Construction Developers Associates Ltd v Urban Development Corporation
| Jurisdiction | Jamaica |
| Judge | Brooks JA,F Williams JA,Edwards JA (AG) |
| Judgment Date | 03 June 2016 |
| Neutral Citation | JM 2016 CA 83 |
| Docket Number | APPLICATION NO 128/2015 |
| Court | Court of Appeal (Jamaica) |
| Date | 03 June 2016 |
[2016] JMCA App 14
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Brooks JA
The Hon Mr Justice F Williams JA
The Hon Miss Justice Edwards JA (AG)
APPLICATION NO 128/2015
Patrick Foster QC and Miss Stephanie Forte instructed by Nunes Scholefield DeLeon and Co for the applicant
John Vassell QC and Mrs Juliann Mais-Cox instructed by DunnCox for the respondent
This is an application by Construction Developers Associates Limited (CDA) to extend the time within which it may file a notice of appeal from a judgment of the Supreme Court. The respondent to the application, Urban Development Corporation (UDC), while not completely opposing the application, contended that the extension should only be granted on a limited basis. It argued that CDA should only be entitled to argue some of its proposed grounds of appeal. UDC also contended that at least two issues raised by CDA's proposed grounds of appeal have no real prospect of success. UDC contended that CDA should, therefore, not be granted an extension of time in respect of those issues. UDC did not oppose the application in respect of the other aspects of the proposed appeal.
The issues to be decided at this stage are, firstly, whether this court may issue conditions for, or qualify, any grant of extension of time within which to file a notice of appeal, and secondly whether UDC is correct in its assertion that the two areas included in the proposed grounds of appeal are unarguable and therefore not worthy to be included in an appeal to be placed before the court.
The judgment in this case was handed down on 5 December 2014. The formal order was not served, however, until 2 March 2015. CDA should have filed its notice and grounds of appeal on or before 13 April 2015. It, however, did not do so. On 6 July 2015, it filed a document entitled Notice of Appeal but, as that document had been filed out of time, it had no effect. It will, therefore, be referred to, hereafter, as the proposed notice. CDA did not file the present application until 16 December 2015. No explanation was given for the lapse of some five months between filing the proposed notice and filing the present application.
In light of UDC's stated position, it is unnecessary to undertake a specific assessment of the conditions that an applicant is usually required to satisfy, in order to be granted an extension of time within which to appeal. The first issue that will be assessed below is the authority to qualify a grant of such an extension. Thereafter, the background facts will be set out and after that, the issue of whether the grant ought to be qualified.
In his written submissions in which he advocated for a qualified grant of an extension of time, Mr Vassell QC, on behalf of UDC, submitted that the court has the power to qualify the grant. He equated the power to that which is exercised when permission to appeal is granted. Learned Queen's Counsel said at paragraph 4 of his written submissions;
‘The Court has an express power when making an order giving permission to appeal to limit the issues to be heard on appeal. See paragraph 1.8(10) of the CAR:
“An order giving permission to appeal may —
(a) limit the issues to be heard on the appeal; and
(b) be made subject to conditions.”
A request for extension of time to appeal is a request for the exercise of a discretionary power which a Court may in principle grant subject to conditions. By parity of reasoning with the Court's power on an application for leave to appeal, the Court can in an appropriate case make an order for extension of time to appeal. Subject to a condition limiting the issues which may be pursued in the appeal. ’ (Emphasis supplied)
Mr Vassell did not cite any authority for his proposition.
Mr Foster QC, appearing on behalf of CDA, did not contest Mr Vassell's proposition. It seems, however, that Mr Vassell is correct in principle. The analysis of his proposition requires further references to the CAR. The time within which a notice of appeal may be filed, is specified by l.ll(l)(c) of the Court of Appeal Rules (CAR). Rule 1.11(2) authorises this court to extend the time within which to file the notice of appeal. Rule 1.7(2)(b) allows the court to grant such an extension even if the application for the extension is made after the time had passed for filing the notice of appeal. Rule 1.7(3) specifies that when the court makes an order or gives a direction it may make the order subject to conditions. It does not, however, stipulate a power to limit the issues to be heard on appeal, as is done in rule 1.8(10).
