Keithrell Hanna v Wendy Willis Johnson
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Jones, JA |
| Judgment Date | 22 September 2022 |
| Neutral Citation | BS 2022 CA 124 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCivApp. No. 61 of 2022 |
The Honourable Mr. Justice Jones, JA
The Honourable Mr. Justice Evans, JA
The Honourable Madam Justice Bethell, JA
SCCivApp. No. 61 of 2022
IN THE COURT OF APPEAL
Application for Certification of a Point of Law — Public Importance — Application for Extension of Time — Second Appeal — Section 21(1) of the Court of Appeal Act
On 28 March 2011, the respondent applied for a judgment in default of defence against the applicant. Following the default judgment, the parties sought an assessment of damages. The applicant later applied for an interim payment of $750,000.00. Assistant Registrar Toote heard and refused the interim payment application. The applicant appealed the decision. On 28 th January 2022, Justice Forbes overturned the decision of Assistant Registrar Toote and awarded an interim payment of $66,904.23. The applicant sought to appeal to this Court, which the judge refused on 25 March 2022. The applicant now brings an application before the Court of Appeal for certification on a point of law and an application for an extension of time for leave to appeal. The respondent filed a preliminary objection. On 23 June 2022, after hearing the arguments, the Court reserved its decision.
Held: The application is dismissed with costs for the respondent to be taxed if not agreed.
The applicant contends that the judge's departure from the principles in the Court of Appeal decision in Ruffin and the English Court of Appeal decision in Pugh reflected in the judgment marks a troubling precedent that ought to be clarified by this Court. It is trite that the departure, by a Supreme Court Judge, from clear authority emanating from this Court cannot create a precedent. The learned judge fell into error in that he failed to appreciate that the causation which results in liability is different to that which leads to recoverable damages. He, in our view, misconstrued the binding authority which emanated from this Court on the issue.
The judge's departure from the decisions in Pugh and Ruffin on causation in an assessment of damages after a default judgment (which has not been set aside) is clearly an error and cannot make the point a matter of general public importance. The issue is clear, and in our view, requires no clarification other than what is contained in this ruling. We, therefore, agree with the judge that the point of law to which the applicant seeks certification is not of general public importance and decline to certify the question raised by the applicant. Having regard to our conclusion on this issue, the applicant has failed to satisfy the proviso to Section 21 (1) of the Court of Appeal Act, so there can be no appeal. For that reason, it is unnecessary to consider an application for the extension of time to appeal.
American Life Insurance Co. v. National Insurance Board [1984] BHS J. No. 26 considered
Fund Haven Limited et anor v. The Executive Director of the Securities Commission of The Bahamas, [2021] UKPC 11 considered
Pugh v Cantor Fitzgerald International [2001] EWCA Civ 307 considered
Ruffin Crystal Palace Limited v. Laniccini Brathwaite [2013] 1 BHS J. No. 65 considered
Turner and others v. Turner and others [2013] 2 BHS J. No. 52 considered
Mr. Adrian Hunt for the Applicant/Intended Appellant
Mr. Paul Wallace-Whitfield for the Intended Respondent
Judgment delivered by the Honourable Mr. Justice Jones, JA
This is an application by Keithrell Hanna, (“the applicant”) for certification of a second appeal from the judgment of Forbes J, (“the judge”) in the Supreme Court and for an extension of time for leave to appeal the judgment. The judge allowed an appeal against the decision of Assistant Registrar Renaldo Toote (“the assistant registrar”) and awarded an interim payment of $66,904.23 (“the interim payment”) to Wendy Johnson (“the respondent”). The judge found that causation was no longer a live issue as there was; a judgment in default of defence; no application to set it aside; and the assessment of damages had already begun.
The respondent entered judgment in default of defence against the applicant on 28 March 2011. Following the default judgment, the parties entered an assessment of damages. The applicant made no request to set aside the default judgment. At the last hearing of the assessment, Dr Edward Lazzarin (the respondent's medical expert) was being cross-examined by counsel for the applicant. The applicant applied for an interim payment of $750,000.00 as the assessment had to be adjourned. The assistant registrar who heard the application refused the interim payment application.
