Christopher Stubbs Shanna's Cove Estate Company Ltd v Allan Crawford

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett, P
• Judgment Date: 25 September 2023
• Neutral Citation: BS 2023 CA 133
• Court: Court of Appeal (Bahamas)
• Year: 2023
• Docket Number: SCCivApp. No. 59 of 2020

BETWEEN

Christopher Stubbs Shanna's Cove Estate Company Limited

Applicants

and

Allan Crawford

Sharon Crawford

Respondents

BEFORE:

The Honourable Sir Michael Barnett, P

The Honourable Mr. Justice Evans, JA

The Honourable Mr. Justice Turner, JA (Actg.)

SCCivApp. No. 59 of 2020

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Civil appeal — Application for final leave to appeal to the Privy Council — Record of Appeal not prepared in accordance with rule 8 of the Bahama Islands (Procedure in Appeals to Privy Council) Order — Record of Appeal not prepared in accordance with the Court's order — Whether the conditional leave previously granted should be set aside — Whether the interest of justice requires that an extension of time to prepare the Record be granted

Conditional leave to appeal this Court's judgment dated 13 January 2022 was granted on 4 May 2022. The applicants sought final leave. The application was resisted on the basis that the Record of Appeal had not been prepared in accordance with rule 8 of the Bahama Islands (Procedure in Appeals to Privy Council) Order (“the Privy Council Rules”). Rather than setting aside the grant of conditional leave, the Court extended the time for the appellants to prepare the Record by 60 days.

At the expiration of that period, the applicants, again, applied for final leave. The application was, again, resisted by the respondents for the same reason; the Record had not been prepared in accordance with the Privy Council Rules. The Court extended the time to allow the applicants to properly prepare the Record and adjourned the application for final leave. Prior to the adjourned hearing of the application, the applicants sought an extension of time within which to prepare the Record.

The issue to be determined by the Court is whether, in the circumstances of this case, the Court should accede to the request for an extension of time to comply with its order with respect to the preparation of the Record.

Held: extension of time granted to prepare the Record of Appeal. Final leave is also granted. The applicants are given one week to make submissions on why they should not be ordered to pay the respondents' costs of the hearings of the final leave application.

The applicants are out of time by 6 days. It is clear that the fault is with the applicants' lawyers and not with the applicants themselves. The respondents can show no prejudice by an extension of time being granted.

As egregious is the conduct of the applicants' lawyer, the Court is of the view “that the interest of justice is not served by setting aside the conditional leave granted; but rather by extending the time for the preparation of the record”.

Rodriquez Jean Pierre v R [2023] UKPC 15 considered

APPEARANCES:

Mr. Carlton Martin, Counsel for the Applicants

Mr. Kahlil Parker, KC with Mrs. Giahna Soles-Hunt, Ms. Roberta Quant and Ms. Lesley Brown, Counsel for the Respondents

Sir Michael Barnett, P

Judgment delivered by the Honourable

1 . On 13 January 2022 this Court dismissed an appeal by the applicant Christopher Stubbs and Shanna's Cove Estate Company Limited against a judgment by Charles, J. (as she then was) dated 30April 2020.

2 . On 24 January 2022 the applicants sought conditional leave to appeal to His Majesty in Council the judgment of the court dismissing their appeal.

3 . On 4 May 2022 the Court granted the applicants conditional leave to appeal. One of the conditions was that:

“ …within 90 days from the date hereof, the applicants and each of them shall take the necessary steps for the purpose of procuring the preparation of the record and the dispatch thereof to England..”.

4 . On 6 September 2022, the applicants sought final leave to appeal to the Privy Council. In an Affidavit of Compliance, they said that the Record of Appeal was filed on 28 July 2022. The application for final leave was resisted on the basis that the Record of Appeal had not been prepared in accordance with rule 8 of the Bahama Islands (Procedure in Appeals to Privy Council) Order (“the Privy Council Rules). The respondent sought an order revoking the conditional leave. It was a hotly contested application.

