Belgravia International Bank & Trust Company Ltd v Sigma Management Bahamas Ltd

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Mr. Justice Isaacs, JA,Madam Justice Bethell, JA,Sir Michael Barnett
• Judgment Date: 18 October 2021
• Neutral Citation: BS 2021 CA 166
• Docket Number: SCCivApp. No. 75 of 2021

IN THE COURT OF APPEAL

Before:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Isaacs, JA

The Honourable Madam Justice Bethell, JA

SCCivApp. No. 75 of 2021

Between

Belgravia International Bank & Trust Company Limited

Intended First Appellant

and

Bretton Woods Corporation

Intended Second Appellant

and

Sigma Management Bahamas Ltd.

Intended First Respondent

and

Frank R. Forbes

Intended Second Respondent

APPEARANCES:

Mrs. Tara Cooper-Burnside with Mr. Jonathan Deal, Counsel for the Intended Appellants

Mr. Raynard Rigby, Counsel for the Intended First Respondent

No appearance by the Intended Second Respondent

Civil appeal — Application for an extension of time within which to appeal — Leave to appeal — Interlocutory order — Prospects of success — Rule 11 of the Court of Appeal Rules

An interlocutory judgment in the court below was pronounced on 15 January 2021. Leave to appeal was granted on 28 May 2021, after the expiration of the 14-day time period imposed by Rule 11 of the Court of Appeal Rules. By application made on 3 June 2021 the intended appellants now seek an extension of time within which to appeal.

Held (Bethell, JA concurring, Barnett, P dissenting): Leave to appeal out of time refused. As such the issue of whether a stay should be granted falls away. Written submissions on costs to be provided by 22 October 2021.

per Isaacs, JA: On an application for an extension of time within which to appeal the Court must consider the length of the delay, the reasons for the delay, the prospects of success and the prejudice, if any, to the respondent. In the present case, the length of the delay is about four months. The reason for the delay is attributed to the length of time it took for the application for leave to appeal to be heard and determined by the judge below. This reason is not unreasonable. Regarding the prospects of success on such an application, the Court is required to carry out its own assessment on the prospect of success and not simply rely upon the assessment by the judge below. None of the proposed grounds have any prospects of success. The application for an extension of time within which to appeal is denied.

AWH Fund Ltd. v ZCM Asset Holding Co. (Bermuda) Ltd. SCCivApp. No. 170 of 2013 considered

Dale Austin v Public Service Commission [2016] JMCA Civ 46 considered

Darlene Allen-Haye v Keenan Baldwin & Anr SCCivApp. No. 186 of 2019 applied

Hugh Governey v The Financial Services Ombudsman et al [2015] 2 IR 616 considered

Junkanoo Estate Ltd. and others v UBS Bahamas Ltd (In Voluntary Liquidation) [2017] UKPC 8 considered

Kenton Collinson St. Bernard v The Attorney General of Grenada et al Civil Case No. 0084 of 1999 considered

Mega Management Ltd. v Southward Ventures Depositary Trust & Ors SCCivApp. No. 4 of 2007 considered

Morgans (a firm) v Needham [1999] Lexis Citation 15 mentioned

Navette Broadcasting v URCA BS 2020 CA 26 mentioned

Raymond Rolle v Michael Preuss SCCivApp. No. 70 of 2020 considered

Smith v Cosworth Casting Processes Limited [1997] 4 All ER 840 considered

Walbrook Trustee (Jersey) Ltd & Ors v Fattal & Ors [2008] EWCA Civ 427 applied

per Bethell, JA: The relevant factors to be considered on an extension of time application are length of the delay, reasons for the delay, prospects of success and the degree of prejudice, if any, to the intended respondent. On an application for an extension of time within which to appeal the Court of Appeal is required to conduct its own review of an intended appellant's prospects of success. In the present case the intended appeal has no prospects of success and leave to extend the time within which to appeal is refused.

AWH Fund Ltd. v ZCM Asset Holding Co. (Bermuda) Ltd. SCCivApp. No. 170 of 2013 mentioned

CM Van Stillevoldt BV v El Carriers Inc [1983] 1 All ER 699 mentioned

Darlene Allen-Haye v. Keenan Baldwin SCCivApp. No. 186 of 2019 mentioned

Derek G. Turner et al v. Edward Turner et al. SCCivApp. No. 170 of 2013 mentioned

Navette Broadcasting & Entertainment Co. Ltd. v URCA SCCivApp. No. 117 of 2019 mentioned

Raymond Rolle v Michael Preuss SCCivApp. No. 70 of 2020 mentioned

per Barnett, P: There is no ambiguity in Rule 11. Time begins to run on the date that the order of the court below is pronounced or made. If an appeal against an interlocutory order is not filed and served within 14 days of the date of the interlocutory order, an extension of time within which to appeal is required. The fact that leave was not granted until after the expiration of the 14-day time period may, in certain circumstances, be a good reason for extending the time within which to appeal. In the present case, an extension of time within which to appeal is only required because leave to appeal was not granted within the 14-day period imposed by the Court of Appeal Rules.

