribbean legal Scholar Professor Rose Marie-Belle Antoine[27] is to be distinguished from the manner in which the term is used here; viz ‘reception of law’ is used in this article to denote the voluntary process of receiving English law into the OECS via the various Supreme Court Acts and not reception by coercion or conquest as was the common practice by the European countries which colonized the Caribbean.

 

To be clear, the reception provisions in the Supreme Court Acts were included, purportedly, to fill any lacuna in the law that may have existed in the transitional period immediately after independence from England, which began in 1962 with Jamaica, followed by Trinidad and Tobago. The rationale seemed to have been that reception provisions would allow the legislature of these newly independent states enough time to draft and implement local enactment without creating a situation where the previous laws of the colonizer was immediately repealed without any viable replacement enactment. 

 

(b)   The early cases: reception limited to procedural law only

 

The first cases from the court interpreting the reception provisions in the various Supreme Courts Acts in the OECS established clearly that the provisions allowed only for receiving English procedural law and not substantive law. As early as 1994, the court considered the issue in the case of Panacom International Inc. v Sunset Investments Ltd. and Another[28] which was an appeal from Saint Vincent and the Grenadines. In this case Chief Justice Floissac, delivering the unanimous decision of the Full Court, said that:

 

“Section 11 of the Supreme Court Act relates solely to the manner of the exercise of the jurisdiction of the High Court. It is therefore an intrinsically procedural provision. The words ‘provisions’, ‘law’ and ‘practice’ appearing in section 11 are evidently intended to be references to procedural (as distinct from substantive) law.

 

The English law intended to be imported by section 11 is the procedural law administered in the High Court of Justice in England. In enacting section 11, the legislature of St Vincent and the Grenadines could not have intended to import English substantive law nor English procedural law which is adjectival and purely ancillary to English substantive law.”

 

And so it was, 5 years later in 2000, when a differently constituted court sat to decide the appeal in Hugh C. Marshall Snr. v Antigua Aggregates Limited et al[29] they decided that the English Insolvency Rules, 1986 could be imported into Antigua and Barbuda via section 11 of the Antigua Supreme Court Act, because the local Companies Act did not include any rules governing insolvency proceedings concerning Antiguan companies. Justice of Appeal Satrohan Singh, delivering the opinion of the Full Court, gave what has now become one of the leading decisions supplementing the initial principles laid down by Chief Justice Floissac in Panacom International Inc.

 

The learned Justice of Appeal held definitively that section 11 of the Antigua Supreme Court Act did not mandate a total and slavish acceptance of the UK Insolvency Rules, 1986. All that was required by the section is that the court’s jurisdiction should be exercised as nearly as may be, in conformity with the law and practice for the time being administered in the High Court of England. In His Lordship’s view, the wording of section 11 suggests that only rules that could with convenience be used in Antigua and Barbuda should be adopted.[30] It does not go unnoticed that the Full Court did not cite any authority at all in its decision but in spite of this it is noteworthy that the Court did not include any discussion or reference to the English Insolvency Act, 1986; mention was only made of the English Insolvency Rules. One plausible inference to be drawn from this is that the court was mindful that where local substantive law exist (in this case the Antigua Companies Act) it had no jurisdiction to import the substantive law of England in the form of the English Insolvency Act. Another equally plausible inference that invites itself is that the court was acutely aware of the decision in Panacom International Inc., which it thought so trite there was no need to cite it or go into its merits.

 

(c)    2007: the year the law was placed in flux

 

Whatever the real reason for not relying on any of its previous authorities may have been, the panel of justices who decided Hugh Marshall Snr left the law in the state that they found it and did not seek to re-invent the wheel.  Unfortunately, time moved on and 7 years later, a differently constituted Full Court in Dominica Agricultural and Industrial Development Bank v Mavis Williams[31] muddied the waters, so to speak. In this case, the court had to consider whether or not it could import section 35A of the English Supreme Court Act in the Commonwealth of Dominica via section 11 of the Dominica Supreme Court Act. Section 35A of the English Supreme Court Act allowed the English courts to grant post judgment interest on awards. No such provision existed in the Dominica Supreme Court Act. Delivering the opinion of the court, Justice of Appeal Barrow once again re-invented the wheel by holding that the words ‘law and practice administered’ in England must be taken to include Acts of the United Kingdom Parliament.[32] To support the decision, the learned Justice of Appeal cited the case of Eversley Thompson v the Queen[33] in which Chief Justice Byron (as he then was) in considering whether section 3 of the Saint Vincent Evidence Act, 1988 allowed him to import English procedural and substantive law, concluded that it did.

