Skybahamas Airlines Ltd v Southern Air Charter Company Ltd

• Jurisdiction: Bahamas
• Judge: Justice Isaacs, JA
• Judgment Date: 29 January 2019
• Neutral Citation: BS 2019 CA 39
• Court: Court of Appeal (Bahamas)
• Docket Number: SCCivApp. No 221 of 2017
• Date: 29 January 2019

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Sir Michael Barnett, JA (Actg.)

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

SCCivApp. No 221 of 2017

Between

Skybahamas Airlines Limited

Appellant

and

Southern Air Charter Company Limited

Respondent

APPEARANCES:

Mr. Marco Turnquest, Counsel for the Applicant

Mrs. Gia Moxey-Lockhart, with Mr. Nicholas Mitchell, Counsel for the Respondent

Gaydamak and another v UBS Bahamas Ltd and another [2006] UKPC 8 considered

Calderon v Calderon (1992) 43 WIR 159 considered

Dwight A. Major and Keva Major v The Attorney General, et al SCCrApp No. 34 of 2007 considered

Civil Appeal — Application to Restore

On 1 June 2009 an aircraft owned by JODA LLC and operated by the respondent collided with the applicant's aircraft and sustained damage. The applicant accepted liability for the incident but disputed the respondent's damages claim.

An assessment of damages was carried out and an order was made on 25 September 2017 that inter alia, Skybahamas Airlines Limited pay Southern Air Charter Company Limited damages for negligence in the amount of $497,954.22.

The applicant filed a Notice of Appeal against Registrar Newton's order. The matter was dismissed for non-appearance of the applicant or it's Counsel. The applicant seeks to have the appeal restored.

Held : the application for restoration is allowed.

[T]he Court has discretion on whether or not to order a dismissed appeal under Rule 13 be restored albeit a good and sufficient reason for doing so must be disclosed. In other words, the discretion must be exercised judicially.

The respondent argued quite convincingly that the reason given for Counsel failing to appear at the appointed time for the settling of the record fell far short of being a satisfactory explanation. While it is apparent that there was a breakdown in the internal communication process of the applicant's legal advisors' firm, we were unable to conclude that this excuse was so egregiously inadequate that the applicant should be driven from the judgment seat.

As a consequence, we considered the questions Gaydamak (Supra) called us to consider; and determined that in the interest of justice we ought to exercise our discretion in favour of restoration of the appeal; and we so ordered.

REASONS FOR DECISION

Judgment delivered by the Honourable Justice Isaacs, JA :

1 The appellant/defendant/applicant (“the applicant”) applied for their appeal to be restored after it had been dismissed as a result of an Order of the Court on 11 December 2017. On 3 July 2018 we acceded to the application to restore and promised to put our reasons for doing so, briefly. We render our reasons now.

Background

2 On 1 June 2009 a 1987 Beechcraft 190CC 19 seat aircraft owned by JODA LLC and operated by the respondent/plaintiff/respondent (“the respondent”) collided with the applicant's aircraft and sustained a modicum of damage. The applicant accepted liability for the incident; but disputed the respondent's damages claim.

3 On 24 May 2011, judgment was entered in Supreme Court Action 2010/CLE/gen01326 against the applicant. There was no admission as to liability for all heads of damages or the amounts claimed by the respondent, so the judgment provided for damages to be assessed.

4 On an assessment of damages carried out by then Registrar of the Supreme Court, Donna Newton (“Registrar Newton”) pursuant to an order of Hepburn, J dated 21 March 2011, Registrar Newton made an order dated 25 September 2017. The order said, inter alia:

• “(i) The Defendant SKYBAHAMAS AIRLINES LIMITED do pay to the Plaintiff SOUTHERN AIR CHARTER COMPANY LIMITED damages for negligence in the amount of $497,954.22, consisting of:

  • 1. Cost of Repair of aircraft: $ 76,099.22

  • 2. Diminution in Value of aircraft: $141,315.00

  • 3. Loss of Opportunity/Loss of Use of aircraft: $280,540.00

  • 4. Total Award: $497,954.22

• (ii) The Defendant SKYBAHAMAS AIRLINES LIMITED do pay to the Plaintiff SOUTHERN AIR CHARTER COMPANY LIMITED the Costs of the Assessment to be taxed if not agreed.”

5 The applicant filed a Notice of Appeal against Registrar Newton's order. In keeping with the procedure for appeals in this Court, the Registrar of the Court of Appeal, (“the Registrar”) fixed a date for the settling of the Record of Appeal, that was 11 December 2017; but no one appeared on that date on behalf of the applicant. Consequently, the matter was dismissed no doubt because the Registrar was satisfied that the applicant's lawyers, Lennox Patton, had been served with a summons advising of the appointment to settle the record and there was no reason proffered for the non-appearance of the applicant or its Counsel.

6 On 13 December 2017, the applicant filed an application by Notice of Motion to have its appeal restored. The applicant filed an affidavit sworn by Jody Lashley on 16 January 2018, in support of its Application to Restore its appeal. In it the applicant explained why there was no appearance on its behalf for the settling of the record. At paragraphs 9–11 the following appears:

• “(9) Counsel having carriage of the matter was surprised by the dismissal and the ground for the same, not having a recollection of seeing a notification of a hearing for the Settling of the Record of Appeal. She therefore investigated the matter internally within the law firm. Apparently, while a Summons To Parties By Registrar To Settle The Record had been served on Lennox Paton on 17th November 2017 at 1:02 pm. the document inadvertently was not forwarded by email to counsel having carriage of the matter, a step usually done to ensure that counsel is immediately made aware of the document and can react to it and/or book the appointment in her litigation calendar. It appears the document was received by the firm, scanned into a document database. It missed the notice of counsel. The document was subsequently placed on file.

• (10) Contributing to the situation also was the fact that counsel having carriage of the matter was travelling out of the office from 16th November 2017 through 22nd November 2017, so was not in the office when the physical Summons was served and handled by the firm.

• (11) The totality of the circumstances surrounding the dismissal was that due to an inadvertent human error or omission which resulted in a lapse in the usual functioning protocols, counsel for SkyBahamas was not aware of the Summons or that a fixture for hearing was given for the settling of the record. Consequently, counsel did not attend the court on that day and did not deal with the routine administrative matters on behalf of SkyBahamas which were set out in the Summons. In short, the failure to attend the hearing for the Settling of the Record was an...