Belgravia International Bank & Trust Company Ltd Bretton Woods Corporation v Sigma Management Bahamas Ltd

• Jurisdiction: Bahamas
• Judge: Mr. Justice Isaacs, JA
• Judgment Date: 09 December 2021
• Neutral Citation: BS 2021 CA 198
• Docket Number: SCCivApp. No. 75 of 2021
• Court: Court of Appeal (Bahamas)

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 Bretton Woods Corporation

Applicants

and

Sigma Management Bahamas Ltd.

First Respondent

and

Frank R. Forbes

Second Respondent

APPEARANCES:

Mr. N. Leroy Smith with Mrs. Tara Cooper-Burnside and Mr. Jonathan Deal, Counsel for the Applicants

Mr. Raynard Rigby with Ms. Asha Lewis, Counsel for the First Respondent

No appearance by the Second Respondent

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

Duran Cunningham v Baha Mar Development Company Ltd. SCCivApp. No. 116 of 2010 considered

George Freckleton v Aston East [2013] JMCA Civ 39 considered

In Re Barrell Enterprises [1973] 1 WLR 19 applied

Jeffrey William Meeks v Victoria Marie Meeks [2020] JMCA Civ 7 considered

Taylor and another v Lawrence and another [2002] EWCA Civ 90 applied

Civil appeal — Jurisdiction to reopen a concluded appeal — Application for reconsideration — Barrell jurisdiction — Taylor and another v Lawrence and another jurisdiction — Order of the Court not yet perfected

By a majority judgment dated 18 October 2021 this Court refused the applicants' application for an extension of time within which to appeal an interlocutory decision of the Court below. The applicants now seek to have this Court reconsider its decision.

Held: application for reconsideration acceded to; extension of time granted. Costs of the application to be costs in the cause.

The applicants' application for reconsideration is based on two authorities: In Re Barrell Enterprises also known as the Barrel jurisdiction and Taylor and another v Lawrence and another. On these authorities the Court has the jurisdiction to hear and determine the application for reconsideration of its previous decision.

Having reconsidered the extension of time application, the Court is satisfied that the applicants ought to be heard on the issues raised in their proposed grounds of appeal. The applicants should be granted an opportunity to ventilate their case before the Court.

Time for filing the Notice of Appeal is extended to 30 June 2021 and, in the circumstances of this case, the respondents will be deemed to have been served on time. A Settling of the Record should be done quickly.

Mr. Justice Isaacs, JA

Judgment delivered by the Honourable

1 . By a Notice of Motion filed on 21 October 2021, the applicants seek a reconsideration of the Court's judgment which was pronounced by the Court on 18 October 2021. The application was supported by an affidavit sworn by Mr. Bruno Roberts; and was also filed on 21 October 2021.

2 . We have entered into this application because we have the jurisdiction to do so as the applicants contend. It is based on two prongs. The first prong is what is commonly called the “Barrell jurisdiction”. The name is derived from the case In Re Barrell Enterprises [1973] 1 WLR 19. This case involved a finding of contempt of court and reopening an appeal on fresh evidence; but it is relevant in the present circumstances because as Russell, LJ said:

“…For some reason, however, it appears that the order of this court dismissing the appeal had not been passed and entered. We indicated that if there might prove to be any point on the original appeal not available on the appeal from Brightman J. we would be prepared to consider whether Miss Barrell should be allowed to be treated as seeking to continue argument on the original appeal…”

and

“…When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought save in most exceptional circumstances to be able to assume that the judgment is a valid and effective one.”

He then went on to cite cases where the tribunals reconsidered their decisions before the orders were drawn up. Ultimately, the court dismissed the application.

3 . This Court relied on the Barrell jurisdiction to reverse an oral decision in Duran Cunningham v Baha Mar Development Company Ltd. SCCivApp. No. 116 of 2010. In the record dated 3 October 2012, Allen, P. stated that:

“We do not intend to hear any further arguments on the matter, but only to say that our written decision stands as the judgment in this matter. We do this pursuant to the Barrell decision which was enunciated in Re Barrell Enterprises [1972] 3 All ER 631 and affirmed by the English Court of Appeal in Stewart v Engel [2000] 3 All ER 518 which allows the reversal of a judge's decision.

The requirement that reversals should only be done in exceptional cases has been replaced by the requirement that there should be strong reasons for doing so. In this case, having thoroughly reviewed the decision of the tribunal and the evidence before him, we could not, in the interest of justice, justify our oral and extempore decision to dismiss the appeal.”

4 . The Court in Duran Cunningham was influenced in the exercise of its jurisdiction by the fact that the decision made orally had not yet been perfected. Similarly in the present case, it has not been shown that the judgment of the Court has been perfected.

5 . In Sandyport Homeowners Association Ltd v R. Nathaniel Davis SCCivApp. & CAIS No. 289 of 2014, on 25 April 2017, I had occasion to say:

“ While (speaking for myself in this regard) I am of the view that there will be those occasions when it may be necessary for the court to revisit a judgment that it has given, it must be in circumstances where it is demonstrably clear that the court has fallen into a grave or profound error, whether it is in something it considered where it ought not to have, or it failed to consider something, or it deprived a party of an opportunity to be heard…”

6 . The second prong is based on the authority of Taylor and another v Lawrence and another [2002] EWCA Civ 90. The main issue for the court's consideration was “whether the Court of Appeal has power to reopen an appeal after it has given a final judgment and that judgment has been drawn up…”. Woolf, CJ stated at paragraph 26:

“[26] Before turning to Mr Eder's argument, it is desirable to note that, while, if a fraud has taken place a remedy can be obtained, even if the...