 

It is submitted that the departure from Panacom International Inc and Hugh Marshall Snr on the basis of the decision in Eversley Thompson v the Queen was unfortunate and it is clear that on this narrow point the case was incorrectly decided. There are a couple of valid criticisms that can be made of the court’s reasoning in the decision. First, Eversley Thompson v the Queen was a criminal appeal and not a civil matter. Civil cases are the class of matters with which section 11 of the Dominica Supreme Act is directly concerned. In pellucid terms, section 11 states that the ‘jurisdiction vested in the High Court in civil proceedings and in probate, divorce and matrimonial causes…’, and so on. From these words it must be concluded that parliament intended section 11 to be used only in civil matters. That being the case, the authorities from the court that are relevant to any interpretation of section 11 must a fortiori be cases from the court sitting in its civil jurisdiction to interpret the section as was the case in Panacom International Inc and Hugh Marshall Snr. Therefore, Justice of Appeal Barrow’s reliance on Eversley Thompson was, with respect, erroneous.

 

Secondly, the provision which the court in Eversley Thompson considered was section 3 of the Saint Vincent Evidence Act, 1998 not section 11 of the Supreme Court Act. For this reason, no reliance should have been placed on the case by Justice of Appeal Barrow who had before him the task of interpreting section 11 of the Supreme Court Act. It could very well be that section 3 of the Evidence Act allowed the importation of English substantive law in Saint Vincent in respect of criminal matters but it does not stand to reason that section 11 of the Supreme Court Act can be interpreted on the platform of decisions concerning the interpretation of section 3 of the Evidence Act because they are two separate and wholly mutually exclusive legal provisions. It is submitted that it cannot be considered purely coincidental that when sitting in its civil jurisdiction, except in Dominica Agricultural and Industrial Development Bank, the court has never based any of its decisions on the interpretation of section 11 of the Supreme Court Act on Eversley Thompson. It must be that the court, when sitting in its civil jurisdiction, has been acutely mindful of the fact that Eversley Thompson is not applicable or is, at the very least, distinguishable on its own facts and the law.

 

(d)   The post-2007 period: returning the law to a settled state  

 

Three years after the decision in Dominica Agricultural and Industrial Development Bank, the court quickly returned to the principles established in Panacom International Inc and Hugh Marshall Snr when it delivered judgment in Nigel Hamilton-Smith et al v Alexander Fundora[34]. In this decision Justice of Appeal Edwards adopted the decision in Hugh Marshall Snr[35] unreservedly. The question the court had to consider was whether or not section 11 of the Antigua Supreme court Act allowed the court to import the English Insolvency Rules, 1986 and relevant practice directions which regulates appeals in insolvency proceedings in the UK. The learned Justice of Appeal held affirmatively that in the absence of local rules governing appeals in insolvency proceedings, the English Insolvency Rules could be imported with relevant modifications to suit local circumstances in Antigua and Barbuda. It is once again noteworthy that the learned Justice of Appeal did not make any mention of the importation of the UK Insolvency Act, 1986 only the Insolvency Rules.

 

In the 2012 decision of Igors Kippers et al v Stanford International Bank Limited (In Liquidation)[36], Justice Edwards had to consider the practice and procedure which governed a challenge to an order made under the Antigua and Barbuda International Business Companies Act[37] (the “IBC Act”). Consistent with her previous decisions on this issue, Her Ladyship held that in the absence of any rules supplementing the IBC Act, section 11 of the Antigua Supreme Court Act permits her to import the English Insolvency Rules, 1986. The consistency in Justice Edwards’ approach continued only a month after the decision in Igors Kippers, when she handed down a decision of the Full Court in Marlon Ho-Tack v British American Insurance Company Limited (In Judicial Management) and Cleveland Seaforth (Judicial Manager)[38]. In this case, the court had to consider whether an application made by the Judicial Manager of British American Insurance Company Limited had to be heard in public. The court applied the English Insolvency Rules, 1986 in the manner it did in Igors Kippers.

