[1] George Allert (Administrator of the Estate of George Gordon Matheson, deceased) [2] George Allert [3] Edmund Allert [4] Anthony Allert [5] Mary Glennie Allert [6] Pearl Allert Appellants v [1] Joshua Matheson [2] Madeline Matheson Respondents
| Jurisdiction | Grenada |
| Judge | Blenman JA |
| Judgment Date | 24 November 2014 |
| Judgment citation (vLex) | [2014] ECSC J1124-2 |
| Court | Court of Appeal (Grenada) |
| Docket Number | GDAHCVAP2014/0007 |
| Date | 24 November 2014 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Dame Janice M. Pereira, DBE Chief Justice
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Louise Esther Blenman Justice of Appeal
GDAHCVAP2014/0007
Mr. Alban M. John for the appellants
Ms. Kindra B. Maturine-Stewart for the respondents
Civil appeal — Interlocutory appeal — Amendment to statement of case after the first date fixed for the case management conference without leave of the court — Application to strike out — Appeal against judge's case management discretion — Whether the learned judge erred in the exercise of the case management discretion in refusing to strike out an amended defence and counterclaim — Rules 20.1 and 20.2 of the Civil Procedure 2000
The appellants ("the Allerts"), filed a claim against the respondents ("the Mathesons"), for possession of certain property they allege that their grandfather, Mr. George Matheson, had paper title to since 1938. The Allerts claim that the property was devised to their mother, and after her death, her husband, Mr. Prince Allert, gave Mr. Joshua Matheson's father, Mr. Herbert Matheson, permission to occupy the property.
On 20 th July 2012, the first respondent, Mr. Joshua Matheson, filed a defence and counterclaim and at paragraph 12 pleaded that Mr. Herbert Matheson's possession was not based on prescription either against the Allerts or their deceased mother but rather that his possession was based on the purchase of the property from the Allerts' father. On 18 th September 2012, the Mathesons filed a reply to the defence and counterclaim disputing the legality of the purported claim and also indicated that since Mr. Joshua Matheson was not relying on adverse possession or prescriptive title, he would be estopped from so doing.
On 15 th November 2012, Mr. Joshua Matheson filed an amended defence and counterclaim in which he deleted the last sentence of paragraph 12 of the defence and counterclaim, namely, that Mr. Herbert Matheson's ownership of the property is not based on any prescription against the Allerts or their mother.
The first hearing of the claim was fixed by the court for 30 th July 2012; however, on that day it was adjourned to 26 th November 2012. On 30 th July 2012, Mr. Joshua Matheson had also filed an application to have his mother, Mrs. Madeline Matheson, joined as a defendant in her capacity as the representative of Mr. Herbert Matheson. The application was heard by the learned judge on 15 th November 2012 and she ordered, inter alia, that Mrs. Matheson be joined as a defendant and that the Allerts file a re-amended defence and counterclaim by 28 th November 2012 to reflect the joinder of Mrs. Matheson. Pursuant to the order, the Mathesons filed a further amended defence and counterclaim which maintained the deletion of the last sentence of paragraph 12 of the defence and counterclaim.
The Allerts were aggrieved by this development in the proceedings and on 30 th November 2012 filed an application to strike out the amendment to the defence and counterclaim, which amendment was also repeated in the further amended defence and counterclaim. The application was refused by the learned judge. The Allerts subsequently applied to the court for leave to appeal the learned judge's decision and for a stay of proceedings, both of which were granted. This is an appeal against the decision.
Held: dismissing the appeal against the learned judge's decision and ordering that the Mathesons are to have two-thirds of the costs awarded in the court below, that:
-
1. The appellate court will only interfere with the exercise of a judge's discretion if it is satisfied that the judge either erred in principle in his or her approach, or has left out of account or taken into account some aspect that he or she should or should not have considered and as a result the decision exceeded the generous ambit within which reasonable disagreement is possible or the decision is wholly wrong. The learned judge in the court below failed to take into account all of the relevant factors in deciding whether or not to strike out the amendment to the Mathesons' defence and counterclaim. Accordingly, this Court will exercise its discretion afresh taking into account the relevant factors.