5 . In its judgment dated 25 January 2023 the Court said:

“ 15. On the evidence, the Record was not prepared in accordance with Rule 8 of the Privy Council Rules. Indeed, it appears as if the Record was prepared without regard to Rule 8. As I said earlier, the primary responsibility for preparing the Record is that of the appellant. They have not complied with the conditions imposed on 4 May 2022 granting them conditional leave.”

6 . The Court did not revoke the conditional leave. Instead, it said:

“ 22. In the circumstances of this case, in my judgment, the interest of justice is not served by setting aside the conditional leave granted; but rather by extending the time for the preparation of the record for another sixty days from the date of this judgment. This will enable the parties to carry out the preparation of the Record in accordance with Rule 8 of the Privy Council Rules, as set out in this judgment.

23. In doing so, the parties and their counsel should bear in mind that the Record should only include documents that are relevant and necessary to determine the issues raised on the appeal to the Privy Council. Not every document that was before the trial judge (or indeed this Court) is necessary or relevant to the appeal.

24. As noted above, the Beadle affidavit demonstrates that the state of the Record was in total disarray. The appellants, having not rebutted the contents of the Beadle affidavit by filing an affidavit in reply, must be taken to accept this fact. The Court records its disapproval of the process employed by the appellants in the preparation of the Record. Nevertheless, having decided that the proportionate response to that state of affairs by the Court is to extend the time for the appellants to prepare a proper Record rather than setting aside the Order granting conditional leave for non-compliance, the Court expects the appellants to now fully comply with the Privy Council Rules relative to the preparation of the Record.”

7 . On 18 July 2023, the application for final leave again came before the Court. Counsel for the respondents again objected to the grant of final leave because he complained that the Record was again not prepared in accordance with the Privy Council Rules as critical documents were still not contained in the Record prepared by the applicants.

8 . At that hearing the following exchange took place:

“ MOREE, JA: What I understand you to be saying is, you have not -- I will use your words -- you have not fully complied with the order. You have not consulted with the respondents, all right. You put your record --

MR. MARTIN: In certain aspects, yes.

MOREE, JA: You put where you are (sic) record together as you deemed appropriate. You never consulted with the respondents' counsel. You left it till the eleventh hour.

You were running out of time and so you threw the record together as best you could. And now to the extent that there is any problems, the other side could deal with that in London. Is that not what you are saying?

MR. MARTIN: Well, yes, because it is an ongoing process. When you look at the rules, it's an ongoing process. There is nothing that is defective now that cannot be cured going forward. That's what I am saying. When you look at the rules, the rules talk about the reproduction of the bundle. Reproduction of the bundle means the best bundle we can find. That is a joint process between the appellants and the respondents.

EVANS, JA

EVANS, JA: You see, I would have accepted your position better, Mr. Martin, if you had just come before us and said that, Listen, on the last occasion an order was made, we are not fully compliant. But having regard to the circumstances, we apologize for the state that we find ourself in, but we think the matter still can proceed. But --

MR. MARTIN: That would be a good thing to do.

But --

EVANS, JA

EVANS, JA: That would have been a good thing to do, but instead what you are doing is seeking to justify what you have done. Because part of the order --

MR. MARTIN: No, no, no, no, I am not seeking to justify that. I am seeking --

THE PRESIDENT: Mr. Martin --

MR. MARTIN: Very well, okay.

THE PRESIDENT: It would help if you listen.

EVANS, JA

EVANS, JA: Stop interrupting.

MR. MARTIN: Very well. All right.

EVANS, JA

EVANS, JA: You see, the fact of the matter is, part of the order that was made was that you were supposed to ensure that the Registrar become involved in resolving the matter. The Registrar gives directions including what should be in the record. You all agreed that. She also indicated that you should then meet with Mr. Parker so that there could be confirmation that what was actually put in was what was agreed. That meeting did not take place because No. 1 you said that, you know, you did not have enough time; and second, you now seem to think that the fact that you did not comply with that is of no consequence, you know.

MR. MARTIN: That is my view.

EVANS, JA

EVANS, JA: That is your view, yes, but I find it amazing that you would sit in the face of the court and say that that is of no consequence when you have not done what this court has ordered you to do.

MR. MARTIN: No, no, no, no, I -- not because...