Robin Mark Darby Appellant v Liat (1974) Ltd Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Pereira JA,Janice M. Pereira,Justice of Appeal
• Judgment Date: 05 June 2012
• Judgment citation (vLex): [2012] ECSC J0605-6
• Docket Number: HCVAP 2012/002
• Court: Court of Appeal (Antigua and Barbuda)
• Date: 05 June 2012

[2012] ECSC J0605-6

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Janice M. Pereira Justice Of Appeal

HCVAP 2012/002

Between:

Robin Mark Darby

Appellant

and

Liat (1974) Limited

Respondent

Civil appeal — Security for costs — Relief from sanctions — Application made after time for payment of security had expired — Whether court erred in refusing to grant relief

An order for security for costs was made against the appellant on 17^th November 2010. The Order required the appellant to give security within 28 days failing which the appellant's claim would stand as struck out. The appellant, who had previously complied with all rules, orders and directions of the court, failed to provide security within the requisite time limit. At a later date, the appellant was able to and did provide such security. On 28^th January 2011, an application for relief from sanctions was made by the appellant. The affidavit in support of the application was made by an attorney at law on behalf of the appellant who resides in Switzerland. The application was opposed by the respondent.

The Master, after considering that promptness was a requirement of an application for relief from sanctions and being concerned that counsel appearing was one and the same as the attorney at law who swore the affidavit in support of the application, thus according little or no weight the explanation proffered by the appellant, denied the application and ordered that the appellant's claim remain struck out and ordered that costs be paid to the respondent. The appellant appealed.

Held: granting the appellant relief from sanctions and deeming the security for costs paid into court on 13^th January 2011 duly paid; ordering that in the event that payment into court has not yet been made the appellant shall make payment into court no later than Friday, 15^th June 2012, and that upon payment into court, the appellant's claim shall be deemed not to have been struck out; awarding costs occasioned on the application for relief from sanctions to the respondent fixed in the sum of $1,000.00; and making no order as to costs on this appeal, that:

• 1. Rule 26.8 of the Civil Procedure Rules does not direct the court to have regard to whether or not the application for relief from sanction has been made promptly in considering whether to grant relief. Therefore, the Master erred in placing undue emphasis on what has been viewed as a lack of promptitude in applying for relief.

  Irma Paulette Robert v Cyrus Faulkner et al St. Lucia Civil Appeal No. 29 of 2007 (delivered 25^th October 2007) cited; CPR 26.8(3) applied.

• 2. It cannot be said that the appellant's failure to comply, which if need be can be easily remedied, was intentional. A court ought to consider all the factors and circumstances in an application for relief from sanctions. In doing so, the court ought to have regard to the appellant's explanation for his failure to comply with the order in the context of what the appellant was required by the order to do. The explanation given was sufficient to explain his failure. The appellant otherwise complied with all other rules, directions and orders of the court. In the circumstances, this was a proper case for the exercise of the court's discretion in favour of granting the relief sought.

  Civil Procedure Rules Part 26.8 applied.

• 3. A court must pay due regard to the broad and fundamental principles of access to justice and the administration of justice in adjudicating matters before it. In that vein, it is open to a court to grant relief from sanction where the justice of the case requires such. In the present case, the granting of relief would not have had an adverse impact upon the respondent. The respondent requested security; the appellant was ready and did provide the security, although out of time. It would not be in the interest of the administration of justice to exact disproportionate punishment by denying entry through the door of justice for untimely compliance in the face of the appellant's ability and readiness to remedy that failure.

• 4. The objective of an order for security for costs is to ensure that in the event of an adverse result, the respondent would be able to recover the costs incurred by him in defending the claim. The appellant's late payment of the security did not materially affect the case in such a way that the respondent would not be able to recover such costs. The giving of security or lack thereof had no impact on the merits of the parties' respective cases. No trial dates or case management schedules were fixed by the court; accordingly none would have been displaced in the granting of the relief. As such, the mischief which an order for security for costs is aimed at protecting was curable.

Pereira JA

1 This appeal filed 11^th April 2012, is against the decision of the Master refusing relief from sanctions against the late payment of security for costs in respect of a claim brought by the appellant against the respondent for damages for wrongful dismissal.

Background

2 An order requiring the appellant (the claimant below) to give security for costs of the respondent in the sum of $20,000.00 was made on 17^th November 2010. Security was required to be given within 28 days (by 17^th December 2010) failing which the appellant's claim was deemed to be struck out.

3 The matter was adjourned (in the event that security was paid) to 12^th January 2011. The matter however did not come on for further hearing until 1^st February 2011. On 13^th January 2011 (outside the time ordered for payment) the appellant was then in a position to pay in the requisite funds into court. The evidence reveals that the funds had been wired to the attorneys for the appellant and that a cheque dated 13^th January 2011 had been issued by the bank in favour of the Registrar of the Court for the said sum on the instructions of the said attorneys. On 28^th January 2011 the appellant applied for relief from sanctions in respect of the late payment of the security ordered.

The Application for Relief from Sanctions

4 The appellant stated in his application that he was employed in Switzerland and had to make arrangements for payment out of his account in the UK. That this involved conversion from Swiss Francs to English pounds and then to EC dollars; that the transfer of funds was concluded by 11^th January 2011 and a cheque prepared and released on 13^th January 2011.

5 The affidavit in support was sworn to by Dane R.A. Hamilton who essentially deposed to the matters set out in the application and also to the fact (uncontroverted) that the appellant had hitherto complied with all previous rules, orders and directions of the court. He further indicated that in any event there was no prejudice occasioned to the respondent by the delay.

6 The application was opposed by the respondent who contended that no explanation had been given for the 6 week delay in making the application; therefore it was not made promptly. The respondent also challenged the explanation for the late arrival of the funds asserting that it was lacking in specificity and documentary proof supporting the delay in effecting the wiring instructions.

The Master's Ruling

7 The application for relief from sanctions came on for hearing before the Master and on 7^th April 2011 she dismissed the application and further ordered that the claim remain struck out for non-compliance with the order of 17^th November 2010 and ordered the appellant to pay costs of $1,000.00 to...