Deep Bay Ltd v Ash and Watson

• Jurisdiction: Antigua and Barbuda
• Court: Court of Appeal (Antigua and Barbuda)
• Judge: Lewis, C.J.,Gordon, J.A.,Lewis, J.A.
• Judgment Date: 15 June 1971
• Neutral Citation: AG 1971 CA 3
• Docket Number: Civil Appeal No. 1 of 1970
• Date: 15 June 1971

Court of Appeal

Lewis, C.J.; Gordon, J.A.; Lewis, J.A.

Civil Appeal No. 1 of 1970

Deep Bay Ltd.

and

Ash and Watson

Appearances:

N. Hill Q.C. (J/ca.) and L. Lockhart for the appellant

T. Hosein Q. C. (T/dad.) and Miss B. Lake for the respondent.

Practice and procedure - W.I. Associated States Supreme Court Act 1969, No. 26 s.63 — Rules of the Supreme Court Order 65, r. 27(39) — (41) — Whether court order was void for uncertainty in terms of the date when costs were to be taxed.

Practice and procedure - W.I. Associated States Supreme Court Act 1969, No. 26, s. 63 — Rules of the Supreme Court Order 65, r. 27(39) — (41) — Whether court order was premature.

Practice and procedure - W.I. Associated States Supreme Court Act 1969, No. 26, s. 63 — Rules of the Supreme Court Order 65, r. 27(39) — (41) — Whether court order was void for uncertainty and ambiguity regarding the deadline for payment.

Practice and procedure - W.I. Associated States Supreme Court Act 1969, No. 26 s.63 — Rules of the Supreme Court Order 65, r. 27(39) — (41) — Whether court order dismissing the appellant's claim was oppressively prosecuted.

Facts: Evidence revealed that although the judgment order of March 23, 1970 was precise in the deadline for payment, it was imprecise on the amount to be paid as it had not fixed the date as to when the costs were to be taxed. The exact amount to be paid was not known until March 20th, four months after the date of the order. The appellant therefore did not know exactly what was to be done to avoid the dismissal of his action.

Facts: Evidence revealed that the appellant failed to pay costs incidental to adjournment and in default of payment his claim was struck out.

Facts: Evidence revealed that the appellant secured an adjournment on the condition that the costs incidental to the adjournment be taxed and paid by the appellant to the respondent before March 23, 1970, and that in default of payment claim be struck out. The appellant failed to abide by the ruling.

Held: Appeal on this ground allowed. Judgment order of March 23,1970 declared a nullity.

Held: Although the appellant was entitled to a 14 day delay in the execution of the order commencing from the date when the Registrar issued his certificate of taxation, and though the judgment was signed before the expiration of the delay, the appellants had submitted no objections before the Registrar. Judgment was therefore not premature. This ground for appeal therefore failed.

Held: The order was not ambiguous since Order 64, Rule 3 does not apply to the facts of the present case as the payment of the costs was not prevented by the closure of the Registry Office on Sunday. The costs were to be paid to the respondent and not the court and their payment to the respondent would have been valid since at Common Law Sunday is not a dies non. This ground for appeal dismissed

Held: Under O.27, r.15 of R.S.C. the court has power to prevent abuse of its process if it feels that the prosecution of the order represents a miscarriage of justice. In this instance the adjournment on March 4th was for the appellant's convenience. The appellant had failed to establish a case for the court to exercise its discretion in his favour. Ground for appeal dismissed.

Lewis, C.J.

1 The appellant brought an action against the respondent arising out of alleged defaults in the performance of a building contract. The respondent counterclaimed. The value of the subject matter of the action exceeded $2,000,000. The case first came on for trial on the 22nd November 1968 when the respondent applied for an adjournment. The application was opposed but was granted on terms that the respondent pay the costs, the case being adjourned to a date to be fixed. The action next came on for trial on 10th November 1969. This time it was the appellant who applied for an adjournment, the respondent opposing. At that date the appellant's solicitors had ceased to represent it. The application was granted: the case was adjourned to 23rd March, 1970; the appellant was ordered to place a solicitor on record within 21 days from the date of the order, in default the appellant(s claim to be struck out with costs without further order; it was further ordered that the costs incidental to the adjournment be taxed and paid by the appellant to the respondent before 23rd March 1970, in default of payment the appellant(s claim to be struck out with costs without further order. The appellant placed a solicitor on the record on 26th November, 1969.