 

On the same day that Justice Edwards delivered Marlon Ho-Tack, Justice of Appeal Janice Pereira (as she then was) gave the most important decision of the Full Court in Veda Doyle v Agnes Deane[39] on the issue of whether the reception provisions permitted the importation of English substantive law as opposed to procedural law in the OECS. The importance of this decision arises from the fact that the court recognized that there had been two schools of thought on the scope of section 11 of the Supreme Court Acts. Appreciating that the divergence in these schools of thought has caused confusion in the law, the court thought it important to give a definitive statement on the issue with a view to removing any doubt as to whether English substantive law can be imported into the OECS pursuant to section 11 of the Supreme Court Acts. The court accepted that the decision in Dominica Agricultural and Industrial Development Bank departed from the unassailable and correct statement of the law set out in Panacom International Inc. It was however mindful that counsel in Dominica Agricultural and Industrial Development Bank did not bring Panacom International Inc to the attention of the court. Nevertheless, the decision goes on to adopt the principle laid down in Panacom International Inc as the law in the OECS by stating that section 11 of the Supreme Court Acts does not permit the importation of English substantive law or English procedural law which is adjectival and purely ancillary to English substantive law.

 

IV. CONCLUSION

 

In light of the discussion above, it seems to be now settled by the court that applications for extension of time to comply with a rule, order or direction of the court that do not express a sanction do not fall to be determined by the relief from sanction considerations set out in CPR 26.8. The court in exercising its discretion on whether to grant such applications is constrained to apply the Overriding Objective to do justice as between the parties. It is submitted that the Board, being the final court of appeal for the OECS, has definitively settled this issue and its decision is binding on all lower courts. To the credit of the ECSC, however, long before the Board delivered its opinion in Keron Matthews, the court had already started to rescue the law from the undesirable state in which it was placed by the cases emerging from the Period of Flux. Consequently, in answer to the question posed in the title of this article, “is the law in a state of flux?” the answer is a resounding no. Similarly, the law in respect of whether reception provisions of the Supreme Court Acts permits the importation of English substantive law is, for all intents and purposes, now settled. This is so even in spite of the fact that the Board has not yet definitively dealt with the question. Nevertheless, the trend of decisions post-2007 and culminating in the opinion in Veda Doyle demonstrates that the settled position of the court is that section 11 of the Supreme Court Acts is limited to the importation of English procedural law only but not procedural law which is adjectival or purely ancillary to English procedural law.

 

The historical development of the law in respect of extension of time, relief from sanction and the reception of English law, if nothing else, demonstrates that there has been vibrant debate and healthy disagreement among the judges who interpret and declare the law in the region (some would even argue that judges make the law on occasion, but that is for another discussion). That debate and disagreement has augured well for the strength of the jurisprudence coming from the region. What is more, it is important to be mindful that as we move forward as a wider Caribbean region, the fact that we have institutions such as NMLS which has produced top-class thinkers who feature prominently in the debate and disagreement that has resulted in such a rich jurisprudence is commendable.  Much has been said about moving towards an ‘indigenous Caribbean jurisprudence’ over the last few decades or even longer. At present, there is raging debate all around the Caribbean on whether or not Caribbean countries should move more expeditiously to institute the Caribbean Court of Justice (CCJ) as their final court of appeal and to abolish the Board. Barbados, Guyana and Belize have all forged ahead in this endeavour. With the calibre of the jurisprudence emerging from the OECS, and no doubt elsewhere in the Caribbean, the day is fast approaching where doubts as to the independence, impartiality and quality of decisions that are likely to emerge from the CCJ will be dismissed as anachronistic, short-sighted and retrogressive thinking. After 40 years at the wicket, NMLS has played its part in the impetus towards an indigenous Caribbean jurisprudence: need one look any further than at the vibrant debate that has been propelled by jurists of the pedigree of Justices of Appeal Denys Barrow, Ola-Mae Edwards and Janice Pereira (as she then was), who are all graduates of NMLS? 