Tafern Ltd v Cameron-McDonald and Another (Practice Note) [2000] 1 WLR 1311 applied; Dufour and other v Helenair and other (1996) 52 WIR 188 followed; Enzo Addari v Edy Gay Addari, Territory of the Virgin Islands, BVIHCVAP2005/0001 (delivered 23 rd September 2005, unreported) followed; AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 applied; Stuart v Goldberg Linde (a firm) and another [2008] EWCA Civ 2 applied; Charles Osten and Company v Johnson [1942] AC 130 applied; Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 applied.
-
2. There are several factors that the court must take into consideration when deciding whether to exercise its discretion to amend a statement of case. These factors include: the justice to the parties; the legitimate expectation that the basis of a claim will not be fundamentally changed at the last minute; the adverse effect on other litigants of lost judicial time; the stage reached in the proceedings; whether the other side can be adequately compensated in costs; and whether the amendment will serve any useful purpose.
Ketteman and others v Hansel Properties Ltd [1988] 1 All ER 38 applied; Practice Direction 20(4) No. 5 of 2011 applied.
-
3. The court should be guided by the principle that amendments to a statement of case should be allowed which are necessary to ensure that the real issues which are in dispute between the parties are determined, provided that such amendments can be made without there being injustice to the other party and that the other party can be compensated in costs. In this appeal, considering all the factors, the Allerts would not suffer any injustice which cannot be adequately compensated in costs. As a result, although the learned judge did not take all of the relevant factors into consideration in the exercise of her discretion, this Court, having taken all of the relevant factors into consideration and on a proper exercise of the discretion, reached the same conclusion as the learned judge.
Clarapede & Co v Commercial Union Association (1883) 32 WR 262 applied; Charlesworth v Relay Roads Ltd and others [2000] 1 WLR 230 applied; Easton v Ford Motor Co Ltd [1993] 1 WLR 1511 applied; Ketteman and others v Hansel Properties Ltd [1988] 1 All ER 38 distinguished.
-
4. The court has a discretion whether to strike out a statement of case for noncompliance with a rule, direction or order, however, it must also consider whether there are other appropriate remedies available to it which are more proportionate. Therefore, the court may, pursuant to its general case management powers under CPR 26.1, take any other step, give any other direction, or make any other order for the purpose of managing the case and furthering the overriding objective to deal with cases justly. The decision of the learned judge in the court below to refuse to strike out the amended defence and counterclaim and instead impose a sanction of costs against the Mathesons was appropriate and proportionate in all of the circumstances of the case.
Rule 26.1(2)(w) of the Civil Procedure Rules 2000 applied; Real Time Systems Limited v Renraw Investments Ltd CCAM and Company Limited, Austin Jack Warner 2014 UKPC 6 applied; Citco Global Custody NV v Y2K Finance Inc, Territory of the Virgin Islands, BVIHCVAP2008/0022 (delivered 19th October 2009, unreported) followed.
This is an interlocutory appeal against an order of the judge in the court below in which she refused to grant an application to, among other things, strike out the amended defence and counterclaim which contains the deletion of the last sentence of paragraph 12 of the defence and counterclaim, which sentence was also deleted in paragraph 12 of the further amended defence and counterclaim.
Indeed, by order dated 23 rd May 2013 the judge ordered that:
-
(1) the defendants' further amended defence and counterclaim is not struck out; and
-
(2) the defendants to pay the claimant's costs of the application in the sum of $750.00.
The appellants ("the Allerts"), are dissatisfied with the order and applied to the judge for a stay and for leave to appeal, both of which were granted. They are now before this Court.
The respondents ("the Mathesons"), vigorously oppose the appeal and contend that the trial judge acted quite properly in refusing to strike out their amended defence and counterclaim.
The Allerts have filed several grounds of appeal. The grounds can be conveniently crystallised as follows:
-
(a) Whether the judge erred in the exercise of her discretion not to strike out the amended defence and counterclaim in which the respondents deleted the last sentence of paragraph 12 of the amended defence and counterclaim as well as the further amended defence and counterclaim.
-
(b) Alternatively, whether the judge was plainly wrong, in the exercise of her discretion.
The Allerts' claim against the Mathesons is for possession of certain property. They claim that their grandfather, Mr. George Matheson, had paper title to the property since 1938 and that he devised the property to their mother, Ms. Madonna Allert and after her death, her husband, Mr. Prince Allert, gave Mr. Joshua Matheson's father, Mr. Herbert Matheson, permission to occupy the property. The...
To continue reading
Request your trial