Savita Indira Saisbury Appellant v The Director of the Office of National Drug and Money Laundering Control Policy (ONDCP) Respondent [ECSC]

• Jurisdiction: Antigua and Barbuda
• Judge: Blenman JA,Louise Esther Blenman,Justice of Appeal
• Judgment Date: 21 March 2014
• Judgment citation (vLex): [2014] ECSC J0321-1
• Court: Court of Appeal (Antigua and Barbuda)
• Docket Number: ANUHCVAP2012/0044
• Date: 21 March 2014

[2014] ECSC J0321-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

ANUHCVAP2012/0044

In the Matter of the Constitution of Antigua and Barbuda Cap. 23of the Revised Laws of Antigua and Barbuda alleging that the provisions of sections 3, 5 and 10 of the Antigua and Barbuda Constitution have been are being and are likely to be contravened by reason of the conduct of certain members of the ONDCP and for an Order to protect the contravention of said Constitutional Rights

Between:

Savita Indira Saisbury

Appellant

and

The Director of the Office of National Drug and Money Laundering Control Policy (ONDCP)

Respondent

On written submissions:

Ms. Leslie-Ann Brissett George for the Appellant

Ms. Bridget Nelson, Senior Crown Counsel, for the Respondent

Civil appeal — Interlocutory appeal — Appeal against case management decision — Rule 56 of the Civil Procedure Rules 2000 — Rule 26.9 of the Civil Procedure Rules 2000 — Whether trial judge erred in striking out claim on the basis of alleged breach of the rules — Whether learned trial judge exercised his discretion properly in not utilizing his case management powers to rectify matters where there was a procedural error

The appellant instituted a claim against the respondent in the form of a fixed date claim and, instead of filing with the fixed date claim form affidavit evidence in support as stipulated by rule 56.7(3) of the Civil Procedure Rules 2000 ("CPR"), filed a statement of case. The respondent filed a defence to the claim. At the hearing of the matter the respondent objected to the appellant's claim on the basis of non-compliance with rule 56.7(3) of the CPR and made an oral application to strike out the matter. The learned trial judge struck out the claim on the basis that the appellant had failed to file an affidavit in support of the claim or to apply for relief from sanctions.

The appellant appealed alleging that the learned trial judge erred in striking out the claim on the basis of the alleged breach of the rules since in the circumstances of the case rule 26.9 was applicable.

Held: allowing the appeal and awarding costs in the court below and on the appeal to the appellant, that:

• 1. In circumstances where the rule or order of court does not provide for sanctions where there is a default in procedure it is not open to the court to read any sanction into the rule. The CPR provides no sanction for non-compliance with rule 56.7(3). Therefore, the appellant's non-compliance with that rule did not require the appellant to file relief from sanctions.

  The Attorney General v Keron Matthews [2011] UKPC 38 applied; C.O. Williams Construction (St. Lucia) Limited v Inter-Island Dredging Co. Ltd. Saint Lucia, High Court Civil Appeal SLUHCVAP2011/0017 (delivered 19 ^th March 2012, unreported) followed; Rule 56.7(3) of the Civil Procedure Rules 2000 applied.

• 2. Rule 26.9(3) of the CPR confers jurisdiction on a judge to make an order to put matters right if there has been an error of procedure or a failure to comply with a rule, practice direction, court order or direction. This the court may do on or without an application by a party. The failure of the appellant to file affidavit evidence in support with the fixed date claim was a procedural error. Hence, the learned trial judge would have been clothed with jurisdiction to give an appropriate direction to put matters right. Considering that the respondent would not have been prejudiced by an order to put matters right and that doing so would only further the overriding objective of the CPR, the learned trial judge did err in his refusal to do so.

  The Attorney General v Keron Matthews [2011] UKPC 38 applied; Rule 26.9(3) of the Civil Procedure Rules 2000 applied.

• 3. An appeal against a judgment given by a trial judge in the exercise of a judicial discretion will not be allowed unless an appellate court is satisfied that in exercising his or her judicial discretion the learned trial judge misdirected himself in law, failed to take into account some material which he ought to have taken into account, or had taken into account a matter which ought to have excluded and as a result of this error the trial judge's decision exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be blatantly wrong. The learned trial judge's refusal to exercise his case management powers conferred on him by rule 26.7(3) of the CPR was an error. In the circumstances an appellate court would be in as good as a position as the learned trial judge to exercise the discretion conferred by the rules and make an order or give directions so as to bring the claim in conformity with the rules.