* B.Sc. (Hons) (UWI, Mona); M.Sc. (UWI, Mona); LL.B. (Hons) (UWI, Cave Hill); L.E.C (NMLS); Barrister at the British Virgin Islands Law Firm of Martin Kenney & Co., Solicitors; Attorney-at-Law of the Supreme Court of Jamaica; Barrister and Solicitor of the Eastern Caribbean Supreme Court circuits in the British Virgin Islands, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Anguilla, and the Commonwealth of Dominica. The views expressed herein are personal.

 

[1] The author was a member of the history making NMLS team that won the competition for the first time in 2010. At that staging, he was also selected as the competition’s best oralist.

[2] Where the acronym ECSC is used in this article it refers, where appropriate, to the Court of Appeal division of the Eastern Caribbean Supreme Court as well; where also the word “court” is used throughout this article it refers interchangeably to the ECSC including the Court of Appeal division.

[3]  Antigua and Barbuda, Civil Appeal No. 1 of 1995 (unreported).

 

[4] [1999] ECLR 23.

 

[5] That is to say length of delay, reason for delay and the prejudice to the respondent.

 

[6] Saint Lucia, Civil Appeal No. 19 of 2013, delivered 22 September 2003.

[7] Grenada, Civil Case No. 0084 of 1999, delivered 6 April 2003.

[8] Commonwealth of Dominica, Civil Appeal No. 15 of 2005, delivered 3 April 2006.

 

[9] At paragraphs [20] and [21], Justice of Appeal Barrow saved the decision by arguing that in any event the Constitution of the Commonwealth of Dominica prevents him from granting leave to appeal a decision concerning an election petition.

 

[10] [2002] EWCA Civ 645.

[11] Saint Christopher and Nevis, Civil Appeal No.7 of 2005, delivered 3 April 2006.

[12] Commonwealth of Dominica, Civil Appeal No. 20 of 2005, delivered 18 September 2006.

 

[13] The other two judges on the panel were Justices of Appeal Michael Gordon, QC and Kenneth Benjamin (now Chief Justice of Belize).

 

[14] See paragraph [14] of the judgment.

 

[15] [1998] EWCA Civ 24.

 

[16] Grenada, HCVAP 2006/026, delivered 7 February 2008.

 

[17] Ibid. at pp. 11-12.

 

[18] Saint Christopher and Nevis, HCVAP 2011/009, delivered 14 October 2011.

 

[19] These considerations are as set out in Quillen above.

 

[20] [2011] UKPC 38.

 

[21] Saint Lucia, HCVAP 2011/017, delivered 19 March 2012.

 

[22] See paragraph 25 of the judgment.

 

[23] Ibid. at para. 28.

 

[24] Saint Lucia, SLUHCVAP 2013/0012, delivered 10 September 2013.

[25] Ibid. at p. 5.

[26] Section 11, Eastern Caribbean Supreme Court Act, Cap. 143, Laws of Antigua and Barbuda, Revised Edition (1992) as amended; see also section 11(1) of the West Indies Associated Supreme Court (Grenada) Act, Cap. 336, Revised Laws of Grenada (2010), and so on.

 

[27] Antoine, Commonwealth Caribbean Law and Legal Systems (2nd ed., 2008, Routledge-Cavendish, Oxford), pp.73-92.

[28] (1994) 47 WIR 139.

 

[29] Antigua and Barbuda, Civil Appeal no. 23 of 1999, delivered 26 June 2000.

 

[30] Ibid. p. 4.

 

[31] Commonwealth of Dominica, Civil Appeal No. 20 of 2005, delivered 29 January 2007 (not to be confused with the decision in the same case cited at n.11 above).

 

[32] Ibid. at para. 64.

 

[33] Saint Vincent and the Grenadines, criminal Appeal No. 9 of 1995, delivered 21 July 1997.

[34] Antigua and Barbuda, HCVAP 2010/031, delivered 31 August 2010.

 

[35] Ibid. at paras. 21-22.

 

[36] Antigua and Barbuda, HCVAP 2010/025.

 

[37] Cap. 222, Revised Laws of Antigua and Barbuda, 1992 (as amended).

 

[38] Antigua and Barbuda, HCVAP 2010/010, delivered 16 April 2012.

 

[39] Grenada, HCVAP 2011/020, delivered 16 April 2012.

Written by Merrick Ricardo Watson