Caribbean Steel Company Ltd v Price Waterhouse [No 2]

JurisdictionJamaica
CourtCourt of Appeal
JudgeBrooks JA
Judgment Date10 April 2012
Neutral CitationJM 2012 CA 31
Docket NumberSUPREME COURT CIVIL APPEAL NO 44/2006 APPLICATION NO 27/2012
Date10 April 2012

[2012] JMCA App 7

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 44/2006

APPLICATION NO 27/2012

Between
Caribbean Steel Company Ltd
Applicant
and
Price Waterhouse (A Firm)
Respondent

Ransford Braham QC , Mrs Suzanne Risden-Foster and Mrs Trudy-Ann Dixon-Frith instructed by Grant Stewart Phillips and Co for the applicant

Mrs Sandra Minott-Phillips and Mrs Alexis Robinson instructed by Myers Fletcher and Gordon for the respondent

CIVIL PROCEDURE - Extension of time - Application for extension to file record of appeal for transmission to Privy Council - Whether court has jurisdiction to grant extension of time - Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962, S.4

IN CHAMBERS
Brooks JA
1

On 2 November 2011, this court granted Caribbean Steel Company Limited (hereinafter called ‘the applicant’), conditional leave to appeal to Her Majesty in Council. The conditions imposed required the applicant to pay the sum of $1,000.00 for security for costs and to prepare the record of appeal for transmission to the Privy Council. The applicant should have complied with the conditions by 2 February 2012.

2

It paid the sum but failed to complete the record of appeal within the specified time. On 15 February 2012, the applicant filed the present application asking that the time to file the record of appeal be extended. It asserts that the completed record is now ready and has already been filed with the registrar of the court.

3

The respondent, Price Waterhouse, has opposed the application on the basis that this court has no jurisdiction to grant an extension of time. The essence of the objection to the application is that, it having been filed after 2 February 2012, and the conditions not having been fulfilled, the provisional approval has lapsed. There is, therefore, the respondent asserts, no appeal in existence, in respect of which, the court can make an order.

4

For this application, the issue for determination is whether a single judge of this court has the jurisdiction to grant an application for extension of time to file the record of appeal, where the application has been filed after the expiry of the original period allowed for filing the record. I shall outline the submissions for both sides and thereafter make my analysis.

The applicant's submissions
5

Mr Braham QC, on behalf of the applicant, pointed out that the time stipulation, with which the present application is concerned, is one, which was imposed by the court. This is in contrast to the condition concerning the provision of security, which had been imposed by the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962 (hereafter called ‘the Order in Council’). He submitted that the court, therefore, has the power to extend the time, which it had itself imposed.

6

Learned Queen's Counsel relied heavily on the judgment of the Court of Appeal of Trinidad and Tobago in the case of Reid v Charles and Another (1987) 39 WIR 313. That court decided that it was open to the court to extend the time allowed for the preparation of the record. It also held that a single judge of the Court of Appeal could properly order the extension.

7

Mr Braham was faced, however, with the decision of Smith v McField (1968) 10 JLR 555, to the effect that until all the conditions are fulfilled, no appeal is pending. The consequence of that finding is that once the conditional leave had lapsed due to the expiry of the time allowed, that time could not be extended. Learned Queen's Counsel asked me to find that, in respect of this point, the reasoning in Reid v Charles and Another was to be preferred to that in Smith v McField. He boldly submitted that I was not obliged to follow Smith v McField in this regard. Mr Braham argued that the point, which was to have been decided in Smith v McField, concerned the nonpayment of the sum for security. The comment in that case concerning the lapse of the conditional leave should, therefore, on his submission, be treated as going beyond what was necessary for deciding the application, which was before it, and was, therefore, obiter dictum .

8

Based on those submissions, Mr Braham asked me to find that the decision in Reid v Charles and Another and that in the Privy Council case of Roulstone v Panton (1979) 33 WIR 238, were definitive on the point. He urged me to find that this court, and in particular, a single judge thereof, has the jurisdiction to extend the time within which to file the record of appeal.

