Hyacinth v Joseph

• Jurisdiction: Grenada
• Judge: Webster, J.A.
• Judgment Date: 20 June 2016
• Neutral Citation: GD 2016 CA 6,[2016] ECSC J0620-2
• Docket Number: GDACVAP2015/0025
• Court: Court of Appeal (Grenada)
• Date: 20 June 2016

Court of Appeal

Baptiste, J.A.; Blenman, J.A.; Webster, J.A. (Ag.)

GDACVAP2015/0025

Hyacinth

and

Joseph

Appearances:

Mr. Ruggles Ferguson for the Applicant/Intended appellant.

Mr. Darshan Ramdhani, with him, Ms. Sabrita Khan-Ramdhani for the respondent.

Civil Appeal - Striking out defence — Authority of judge to strike out defence and enter judgment in default on fixed date claim — Extension of time to appeal — Delay — Principles to consider in granting extension of time — Judges discretion — Prospects of success — CPR 26.1(k).

On 6th December 2012, the respondent, Mr. Allan Joseph, filed a fixed date claim against the applicant, Mr. Joseph Hyacinth, and two others for possession of property at Edward Street, Gouyave in the parish of St. John, and other reliefs. The claim was served on the applicant on 13th December 2012 but he did not acknowledge service. On 2nd May 2013, the respondent applied to the court below for final judgment to be entered. On the same day, the applicant filed a defence and counterclaim.

The respondent's application for judgment was heard on 23rd January 2014. The learned judge struck out the applicant's defence and counterclaim and entered judgment for the respondent on the fixed date claim. On 2nd September 2015, some 20 months after judgment was entered, the applicant applied to the Court of Appeal for an extension of time to apply for leave to appeal against the judge's order. The applicant attributed this delay to his belief that the appeal had been filed by his attorney, when in fact it had not. The application was opposed by the respondent. The matter came up for hearing before the Full Court on 25th January 2016. Subsequent to the hearing of the appeal, the parties agreed that the Court should treat the hearing of the application for an extension of time to apply for leave to appeal as the hearing of the substantive appeal.

Held:

granting the applicant an extension of time to appeal against the order of the learned judge made on 23rd January 2014; allowing the appeal and setting aside the said order; ordering that the defence and counterclaim filed by the applicant on 2nd May 2013 be deemed properly filed; ordering that the case proceed to case management and trial in accordance with the Civil Procedure Rules 2000; and ordering that the applicant pay the respondent's costs of the application to extend the time to appeal against the order of the learned judge in the sum of $ 1,000.00, that:

• 1. The court has a wide discretion under rule 26.1(k) of the Civil Procedure Rules 2000 (“CPR 2000”) to extend the time for complying with any rule, practice direction, order or direction of the court, even if the time for compliance has passed. The matters which the court will consider in the exercise of its discretion are the length of the delay; the reasons for the delay; the chances of the appeal succeeding if the extension is granted; and the degree of prejudice to the respondent if the application is granted.

  Quillen and Others v. Harney, Westwood & Riegels (No. 1)(1999) 58 W.I.R. 143 applied; John Cecil Rose v. Anne Marie Uralis Rose SLUHCVAP2003/0019 (delivered 22nd September 2003, unreported) applied.

• 2. When a claim is commenced by a fixed date claim form, the defendant does not run the risk of judgment in default of defence because that procedure is not available to the claimant. As long as the defendant files his or her defence before the court enters judgment, either on the application of the claimant or at the first hearing of the fixed date claim form, the defence is properly filed. In this case, the claim was commenced by a fixed date claim form and the learned judge did not have authority to strike out the applicant's defence and counterclaim. The defence was properly before her and it should have been considered at the first hearing of the fixed date claim form on 23rd January 2014. Consequently, the applicant had good prospects of succeeding on the substantive appeal.

  Attorney General v. Keron Matthews[2011] U.K.P.C. 38 applied.

• 3. Timelines in conducting litigation must be observed by a litigant but an attorney's error can be a good reason for missing a deadline and applying for an extension of time to appeal. However, the applicant must show that the delay was substantially due to the conduct of the attorney and litigants must show some degree of vigilance in protecting their own interest. Failing to make at least periodic enquires with an attorney can result in the court being of the view that the attorney's conduct may have contributed to the delay, but it was not the substantial reason. In this case, the applicant showed very little interest in defending himself against the respondent's claim. Accordingly, the reasons for the delay in applying for an extension of time were not sufficient to justify the long delay.

