Icebird Ltd v Winegardner

CourtCourt of Appeal (Bahamas)
JudgeOsadebay, J.A.,Longley, J.A.
Date24 November 2006
Docket NumberCivil Appeal No. 32 of 2006

Court of Appeal

Sawyer, President; Ganpatsingh, J.A.; Osadebay, J.A.

Civil Appeal No. 32 of 2006

Icebird Limited

Mr. Michael Scott, Mr. Michael Saunders with him for the appellant.

Mr. Dywan Rodgers for the respondent.

Civil practice and procedure - Appeal — Striking out of claim — Inordinate and inexcusable delay — Delay of three years and four months after filing of defence — No satisfactory explanation for delay was given — Strength of appellant's case was not a relevant factor for consideration on the application to strike out — Appeal dismissed. (Dissenting judgment)

Osadebay, J.A.

This is an appeal by the appellant, Icebird Limited, against the decision of Lyons J given in favour of Alicia P. Winegardnar, the respondent on the 7th February, 2006 at the Supreme Court, Nassau, Bahamas. By that decision Lyons J ordered that the writ and statement of claim of the appellant in these proceedings be struck out and the action dismissed for an inordinate and inexcusable delay.


On 19th September, 2006, before the commencement of the hearing of the appeal, Mr. Michael Scott, counsel for the appellant drew the attention of the court to the fact that upon the decision of the court below being given, an application was made to the trial judge for leave to appeal the decision. It was the trial judge's view that although his decision was on an interlocutory application, it was a “final decision” and therefore no leave was required for the appeal. The application for leave to appeal was therefore not granted.


Mr. Scott states that although the appeal has been brought on that basis, out of an abundance of caution, the appellant seeks the leave of this court pursuant to rule 9 of the Court of Appeal Rules to pursue and present the appeal.


Mr. Rodgers for the respondent expressed no objection to the application and he confirms the facts as stated by Mr. Scott.


Assuming, but not deciding, that leave may be necessary to bring an appeal in such a case, and there being no objection by the respondent, we granted leave to appeal.

Background facts:


The background facts in the matter appearing in the learned judge's decision are as follows: The matter concerns two adjourning properties in the Clifton Beach area of Lyford Cay in the western part of the island of New Providence. For easy reference the two lots of land are referred to as lot No. 3 and lot No. 11. Lot No. 3 which has a water frontage is owned by the respondent, Alicia P. Winegardnar. Lot No. 11 which is on the hill top at the rear of lot No. 3 is owned by the appellant.


Sometime in 1960 an easement was granted by the respondent's predecessors in title over a certain part of land in favour of the appellant's predecessors in title granting a right of way access to Clifton Bay beach along a 50 foot wide roadway.


On 15th April, 1968, the two owners of the lots entered into a further agreement whereby the owner of lot No. 11 allowed the owner of lot No. 3 to release an area 30 feet wide along the length of the right of way from the easement created in 1960. In consideration of this the owner of lot No. 3 was to put a road constructed of crushed stone to a width of 10 feet along the length of the remaining right of way to facilitate the access to Clifton Bay beach. This roadway would accommodate small vehicle in the nature of gulf cart to get from Lot No. 11 to the beach.


Neither the appellant nor the respondent owned lot No. 11 or lot No. 3 at that time. The respondent became the owner of lot No. 3 in December, 1988.


Nothing else happened with respect to the easement save that in or about 1999 discussions took place between the appellant and the respondent. The appellant was asserting its right to the easement and was expecting the respondent to construct the crushed stone roadway. Up till that time nothing had been done by the appellant's predecessors in title with a view to getting the respondent's predecessors in title to carry out their obligation under the agreement.


On the 28th July, 2000, no agreement having been reached by the parties, the appellant commenced proceedings against the respondent seeking either compliance with the 1968 agreement or recission thereof and restoration of the 1960 agreement.


In her defence to the action filed on 26th October, 2000, the respondent pleaded that the right of way had been abandoned or, alternatively, that the claim was “barred by the statutes of limitation.”


On 20th November, 2001, approximately thirteen (13) months after the defence was filed, and sixteen (16) months after the action was commenced, the appellant amended its statement of claim.


The record of the court shows that after the amendment to the statement of claim no further steps were taken by the appellant to advance the action to trial.