The respondent's submissions
9

Mrs Minott-Phillips, in response, argued that the respondent's position was that there was, in fact, no ‘appeal pending before Her Majesty in Council in circumstances where a condition precedent imposed by [this court] has not been fulfilled’. However, Mrs Minott-Phillips candidly accepted that ‘[h]ad the application for extension of time been filed, and possibly heard, before the expiry of the time, [the respondent] would not have a complaint’.

10

She pointed out that the present application was filed some two weeks after the expiry of the time allowed for satisfying the conditions. In that regard, learned counsel relied heavily on the point made in Smith v McField that until all the conditions have been fulfilled, no appeal is pending.

11

It was her submission that, based on the decision of this court in Smith v McField, there was no authority to extend the time originally allowed on the grant of conditional leave. She sought to distinguish the other cases cited by Mr Braham and submitted that the decision in Smith v McField, being a decision of this court, should be preferred to that of a court outside of this jurisdiction. She cited the cases of Chas E Ramson Ltd and Another v Harbour Cold Stores Ltd SCCA No 57/1978 (delivered 27 April 1982) and Golding and Another v Simpson-Miller SCCA No 3/2008 (delivered 11 April 2008), in support of her submissions.

The analysis
12

I should state at the outset of this analysis that I am grateful to counsel on both sides for their industry in providing me with the relevant material and for the clarity of their respective presentations. Their efforts have resulted in the issue being narrowed to that which has been identified above.

13

In my view, there are three questions raised by the submissions. The first is whether the grant of conditional leave gives rise to an appeal. The second is whether the grant of conditional leave irretrievably lapses upon the expiry of the time allotted for the preparation of the record. The third is, where the court is entitled to grant an extension of time, whether a single judge may grant that extension.

14

In addressing these questions, it would be best to first state that which is beyond controversy. The permission given, pursuant to the provisions of the Order in Council, is at first, conditional. There are usually two aspects to the conditional grant. The first (paragraph (a)), concerns the payment of money as security for the prosecution of the appeal and for the payment of costs. The second (paragraph (b)), concerns the preparation of the record of appeal. I shall, for completeness, set out below the relevant portion of section 4 of the Order in Council.

‘Leave to appeal to Her Majesty in Council in pursuance of the provision 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…

  • (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.’

15

Where the appellant fulfils the conditions imposed, it may then apply for final leave to appeal. There is no dispute that where an appellant fails to comply with the condition concerning the payment of the sum for security for the prosecution of the appeal, the permission to appeal lapses. It has been long accepted that there is no jurisdiction in this court to extend the time for compliance. That is the force of the decision in Smith v McField. In that case, Luckhoo JA said, at page 557 H:

‘I am of the view that neither the Court nor a judge thereof is empowered to extend the period of time within which security for the prosecution of an appeal to Her Majesty in Council may be made beyond a period of 90 days from the date of the hearing of an application for leave to appeal to Her Majesty in Council…’ (Emphasis supplied)

16

The rationale behind that decision is that the time allowed in the order, with regard to the payment of the security, is authorised by the Order in Council. At page 557 E, Luckhoo JA explained the principle thus:

‘The Court, or a judge thereof, is precluded by the provisions of para (a) of s. 4 from granting a period exceeding 90 days to an applicant for leave to appeal to enter into good and sufficient security for the due prosecution of an appeal.’

Their Lordships, in Roulstone v Panton, specifically approved that reasoning and decision.

17

The difference, between the effect of paragraphs (a) and (b) of section 4, is that the conditions imposed, pursuant to paragraph (b), are conditions, which are imposed by the court and not by the Order in Council. The court, therefore, has the authority to adjust those latter conditions. The distinction between the two paragraphs of section 4, in this regard, was recognized in Allahar v Katick Dass (1910 —1916) 2...

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