One of the tests which an applicant for an extension of time must satisfy, is to show that there is merit in the proposed appeal. The various tests are set out in Leymon Strachan v Gleaner Company Ltd and Dudley Stokes (Motion No 12/1999 — judgment delivered 6 December 1999). Panton JA (as he then was) stated them at page 20 of the judgment in that case. He said:
‘The legal position may therefore be summarised thus:
(1) Rules of court providing a time-table for the conduct of litigation must, prima facie, be obeyed.
(2) Where there has been a non-compliance with a timetable, the Court has a discretion to extend time.
(3) In exercising its discretion, the Court will consider-
(i) the length of the delay;
(ii) the reasons for the delay;
(iii) whether there is an arguable case for an appeal and;
(iv) the degree of prejudice to the other parties if time is extended.
(4) Notwithstanding the absence of a good reason for delay, the Court is not bound to reject an application for an extension of time, as the overriding principle is that justice has to be done.’ (Emphasis supplied)
Since the court may refuse an application for extension of time to appeal if it finds there is no arguable case for an appeal, then if it finds, in examining that application, that one or some of the proposed grounds of appeal, has no merit, it should, in its inherent power to control its own process, be able to refuse such an application which contains such grounds. Using another approach, it may be said that the court should, in exercising its authority granted by rule 1.7(3), be entitled to grant an extension of time within which to file a notice of appeal on condition that only certain grounds, that it approves, may be argued. If there are grounds which have no real prospect of success, it would be futile to grant an extension of time within which to argue such a ground.
It may be noted that the Court of Appeal of England and Wales, which uses a more elaborate test for deciding whether to grant an extension of time, includes in that test the principle that a litigant should be allowed to appeal ‘provided that he can show that he has a real, and not a fanciful, prospect of success’ (see paragraph 25 of Sayers v Clarke-Walker (a firm) [2002] EWCA Civ 645; [2002] 3 All ER 490).
Having considered that the court does have the power to limit the grounds on which an extension of time may be granted, the next step is to consider the present application. It is necessary, however, to put the application in context. In order to do so a brief outline of the factual background is required.
The facts, in summary, are that UDC engaged CDA to do work on the Coronation Market, which is located in a volatile part of downtown Kingston. Their written contract was dated 26 May 1988 (the ‘C4 Contract’). Between 15 and 17 February 1992, which was some time after work on the project had started, vandals entered the work-site and stole hoarding, tools and building material. There was no insurance in place to cover that loss, as the relevant policy had previously been cancelled. CDA claimed compensation from UDC in respect of this loss. The architect for the project, Ms Nadine Isaacs, assessed the loss in the sum of $3,750,000.00.
On 18 September 1992, representatives of the parties met with Ms Isaacs and the Quantity Surveyor, Mr Wright, and discussed CDA's claim. UDC's representative, Mr Karl Binger agreed to recommend to the UDC's Board that UDC reimburse CDA 50% of the assessed loss arising from the theft. On 1 October 1992, Ms Isaacs issued an interim payment certificate, designated no 39, in the sum of $4,385,500.00, which figure included the sum of $1,875,000.00. The latter figure represented 50% of the claim for the loss due to the theft.
Mr Binger challenged the inclusion of the sum in the certificate. He asserted that there was no agreement to pay it. He said that he had only agreed to recommend its payment. Ms Isaacs recanted. She wrote a letter stating that that item in the certificate should be considered as only a recommendation for reimbursement. UDC did not include the sum in its payment of certificate no 39.
A dispute arose between the parties as to whether the sum had eventually been paid. UDC asserted that it made the payment as part of its payment of interim certificate no 40, which was later issued by Ms Isaacs. CDA challenged the assertion.
The C4 Contract was mutually terminated in April 1993. The parties, however, agreed orally that CDA would provide security services for the worksite and UDC would reimburse it in that regard. They referred to that agreement as the security contract. The services were provided under the security contract from May 1993 to March 1995.
Another dispute arose between the parties. This latter dispute was in respect of a claim for compensation under the security contract. There is no need to expand on that contract or on the dispute connected to it, as UDC has not opposed the inclusion of grounds in...
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