Archibald Minnis v Henry Taylor
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett,Sir Brian Moree, CJ,Mr. Justice Isaacs, JA |
| Judgment Date | 06 August 2020 |
| Neutral Citation | BS 2020 CA 94 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCivApp No. 2 of 2019 |
| Date | 06 August 2020 |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, President
The Honourable Sir Brian Moree, Chief Justice
The Honourable Mr. Justice Isaacs, JA
SCCivApp No. 2 of 2019
(As representative of the estate of the late Ellison Kenneth Minnis)
(As heir-at-Law of Lauren Herbert Taylor)
and
Mr. Patrick Hanna, Counsel for the Appellant,
Mr. Rouchard Martin, Counsel for the First Respondent
Ms. Lucia Broughton, Counsel for Second Respondent
Civil Appeal — Quieting of Titles Act — Striking Out of an appeal — Application to Restore — Non-Appearance — Section 31 Court of Appeal Rules
On the 18 September, 2019 neither the appellant nor his counsel appeared when their matter was called for hearing and counsel for the respondents requested that the appeal be struck out for want of prosecution. The Court acceded and the appeal was struck out. The appellant then applied pursuant to section 31of the Court of Appeal rules to have the appeal restored.
Held: application allowed on the condition that the appellant pay the costs of the respondents in attending the hearing on the 18 September, 2019 as well as the costs of the appearance on this application to restore; cost fixed at the sum of $5,000.00 for each respondent to be paid on or before the 31 August, 2020.
per Barnett: In my judgment to simply refuse to restore the appeal would not be the appropriate exercise of the Court's wide discretion. The application to restore was made within the 21 days provided for in the Rules. The explanation for the non-appearance was that counsel was stuck in traffic. He did appear but by the time he arrived at court the matter had been struck out. The respondents can demonstrate no prejudice other than the delay in implementing the judgment.
In my judgment a more proportionate response to the misconduct in the prosecution of the appeal thus far would not be to refuse to restore the appeal but rather, to restore it upon the condition that the appellant immediately pay the costs of the respondents in attending the hearing on the 18 September, 2019 as well as the costs of the appearance on this application to restore. Order 31 (2) gives the court a wide discretion and specifically provides that it may restore “on such terms as to costs or otherwise as it may deem just”. I would fix those costs at the sum of $5,000.00 for each respondent. The costs are to be paid on or before the 31 August, 2020. If on the 1 September, 2020 those costs have not been paid, the application to restore will be deemed to have been denied and the appeal will continue to stand dismissed.
Evans v Bartlam [1937] AC considered
Gaydamak et al v UBS Bahamas Limited et al [2006] UKPC 8 applied
per Moree CJ (concurring): The procedural history of these proceedings raises issues with regard to the way in which they have been conducted on behalf of the appellant. There should be no ambivalence about the importance of complying with the Rules and procedures of this Court. The authorities on this point cited by the President and Isaacs JA are consistent, resolute and easily comprehended. Counsel and litigants in this court should govern themselves accordingly.
It would be a misapprehension to read this decision as in any way diluting the admonition stated throughout this judgment with regard to complying with the Rules and procedures of this Court. There are times when it is entirely appropriate for the court to exercise its discretion under rule 31(2) of the Court of Appeal Rules to restore an appeal which has been dismissed; and then there are other times where a party seeks to rely on that discretion to cover a careless, wanton or otherwise unacceptable disregard of the Rules. The latter is a world apart from the former and is never a basis for the exercise of the discretion under rule 31(2).
Grimshaw v Dunbar [1953] 1 QB 408 mentioned
Gaydamak et al v UBS Bahamas Limited et al [2006] UKPC 8 applied
per Isaacs JA (dissenting): it was not until the last day fixed for applying for restoration of the appeal that the application was made and no explanation was given to the Court as to why the application was not made more timeously. I acknowledge that the Court of Appeal Rules allow twenty-one days within which to appeal: Rule 31(2). However, a failure to make a more timely application in the absence of an excuse, for example, Counsel was awaiting instructions from the client who was incommunicado or in some far-flung destination making contact virtually impossible, leaves me with the sense that the applicant was not moving with the care for urgency required in the circumstances.