  Martin v. Chow(1985) 34 W.I.R. 379.

• 4. The court has a wide discretion to grant an extension of time to appeal when the applicant has good prospects of succeeding on appeal, even though he or she is guilty of inordinate delay without good explanation. Such applications should be dealt with justly in accordance with the overriding objective. In this case, although the applicant was late in applying and the reason for the delay, although plausible, was not acceptable, the applicant had good prospects of succeeding on the appeal and the respondent will not suffer substantial prejudice if the time for applying for permission to appeal is extended.

  Quillen and Others v. Harney, Westwood & Riegels (No. 1)(1999) 58 W.I.R. 143 applied; C.O. Williams Construction (St. Lucia) Limited v. InterIsland Dredging Co. Ltd. SLUHCVAP2011/0017 (delivered 19th March 2012, unreported); Veronica Joseph v. Alan Mark Julien/Phillip GDAHCV2010/0394 (delivered 30th January 2013, unreported) referred; ABI Bank Limited v. Mitchell Stuart and others ANUHCV2013/0733 (delivered 14th April 2015, unreported) referred.

1 Webster, J.A. [AG.]: This is an application by Mr. Joseph Hyacinth (“the applicant”) for an extension of time to apply for leave to appeal and for leave to appeal against the order of Mohammed J striking out his defence and counterclaim and entering judgment for Mr. Allan Joseph (“the respondent”) on his fixed date claim form.

BACKGROUND

2 A brief chronology of the filing of documents in the court below is sufficient to give the background to the application:

• (a) On 6th December 2012 the respondent filed a fixed date claim form against the applicant and two others claiming possession of property located at Edward Street, Gouyave in the parish of St. John, damages for trespass, mesne profits, interest and costs.

• (b) The claim form was served on the defendants on 13th December 2012. The first and third defendants did not file acknowledgments of service.

• (c) On 2nd May 2013 the respondent applied for an order that final judgment be entered against the first and third defendants they having failed to file acknowledgements of service or defences. Later in the day on 2nd May, the applicant filed a defence and counterclaim stating that he has been living on a portion of the property since 1985; relying on the provisions of the Limitation of Actions Act; [Cap. 173, Revised Laws of Grenada 2010.] and seeking a declaration that he is in possession of the portion of the property where he lives.

• (d) The respondent's application for judgment was heard by the learned judge on 23rd January 2014. She struck out the applicant's defence and counterclaim and entered judgment for the respondent in accordance with the claims in the fixed date claim form.

• (e) On 2nd September 2015 the applicant applied for an extension of time to apply for leave to appeal against the judge's order. The respondent filed a notice of opposition on 16th September 2015.

• (f) On 22nd September 2015 a single judge of the Court of Appeal sitting in chambers ordered that the application be heard by the Full Court. The application was heard by the Court on 25th January 2016.

3 It is not disputed that the judge's decision was an interlocutory order requiring leave to appeal and that the 14 day period fixed by the Civil Procedure Rules 2000 (“CPR 2000”) for applying for leave to appeal expired on 7th February 2014. The application was made on 2nd September 2015 and is therefore some 20 months out of time.

PRINCIPLES FOR EXTENDING TIME TO APPEAL

4 The court has a wide discretion under CPR 26.1(k) to extend the time for complying with any rule, practice direction, order or direction of the court even if the time for compliance has passed. The rule does not prescribe the matters that the court should take into consideration in dealing with an application to extend time, but these were established by Singh, J.A. in Quillen and Others v. Harney, Westwood & Riegels (No. 1)[(1999) 58 W.I.R. 143.] before the passing of CPR 2000. The principles in Quillen were adopted post CPR 2000 in a line of cases starting with John Cecil Rose v. Anne Marie Uralis Rose [SLUHCVAP2003/0019 (delivered 22nd September 2003, unreported).] where former Chief Justice Sir Dennis Byron set out the principles as follows “

Granting the extension of time is a discretionary power of the Court, which will be exercised in favour of the applicant for good and substantial reasons. The matters which the Court will consider in the exercise of its discretion are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if the extension is granted; and (4) the degree of prejudice to the Respondent if the Application is granted.” [At para. 2.]

5 I will now apply these principles to the facts of this case beginning with the chances of success on appeal (if time is extended to apply for leave to appeal) because of the important role that this principle plays in this appeal.

CHANCES OF SUCCESS

6 Mr. Ruggles Ferguson...