  David Goldgar et al v Wycliffe H. Baird Saint Christopher and Nevis High Court Civil Appeal SKBHCVAP2007/0013 (delivered 23 ^rd October 2007, unreported) followed; Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 followed; Edy Gay Addari v Enzo Addari Territory of the British Virgin Islands High Court Civil Appeal BVIHCVAP2005/0002 (delivered 27 ^th June 2005, unreported) followed.

Blenman JA

1 This is an appeal by Ms. Savita Indira Salisbury ('Ms. Salisbury") against the decision of the judge at first instance to dismiss the claim for constitutional relief against the Director of the Office of National Drug and Money Laundering Control Policy ("ONDCP") on the basis that Ms. Salisbury has failed to comply with rule 56.7(3) of the Civil Procedure Rules 2000 ("CPR").

Background

2 On 7 ^th February 2012, Ms. Salisbury commenced a claim in the High Court in which she alleged that her fundamental rights as provided by the Antigua and Barbuda Constitution Order 1981 were violated by officers of the ONDCP. In pursuance of her claim, she filed a fixed date claim and statement of case in which she alleged that officers from the ONDCP unlawfully entered her property having falsely represented to her that they had a valid search warrant when they did not and illegally seized and took away several records, materials and document which were in her property. The documents were stated to be relevant to offences alleged to have been committed by David Tom ("Mr. Tom") deceased, with whom Ms. Salisbury lived as man and wife. She was not implicated in the alleged offences. Offences were also alleged to have been committed by Astra Holdings Limited. She says that she is not a director of Astra Holdings Limited. She also alleged that the officers arrested her and took her to ONDCP's headquarters where she was questioned for about two hours. Ms. Salisbury also alleged that the officers unlawfully took away documents from her home that related to Astra Holdings Limited and Mr. Tom. These documents, she says, are vital to her establishing the claim of the Estate of David Tom of which she is one of the executors. The offences that were stated on the search warrant did not implicate her in any way. On 2 ^nd February 2012, the defendant indicated to her that she was not a suspect in the money laundering investigations but was needed to assist with investigations related to Astra Holdings Limited.

3 She contended that in those circumstances her constitutional rights were breached and sought a number of reliefs including a declaration that the ONDCP and its officers entry onto her property was unlawful and violated her constitutional right as provided by section 10 of the Antigua and Barbuda Constitution Order 1981. She also sought a declaration that ONDCP unlawfully and illegally seized and removed articles from her premises. In addition, she sought a declaration that her arrest and detention were illegal and unconstitutional and in violation of her constitutional rights as protected by section 3 and 5 of the Antigua and Barbuda Constitution Order 1981. On 22 ^nd February 2012, the fixed date claim and statement of claim were served on the Director of ONDCP. He filed a defence to the statement of claim on 5 ^th March 2012 denying the allegations that were made by Ms. Salisbury. It is very important to note that she did not file an affidavit in support of her claim in breach of rule 56.7(3).

4 The first hearing of the matter was set for 9 ^th March 2012 and was adjourned to 14 ^th June 2012. On 14 ^th June 2012, at the adjourned hearing, ONDCP took a preliminary point that Ms. Salisbury had failed to comply with rule 56.7(3) of CPR and that her claim was fatally flawed. The alleged acts of non-compliance were that she had failed to present a claim that was headed 'Originating Motion' as required by rule 56.7(2) and also that she had filed to file evidence on affidavit as required by rule 56.7(3). The Director of ONDCP argued that Ms. Salisbury's claim should be struck out due to her non-compliance.

5 Ms. Salisbury strenuously opposed the application to strike out her claim on the basis that there was no requirement in the Antigua and Barbuda Constitution Order 1981 for the claim form to be headed "Originating Motion." Ms. Salisbury also implored the court not to strike out her claim even though the rule required her to file an affidavit. She said that the statement of claim pleaded all of the relevant ingredients upon which to ground her constitutional claim for redress and that the defendant was aware of the allegations that were being made against the officers of the ONDCP.

6 Despite the urging on behalf of Ms. Salisbury, the learned trial judge struck out the claim on the basis that Ms. Salisbury had failed to file an affidavit in support of the claim or to apply for relief from sanctions. However, the trial judge upheld Ms. Salisbury's submissions based on the first ground of the defendant's objection to the application to strike. The court held that her claim complied with rule 56.7(1) of the CPR. However, the learned trial judge held that Ms. Salisbury's failure to...