By summons filed on 18th February, 2004, (3 years and 4 months after defence was filed) the respondent applied to the Supreme Court for an Order that the appellant's writ of summons be struck out and that the action be dismissed pursuant to Order 25 r. 1 (4) and Order 18 r. 19 (1) (a) (c) and (d) of the Rules of the Supreme Court (R.S.C.) and under the inherent jurisdiction of the court on the following grounds:

  • “1) The Plaintiff has failed to file and serve the necessary Summons for Directions within the time prescribed by the Rules for so doing;

  • 2) For want of prosecution, the Plaintiff having been guilty of inordinate and inexcusable delay in the prosecution of this Action;

  • 3) The Defendant is likely to be seriously prejudiced by the said delay;

  • 4) There is a substantial risk that a fair trial can no longer be had as between the parties; and

  • 5) The Plaintiff's conduct amounts to an abuse of the process of the Court and an affront to the Court's authority.”


For the purposes of the application which resulted in this appeal it is noteworthy that the only evidence proffered on behalf of the appellant is contained in the affidavit of Mr. Mike A. Klonaris, the appellant's Attorney at Law and a partner in the firm of Klonaris & Co.


In that affidavit Mr. Klonaris deposes that after obtaining carriage of this matter in or around June, 2003 he became aware that the appellant was up till that time represented by the law firm of McKinney, Bancroft & Hughes (MBH)


He contacted them and subsequently received from them relevant documents in this matter around 26th January and 30th May, 2005. He attempted to secure instructions from his client in respect of the matter.


At paragraphs 7 and 8 of his affidavit Mr. Klonaris deposed.

  • “7 … At this time however, and since the commencement of my representation, my client was actively seeking a buyer for the property to which this claim relates and was not focusing on the pursuit of this claim.

  • 8. The shares of the Plaintiff company were sold on June 23, 2005 to a new beneficial owner who currently resides in Europe and travels extensively. Consequently, I have been attending to various post-completion matters concerning the real estate purchase and have only recently been able to communicate with my client and to receive clear instructions in relation to this matter.”


In his judgment striking out the appellant's claim for inordinate and inexcusable delay Lyons J noted that in the affidavit of Mr. Klonaris filed on behalf of the appellant no “excuse” was offered to explain the delay. He found that Mr. Klonaris was quite candid and made no attempt to gloss over circumstances. Lyons J said:

  • “(15) In my judgment the delay occasioned by the plaintiff is inordinate. Order 25 rule 1 (4) is quite clear. The pleadings have closed and within one month of the close of those pleadings a summons for directions should have been brought. It was not. Thus the plaintiff really offers no excuse for having effectively sat on its hands. The affidavit of Mr. Klonaris (the plaintiffs present lawyer) is quite candid and makes no attempt to gloss over circumstances. Mr. Klonaris says that he did not receive instructions in this particular matter until June 2003. He had some difficulties with obtaining materials from the plaintiff's previous lawyers. The inference is that those lawyers were quite rightly exercising their lien over the file.

  • (16) With respect to Mr. Klonaris, I did not consider the material raised in his affidavit to offer his client any excuse. I was told that there was some change in the beneficial ownership of the plaintiff's company but this of itself cannot be considered as satisfactory excuse.

  • (17) It must also be noted that an action such as this represents significant prejudice to a defendant. This is not necessarily the prejudice in the normal manner we speak of in these types of application, but prejudice generally. Actions such as this affects the title of Lot 3. The defendant thus was severely prejudiced in that she could neither mortgage nor sell the property until this matter had been resolved. In those circumstances I am of the view that a plaintiff has an obligation to proceed with the matter with all due diligence. It is a simple enough matter. By and large the facts are agreed. It would have been a very simple matter to get the matter on for hearing before a judge particularly in respect of seeking those declaration concerning whether or not the agreement of August 1968 is still operative. I would have thought at best it would take a morning to argue.

  • (18) In my view and looking at the overall circumstances of this matter, I am persuaded to accede to the defendant's request and to strike out the plaintiffs claim for an inordinate and inexcusable delay.”

The Appeal

The appellant challenges the decision of Lyons J on the following grounds:

  • “1. The Learned Judge erred in the exercise of his judicial discretion by describing the purported delay of the Appellant in...

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