HDX 9000 Inc. v Price Waterhouse (A Firm)

• Jurisdiction: Jamaica
• Judge: F Williams JA
• Judgment Date: 26 September 2016
• Neutral Citation: JM 2016 CA 86
• Docket Number: SUPREME COURT CIVIL APPEAL NO 1312015 MOTION NO 61 16
• Court: Court of Appeal (Jamaica)
• Date: 26 September 2016

[2016] JMCA App 25

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 1312015

MOTION NO 61 16

Between

HDX 9000 INC

Applicant

and

Price Waterhouse (a Firm)

Respondent

Written submissions filed by G Anthony Levy & Co on behalf of the applicant

Written submissions filed by Livingston Alexander & Levy on behalf of the respondent

IN CHAMBERS

(Considered on paper pursuant to rule 2.10(3) of the Court of Appeal Rules 2002).

F Williams JA

Nature of application

1 This matter comes before me as a procedural application for conditional leave to appeal to Her Majesty in Council, pursuant to Practice Direction No 1/2016 dated 10 May 2016, on which date it took effect. It gives practical effect to certain provisions of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962. The background to the making of the application is set out in the paragraphs that follow.

The background

2 As a result of its failure to comply with ‘unless orders’ made on 13 May 2014 by Sinclair-Haynes J (as she then was) to file certain bundles and redact certain documents which had previously been filed, the applicant HDX 9000 Inc (HDX) was visited with the sanction of having its claim struck out. Laing J granted relief from the sanction on an application in that regard brought by HDX, The respondent, Price Waterhouse, then appealed to this court against the granting of that relief. At the time that that appeal was brought, the issue was whether the learned judge had erred in granting relief from sanctions pursuant to rule 26.8 of the Civil Procedure Rules (CPR) which states:

‘26.8 (1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be —

• (a) made promptly; and

• (b) supported by evidence on affidavit.

(2) The court may grant relief only it is satisfied that —

• (a) the failure to comply was not intentional

• (b) there is a good explanation for the failure; and

• (c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions

(3) In considering whether to grant relief, the court must have regard to-

• (a) the interests of the administration of justice;

• (b) whether the failure to comply was due to the party or that party's attorney-at-law;

• (c) whether the failure to comply has been or can be remedied within a reasonable time;

• (d) whether the trial date or any likely date can still be met if relief is granted; and

• (e) the effect which the granting of relief or not would have on each party.

(4) The court may not order the respondent to pay the applicant's costs in relation to any application for relief unless exceptional circumstances are shown.’

3 By its written judgment delivered on 8 April 2016, this court allowed the appeal. It found that the learned judge ought not to have granted relief, as the requirement at rule 26.8(l)(a) of the CPR, for the application to have been filed promptly, had clearly not been met by HDX and therefore there was no need to consider the other provisions of the rule.

The application for leave to appeal

4 By this application, the applicant, HDX, is seeking leave to appeal to Her Majesty in Council as of right pursuant to section 110(1) of the Jamaica (Constitution) Order in Council 1962 (the Constitution) against the decision of this court on 8 April 2016. It contends that the decision of this court to reverse the decision of the learned judge below and consequently to reinstate the sanction imposed, brings the matter to an end, that is, it is a final judgment. It also avers that the correct test to be applied in determining whether the order was final is that discussed in the case of Strathmore Group Ltd v AM Fraser and Others [1992] AC 172 in which, although the matter was essentially a split hearing, the court adopted the reasoning of Sir John Donaldson MR in White v Brunton [1984] QB 570, 573 that:

‘…where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have both appealed against such order without leave if both parts had been heard together and the order had been made at the end of the complete hearing.’

5 The respondent however offers to the court the view that the result of the substantive appeal in this matter did not bring the matter to an end and that it would have continued whether or not the sanction had been imposed, thus making the order interlocutory and not final. The respondent further contends that the correct test to be applied in determining whether a decision is interlocutory or final is the ‘application test’ as applied by this court in Jamaica Public Service v Rose Marie Samuels [2010] JMCA App 23. That approach considers the nature of the application to the court and not the nature of the order which is made, as determining whether a matter is final or interlocutory. The respondent further avers that the application does not satisfy the criteria required by section 110(2) of the Constitution.

The issue(s) on this application

6 The issue now arising for determination is whether HDX's application for conditional leave to appeal is being correctly made as being as of right pursuant to section 110(l)(a) or, alternatively, meets the conditions applicable under section 110(2) of the Constitution. In deciding this matter the court must consider the following: whether or not the decision of the Court of Appeal in refusing the applicant's appeal against the grant of relief from sanctions and re-instating the judgment in favour of Price Waterhouse brought the matter to an end.

The relevant Law

7 The Constitution of Jamaica makes provision for appeals to be made from decisions of the Court of Appeal to Her Majesty in Council. Section 110 provides in part:

• ‘(1) An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council as of right in the following cases-

  • (a) where the matter in dispute on the appeal to Her Majesty in Council is of the value of one thousand dollars or upwards or where the appeal involves directly or indirectly a claim to or question of one thousand dollars or upwards, final decisions in anv civil proceedings :

  • (b) final decisions in proceedings for dissolution or nullity of marriage;

  • (c) final decisions in any civil, criminal or other proceedings on questions as to the interpretation of this Constitution; and

  • (d) such other cases as may be prescribed by Parliament.

• (2) An appeal shall lie from decisions of the Court of Appeal to Her Majesty in Council with the leave of the Court of Appeal in the following cases-

  • (a) Where in the opinion of the Court of Appeal the question involved in the appeal is one that, by reason of its great general or public importance or otherwise , ought to be submitted to Her Majesty in Council, decisions in any civil proceedings; and

  • (b) Such other cases as may be prescribed by Parliament.’ (Emphasis added).

8 The Jamaica (Procedure in Appeals to...