The behaviour of the applicant discloses a decided failure to proceed with his appeal with any degree of alacrity and with no reasonable excuse given for this slothful approach. We perceive a pattern of delay in the Court below and in this Court. It appears that Mr. Hanna failed to act with alacrity and to give this matter the attention it required.
Having considered the arguments for and against the application for restoration of the appeal and having balanced the relevant factors, I am not convinced that this is a fit and proper case in which we should exercise our discretion to accede to the appellant's application.
Gaydamak et al v UBS Bahamas Limited et al [2006] UKPC 8 considered
Grimshaw v Dunbar [1953] 1 QB 408 considered
Levine v. Barnett and others SCCivApp No. 140 of 2010 considered
Skybahamas Airlines Limited. And Southern Air Charter Company Limited SCCivApp. No 221 of 2017 mentioned
Elkind v The Private Trust Corporation Limited and others [2017] 1 BHS J. No. 107 considered
Judgment delivered by the Honourable Sir Michael Barnett, P:
I have had an opportunity to read the draft judgment of Isaacs, JA with which, I regret I differ. In his judgment he has given a full history of the case and I do not propose to repeat it.
Quite simply this is an application to restore an appeal which was struck out by the court on the 18 September, 2019 when the appellant nor his counsel appeared when the matter was called for hearing.
At the request of counsel for the respondents the appeal was struck out for want of prosecution.
When the matter came for hearing there was before the court an application to extend the time for the preparation of the Record of Appeal, although counsel for the respondents indicated that they were not aware of that application as summons was never served on them.
The appellant is seeking to have his appeal restored as it has not yet been determined, much less argued, on its merits. The explanation for the non-appearance of counsel on the 19 September, 2019 was that he was caught in traffic and by the time he arrived at court the matter had been called and struck out because of his non-appearance.
I agree with the comments made by Isaacs JA of unacceptable manner in which this appeal has been conducted, the behavior of counsel for the appellant in the prosecution of the appeal and the non-compliance of the Court of Appeal rules. All of the criticism levied by Justice Isaacs is warranted.
But this action was dismissed simply because the appellant was not present when the matter was called by the clerk of the court. It was not dismissed for non-compliance with the Court of Appeal Rules.
The issue that divides us is whether notwithstanding the behavior of the appellant's counsel the appellant should be deprived of having his appeal determined on its merits. As I have said there has thus far been no argument on the merits of the appeal. In my judgment to simply refuse to restore the appeal would not be the appropriate exercise of the Court's wide discretion.
In considering an application to set aside a default judgment, Lord Atkin in Evans v Bartlam [1937] AC said:
“The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.”
The dismissal of the appeal for want of prosecution was the exercise of the courts coercive power as a result of the failure of the appellant to appear at the court when the matter was called by the clerk. There was no consideration of the merits.
The Court of Appeal Rules provide:
“31. (1) If an appellant fails to appear when his appeal is called on for hearing, the appeal may be struck out or dismissed with or without costs.
(2) When an appeal has been struck out or dismissed owing to non-appearance of the appellant, the court may, on application by the appellant by notice of motion, supported by an affidavit, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.
(3) An application for re-entry of an appeal under this rule shall be made within twenty-one days from the date of the judgment or order sought to be set aside.”
In Gaydamak et al v UBS Bahamas Limited et al [2006] UKPC 8 an appellants' appeal was listed for hearing on 22 January 2004. The appeal was called on for hearing on that day but no-one was present on behalf of the appellants to prosecute the appeal. The appeal was struck out pursuant to r 37(1) of the Court of Appeal Rules 1965. On 6 February 2004 (some 15 days later) the appellants applied, pursuant to r 37(2), for an order that their struck-out appeal be re-entered for hearing. The Court of Appeal refused the application and the appellants appealed to the Privy Council who allowed the appeal and restored the appeal. The Privy Council said:
“[14] The correct approach to an application to re-instate proceedings in a case such as the present one is well explained, in their...
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