On appeal, the judge overturned the assistant registrar's ruling and awarded the respondent an interim payment of $66,904.23. The essence of the applicant's argument before the assistant registrar and the judge was that causation was still to be decided before any award for interim payment. Further, the applicant argued the application for interim payment amounted to an abuse of process by the respondent for two reasons. First, the parties were still engaged in the assessment of damages. Second, the respondent's medical expert, who examined the respondent, said the accident did not cause the respondents' injuries. The judge ruled the default judgment settled liability and causation, so the applicant could not properly argue about causation during the assessment of damages.
The applicant sought certification for a further appeal to this Court, which the judge refused on 25 March 2022. The applicant now brings this application before this Court for certification. But first, the respondent filed a preliminary objection to the certification application.
Mr Paul Wallace-Whitfield, (“Counsel for Intended Respondent”) filed a preliminary objection in the following terms.
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1. The question which the Intended Appellant/Defendant would have the Court certify as being of public importance is not a question of law solely, nor is it of public importance;
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2. The Intended Appellant's Notice of Appeal Motion has been filed and served in breach of Rule 11 (1), The Court of Appeal Rules inasmuch as the Order being appealed from is an interlocutory one and that Appeal ought to have been filed and served within 14 days of the date of that Order;
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3. The Intended Appellant/Defendant's approach to his application is to treat it as the substantive appeal and not as an Extension of Time application, which it ought to be in the circumstances of the case,
The applicant's notice of motion before this Court appears below.
TAKE NOTICE that the Court of Appeal will be moved so soon as Counsel can be heard on behalf of the above-named Intended Appellant (Defendant) on an application pursuant to section 21(1) of the Court of Appeal Act for certification for a further appeal from the whole of the judgment of His Lordship, the Honourable, Mr. Justice Andrew Forbes, given on the 28” day of January, A.D., 2022 (“the Judgment”), wherein the learned Judge: (1) allowed the Respondent's Notice of Appeal filed 24 June 2021 against the decision of Assistant Registrar Renaldo Toote denying the Respondent's application for an interim payment and (2) awarded an interim payment of $66,904.23 (“the Interim Payment”, having found that a Judgment in Default entered by the Intended Respondent (Plaintiff) precluded and/or was a bar to causation being a live issue in dispute in a subsequent Assessment of Damages (‘the Assessment”), which had been commenced but not pursued to completion, or at all by the Respondent
AND FURTHER AND/OR ALTERNATIVELY on an application pursuant to Rules 9 and 12(1) of the Court of Appeal Rules for an extension of time to appeal against the Judgment, and a stay of the Judgment pending the determination of this application and any appeal, subject to their Lordships acceding to this application for certification.
Then the point of law for certification is in the following terms.
AND FURTHER TAKE NOTICE that the point of law for which the Intended Appellant seeks certification is whether:
“A Default Judgment which provides that damages are to be assessed and is determinative as to the issue of liability for the breaches of duty complained of by a Plaintiff precludes and/or is a bar to a Defendant contesting the extent to which the Plaintiff's injuries were caused by the breaches of duty which have been admitted by virtue of the Default Judgment.”
Counsel for intended respondent contended that the application for certification is in breach of Section 21 (1) of The Court of Appeal Act, Ch. 52 for two reasons. The point of law to be certified is not a question of pure law but a question of fact or a question of mixed fact and law. Second, it is not a point of public importance. This, however, is not a preliminary point. It is simply the respondent's rejection of the certification application before the Court. What this Court has to determine is whether there is an issue of law to be determined, and if so, whether it is of public importance. In order to do this, we have to hear the certification application and make that determination.
Counsel for the respondent also contends that the application is in breach of the Court of Appeal, Rule 11(1) which requires that a Notice of Appeal should be filed and served by the appellant upon the parties. He says that this was not done. Frankly, this is irrelevant to the issue. There is no Notice of Appeal filed in this case. The application is for certification under section 21...
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