Gregory Knight (by his lawful attorney Kent Knight) Appellant v First Caribbean International Bank Ltd Respondent v Kent Knight Appellant v Brenda Knight Respondent [ECSC]
| Jurisdiction | Grenada |
| Judge | Mitchell JA [Ag.],Don Mitchell,Justice of Appeal [Ag.] |
| Judgment Date | 08 June 2012 |
| Judgment citation (vLex) | [2012] ECSC J0608-2 |
| Court | Court of Appeal (Grenada) |
| Docket Number | HCVAP 2012/007 |
| Date | 08 June 2012 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]
HCVAP 2012/007
Mr. Derick F. Sylvester of Derick F. Sylvester & Associates for Kent Knight
Mr. Shireen J. Wilkinson of Wilkinson Wilkinson & Wilkinson for First Caribbean International Bank Limited
Ms. Giselle Whiteman for Brenda Knight
Civil appeal — Failure to comply with case management order — Extension of time to comply — Exercise of judge's discretion
A consent case management order made by the learned trial judge required that parties file specific documents, including standard disclosure, on or before 15 th February 2012. Brenda Knight failed to comply with the order and, on 17 th April, filed an extension of time to file the standard disclosure. The affidavit in support of the application was sworn to by her attorney at law, Ms. Giselle Whiteman, who gave evidence that at the material time she had to undergo a surgical procedure out of Grenada. Kent Knight opposed the application and Ms. Whiteman later filed a supplemental affidavit exhibiting medical certificates and copies of her passport evidencing her travel out of Grenada. The learned trial judge, in the exercise of her discretion, made an order granting relief from sanctions and extending time for Brenda Knight to file the standard disclosure. A written reason for that decision was not provided.
Kent Knight appealed that order on numerous grounds which included that the judge misdirected herself when she ruled that rule 26.8(1)(a) of the Civil Procedure Rules 2000 ("CPR") was complied with by Brenda Knight and that the judge failed to consider that the affidavit of Giselle Whiteman being an attorney in her own cause ought not to be considered or given the weight it was given.
A notice of opposition to the appeal was filed by First Caribbean International Bank Limited which submitted that Gregory Knight failed to pay the costs previously ordered against him on an earlier interlocutory appeal.
Held: dismissing the appeal and awarding assessed costs to be paid by Gregory Knight to First Caribbean International Bank Limited and Brenda Knight within 30 days of this order, that:
1. An appellate court will only interfere with the exercise of a judge's discretion where (i) the judge has misdirected himself or herself with regard to principles in accordance with which his or her discretion had to be exercised; (ii) where the judge in exercising his or her discretion took into account matters which ought not to have been taken into account or failed to take into account matters which ought to have been taken into account; and, (iii) where the judge's decision is plainly wrong. Pursuant to CPR Part 26, the learned trial judge has a discretion to exercise case management powers. In so doing, she considered all matters the CPR required her to consider and she exercised her discretion reasonably.
Imanagement Services Limited v Cukurova Holdings A.S. British Virgin Islands HCVAP 2007/025 (delivered 6 th October 2008) applied; Civil Procedure Rules 2000 Part 26 applied.
2. Where no transcript or reasons are made available to this Court and all parties to the case were present at the time of the making of the order, it can be assumed that oral reasons were given by the trial judge. Furthermore, it can be assumed that counsel for the appellant did not request written reasons for the decision and as such there is no basis upon which the learned trial judge's decision or the exercise of her discretion can be questioned. Accordingly the appeal must be dismissed.
IPOC International Growth Fund Limited v LV Finance Group Limited British Virgin Islands Civil Appeal No. 30 of 2006 (delivered 18 th June 2007) applied.
This is an appeal against the case management decision of the learned trial judge in this matter, the Hon. Clare Henry J, to allow an application by Brenda Knight for an extension of time to comply with a consent case management order previously made by her on 13 th January 2012. That Order provided, among other things, for standard disclosure on or before 15 th February 2012, for the filing of witness statements by the same date, and other usual matters.
On 17 th April 2012, Brenda Knight filed an application for an extension of time to file the standard disclosure, attaching a draft of it, and supporting her application by an affidavit of the same date sworn by her attorney at law, Ms. Giselle Whiteman. The explanation Ms. Whiteman gave was that she had been ill. Ms. Whiteman deposed that the failure to file the standard disclosure on time had been inadvertent, and had been due to her, close to the time in question, having to undergo a medical procedure out of the island. Subsequently, she had not been able to attend fully to filing all documents in the case.
The application was opposed by Kent Knight, and his attorney's secretary swore and filed an affidavit in support of his opposition. On 9 th May 2012, Ms. Whiteman filed a supplemental affidavit exhibiting a medical certificate from her doctor to the effect that Ms. Whiteman had had to travel to Barbados to undergo a medical procedure which could not be done in Grenada. The nature of the procedure was such that Ms. Whiteman would have suffered side effects and would have spent the majority of the three weeks following at home. Ms. Whiteman would be admitted to the General Hospital for another procedure on 9 th May 2012 and if it was successful she would be discharged on 11 th May 2012. Ms. Whiteman also exhibited copies of her passport with the relevant stamps from the Grenada and Barbados Immigration authorities evidencing her trip to Barbados.
The learned trial judge dealt with the application in Chambers on 11 th May 2012. After reading the affidavits and hearing from counsel for the parties she made an order granting relief from sanctions and extending time for 7 days for Brenda Knight to file the standard disclosure. It is this order which is appealed.
The notice of appeal filed on 18 th May 2012 was to the effect that there had been no sufficient legal basis for the granting of the relief from sanctions pursuant to rule 26.8 of the Civil Procedure Rules 2000 ("CPR"), and that Brenda Knight had failed to satisfy the requirements of CPR 26.8. The grounds of appeal were that (1) the judge misdirected herself when she ruled that ...
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