Prince v De La Bastide et Al

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Peterkin, J.A.
• Judgment Date: 30 June 1978
• Neutral Citation: AG 1978 HC 5
• Docket Number: Appeal No. 2 of 1977
• Date: 30 June 1978

High Court

Peterkin, J.A.

Appeal No. 2 of 1977

Prince

and

De La Bastide et al

Appearances:

Dr. F. Ramsahoye for applicant

T. Hosein and Attorney-General for respondents,

S. Charles with them.

Practice and procedure - Security for costs — Extension of time.

Peterkin, J.A.

1 This is an application by summons dated 24 ^th May, 1978, to enlarge the time forgiving security for costs and for taking out all appointments necessary for settling the record under an order made on 8 ^th March last granting conditional leave to the applicant to appeal to Her Majesty in Council. The order granting conditional leave was obtained under Section 5 of The West Indies Associated States (Appeals to Privy Council) Order 1967, (No. 224 of 1967). Section 5 provides,

“5. Leave to appeal to Her Majesty in Council in pursuance of the provisions of any law relating to such appeals shall, in the first instance, be granted by the court only–

• (a) upon condition of the appellant, within a period to be fixed by the court but not exceeding ninety days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the court in a sum not exceeding £500 sterling for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of his not obtaining an order granting him final leave to appeal, or of the appeal being dismissed for non-prosecution, or of the judicial committee ordering the appellant to pay the costs of the appeal (as the case may be); and

• (b) upon such other conditions (if any) as to the time or times within which the appellant shall take the necessary steps for the purposes of procuring the preparation of the record and the despatch thereof to England as the court, having regard to all the circumstances of the case, may think it reasonable to impose.”

2 Acting under the Order in Council the court fixed a period of six weeks, and the applicant was required to deposit the sum of $2,400 as security for costs within six weeks of the date of the order. The applicant has not complied with the directions in the Order as the security for costs was not perfected within six weeks of the date of the order giving leave to appeal.

3 The present application to enlarge the time for giving security for costs is made under Section 6(b) of the Order in Council which gives to a single judge of the court power and jurisdiction,

“generally in respect of any appeal pending before Her Majesty in Council, to make such order and to give such other directions as he shall consider the interests of justice or circumstances of the case require.”

4 The applicant prays that the court will exercise its powers contained in the Order in Council to grant the relief sought in the Summons.

5 The facts giving rise to this application are contained in the affidavit in support of the Summons sworn to by Sydney Preston Christian, the first five paragraphs of which read:

• “1. I am one of the counsel for the appellant in this matter.

• 2. On 8 ^th March, 1978 the appellant obtained conditional leave to appeal to Her Majesty in Council against the judgment of this court in this cause given on 6 ^th January, 1978 and the terms of the Order are such as are contained in the order of this Honourable Court granting conditional leave to appeal.

• 3. Among the conditions in the said order, the appellant was required to deposit the sum of $2400.00 as the security for costs within six weeks of the date of the said Order.

• 4. The period of six weeks expired on 18 ^th April, 1978 because of my inadvertence and not through any fault of the appellant. The error arose because I mistakenly thought that 90 days was the period allowed for providing the security.

• 5. For several weeks I have attempted to have the record settled in accordance with the Order, but I was not able to get a date convenient to the deputy registrar and the solicitor for the respondent before 4 ^th May, 1978. It was on this date that my error was discovered, and as a result the record of appeal was not finally settled by the deputy registrar who observed that security has not yet been given.”

6 Counsel for the applicant has referred to the purpose of giving security. He stated that the error was that of the lawyer and was no fault of the client. Also, that the respondents are in no way prejudiced by the error. He submitted that the justice of the case requires that the application be granted as the appeal is one of great importance.

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