2 On 20th February 1970 the respondent filed its bill of costs, for same $33,000, and on the same day delivered it to the appellant(s solicitor. An appointment was made for 3rd March, but the appellant(s solicitor did not appear, having previously told the respondent(s solicitor that he had no instructions concerning the taxation. The registrar adjourned the taxation to March 12, on which day both solicitors were present and it was begun. The registrar then further adjourned it to the 14th, when it was completed No objections were brought in by either party, and on Friday, March 20th the registrar signed and issued his certificate of taxation, at $10,171.52. On the same day the respondent's solicitor by letter to the appellant's solicitor demanded payment of the taxed costs. The costs were not paid and on Monday, March 23 an “affidavit to lead judgments” was sworn and filed, and the respondent's solicitors signed and entered judgment pursuant to the judge's order of 10th November, 1969 in the following terms (omitting the recitals):

“It is this day adjudged that the plaintiff's claim be struck out and that judgment be entered for the first-named defendant on the plaintiff's claim with costs to be taxed.”

3 When the case was called on for hearing on March 23rd, counsel for the respondent drew the judge's attention to the judgment and asked that the Court proceed to hear the counterclaim. The appellant applied for an adjournment to enable a summons to set aside the judgment to be filed. The court adjourned and the summons was filed. On March 24 the appellant applied for a further adjournment so that the summons might be heard in Chambers. This application was refused, the Court ruling that in the circumstances of the case the appellant's claim stood dismissed and that the Court had no power to restore it on a summons to set aside the judgment. This Curt was informed that the summons has never been disposed of and remains on files.

4 An application by the appellant for leave to appeal against the judge's ruling was also refused.

5 On 1st May 1970 this appeal against the judgment of 23rd March was filed.

6 On the hearing of this appeal, learned counsel for the respondent took a preliminary objection that the judgment was not appealable, on the ground that it was superfluous to the order of 10th November 1969 and was not a judgment of the High Court or an order of a judge. This Court overruled the objection for reasons stated in its Ruling of 12th March 1971.

7 At the outset of his argument counsel for the appellant made it clear that the appeal is not against the exercise of the judge's discretion in ordering the anticipatory dismissal of the appellant's claim by his Order oaf 10th November. The appellant, he said,, sought to challenge the judgment of 23rd March which had been entered on the basis that the conditions for dismissal had been fulfilled.

8 An affidavit sworn by Joseph Aaron Lehrer, Managing Director of the appellant company, on 24th March 1970in support of the summons to set aside the judgment having been included by consent in the appeal record, the Court also by consent permitted affidavits in answer sworn on 13th March 1971 by Bernice Lake and David Boucaud, solicitors concerned with the a ction, to be filed and read.

9 The case for the appellant was argued on three main grounds

1

That assuming the efficacy of the order ox” 10th November to operate a dismissal of the appellant's claim it had been prosecuted in such a manner on to deprive the appellant of a reasonable opportunity of complying with it and a miscarriage of justice had occurred. 2. That the order of 10th November must be read and construed in conjunction with s. 63(2) of the West Indies Associated States Supreme Court Act, No. 26 of 1969 and Order 65 r. 27 reg. (41) of the Rules of the Supreme Courts which give a right to apply to a judge for a review of taxation of a bill of costs within 14 days of the date of the taxing officer's certificate; and the judgment was irregular and a nullity because on the 23rd March 1971 the 14 days had not elapsed. 3. Alternatively, that the order of 10th November was ambiguous and inoperative to effect a dismissal because– (a) March 22, 1971 being a Sunday the appellant could not know for certain whether the last day for payment of the costs was the preceding Saturday or the following Monday; (b) it fixed no date by which the taxation was to be completed; and the judgment of 23rd March was therefore a nullity.

10 I shall deal with these grounds in the foregoing order.

Ground 1. — Oppressive prosecution of order: miscarriage of justice.

11 Learned counsel urged that Lehrer's affidavit showed that prima facie there was a substantial issue between the parties to be tried on the merits, and the appellant was always anxious that that issue should be tried; that the assets of the appellant were in the hands of the respondent and on March 23 the appellant held no assets available such as would enable it to comply with the order; that the Managing Director, who, the respondent knows, lives in New York, only became aware of the amount of the taxed costs on 23rd March, when he immediately assigned to the appellant a judgment debt of $63,593.76 which he held against the respondent, to enable it to set off this amount against the taxed costs. Counsel submitted that the order of 10th November...