Time should be extended for the filing and serving the Notice of Appeal.

Abley v Dale 138 ER 519 applied

AWH Fund Ltd (in Compulsory Liquidation) v ZCM Asset Holding Company (Bermuda) Ltd BS 2014 CA 128 considered

Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 mentioned

Checkprint Limited v Versluys (1992) Lexis Citation 2142 mentioned

Ebanks v Crooks and another (1996) 52 WIR 315 considered

Junkanoo Estate Ltd. and others v UBS Bahamas Ltd. (In Voluntary Liquidation) [2017] UKPC 8 applied

Navette Broadcasting & Entertainment Co. Ltd. v The Utilities Regulation and Competition Authority BS 2020 CA 26 considered

Re Petition of Scott E. Findeisen and Brandon S. Findeisen (as Trustees of the Stephen A. Orlando Revocable Trust) [2020] 1 BHS J. No. 24 considered

Rolle v Preuss BS 2021 CA 4 applied

Secretary of State for Transport v Curzon Park Ltd and others [2021] EWCA Civ 651 applied

Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 considered

Mr. Justice Isaacs, JA

Judgment delivered by the Honourable

1 . The intended appellants filed a Notice of Motion on 3 June 2021, seeking to obtain an extension of time within which to appeal the ruling of Madam Justice Charles (“the Judge”), pronounced orally on 15 January 2021; and rendered in writing on 18 January 2021. The application for an extension of time (“EOT application”) is supported by an affidavit of Bruno Roberts, a Director of the intended first appellant and an authorized representative of the intended second appellant, sworn to and filed on 15 June 2021.

2 . On 29 July 2021, we heard the submissions of counsel; and reserved our decision. We render it now.

3 . I have read in draft the judgment of my brother, the learned President and for the reasons contained in his judgment I agree with the construction he has placed on Rule 11 of the Court of Appeal Rules (“the Rules”). It is now patently obvious that the Rules require an appellant to give notice within the time prescribed by Rule 11, being 14 days from the date the judgment or order was pronounced or made. The Court in AWH Fund Ltd. v ZCM Asset Holding Co. (Bermuda) Ltd. SCCivApp. No. 170 of 2013 did not have the benefit of the Privy Council decision in Junkanoo Estate Ltd. and others v UBS Bahamas Ltd. (In Voluntary Liquidation) [2017] UKPC 8.

4 . In the present case, we were provided with the Judge's oral reasons for granting leave to the intended appellants to appeal on an application made by Summons filed on 28 January 2021. They are contained in the transcript dated 28 May 2021, that was filed on 4 August 2021, in the Court's Registry. At page 2 line 17 the Judge said, inter alia, as follows:

“…The ground that I still think it would be necessary for the Court of Appeal to probably clarify is ground 9 which according to Mr. Rigby is embarrassment on the face of an unless order. That deals with the order being more specific or precise. I suspect that may be a good area for the Court of Appeal to give some guidance; and I wouldn't say that the ground is an embarrassment. I would leave the Court of Appeal to decide that particular ground. Ground 8 about the, stroke and the various reports to the court. I think on ground 9 alone, and not having said that the other grounds may not have merits. I think ground 9 is a suitable ground for me to give the defendants the leave to appeal to Court of Appeal. And so I don't even need to go into all the other grounds if they can prove to court at least one of the grounds warrant leave to appeal. Then the court should grant that leave. So, as I said, I would grant leave to appeal.”

The Judge granted leave for the intended appellants to appeal on one ground alone, that is, ground 9.

5 . Rule 11(1)(a) of the Rules requires a prospective appellant to file and serve a Notice of Appeal fourteen days from the date on which the judgment or order of the court below was pronounced or made: Navette Broadcasting v URCA BS 2020 CA 26 and Raymond Rolle v Michael Preuss SCCivApp No 70 of 2020.

6 . The Judge's decision was pronounced on 15 January 2021, hence the intended appellants should have filed their Notice of Motion by 29 January 2021. No Notice of Motion was filed within the requisite period. Instead, an EOT application was made on 3 June 2021, some four months late. This initiative of filing an EOT application comports with the Privy Council's decision in Junkanoo Estate Ltd. where the applicants sought special leave to appeal to the Privy Council against a decision of this Court, differently constituted, dismissing their appeal due to their failure to secure the leave of the court below to appeal against what is generally accepted to have been an interlocutory order. It appears that leave had not been sought because Mrs. Starostenko, the third defendant in the court below, had been given to understand that “until an extension of time had been obtained, she would not be in a position to seek leave to appeal.”

7 . At paragraph 8, of Junkanoo Estate Ltd., Lord Sumption outlined the...