Hon Gordon Stewart OJ v Senator Noel Sloley Sr, Noel Sloley Jr, Gordon Brown, Deborah Lee Shung and Jamaica Tours Ltd

• Jurisdiction: Jamaica
• Judge: MORRISON JA , DUKHARAN JA , McINTOSH JA
• Judgment Date: 29 July 2011
• Neutral Citation: JM 2011 CA 86
• Docket Number: SUPREME COURT CIVIL APPEAL NO. 68/2010
• Court: Court of Appeal (Jamaica)
• Date: 29 July 2011

[2011] JMCA Civ 28

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE MORRISON JA

THE HON. MR JUSTICE DUKHARAN JA

THE HON. MRS JUSTICE McINTOSH JA

SUPREME COURT CIVIL APPEAL NO. 68/2010

BETWEEN

HON GORDON STEWART OJ

APPELLANT

AND

SENATOR NOEL SLOLEY SR

1 ^ST RESPONDENT

AND

NOEL SLOLEY JR

2 ^ND RESPONDENT

AND

GORDON BROWN

3 ^RD RESPONDENT

AND

DEBORAH LEE SHUNG

4 ^TH RESPONDENT

AND

JAMAICA TOURS LIMITED

5 ^TH RESPONDENT

Donald Scharschmidt QC, Vincent Chen and Jerome Spencer instructed by Patterson Mair Hamilton for the appellant

Walter Scott and Miss Anna Gracie instructed by Elizabeth Salmon of Rattray Patterson Rattray for the 1 ^st and 2 ^nd respondents

Mrs Nicole Foster-Pusey for the 3 ^rd and 4 ^th respondents

Abraham Dabdoub instructed by Dabdoub, Dabdoub & Co for the 5 ^th respondent

CONTEMPT OF COURT - Claim - Application to strike out - Civil Procedure Rules 2002, Part 53 - Search Order - Civil Procedure Rules 2002, Part 17 - Whether contempt occurred within the proceedings

MORRISON JA

1 The issues

2 [1] On 19 May 2010, Anderson J made an order striking out an application by the appellant, pursuant to rule 53.10 of the Civil Procedure Rules 2002 (“the CPR”), for orders punishing the respondents for alleged contempt of court. In this appeal (with the leave of the judge), the primary questions for the court's decision are, firstly, whether the application was properly made by notice of application for court orders or whether it ought properly to have been made by fixed date claim form (as Anderson J found to be the case) (rule 53.10), and, secondly, whether the application in respect of the 1st and 2nd respondents was deficient in that they were not served with an order endorsed with a penal notice (as Anderson J also found to be the case) (rules 53.4 and 53.5). In addition, the appeal raises more general questions relating to the scope and extent of the court's power to interpret and apply the CPR in accordance with the overriding objective of the rules (rule 1.2).

3 The background

4 [2] The matter has its genesis in a series of electronic mail (“email”) correspondence published between October 2007 and May 2008, under the pseudonyms”Dr Paulette Robinson” and “Paulette Robinson”, which, the appellant claims, contained material that was defamatory of him in several respects. Since that time, the appellant has by various means sought to discover the identity of and to locate the author of the offending publications.

5 [3] Early in 2009, the appellant received information that the email account from which the allegedly defamatory material had been published had been created using the internet service provided to the 5th respondent, a body corporate. The 1st and 2nd respondents are directors of the 5th respondent, while the 3rd and 4th respondents are attorneys-at-law and members of the firm of Rattray Patterson Rattray, the 5th respondent's attorneys-at-law.

6 [4] On 10 March 2009, pursuant to a without notice application made by the appellant, Donald McIntosh J made an order that the 5th respondent, ‘its Directors, officers, servants and/or agents’, should allow a search party led by a supervising attorney-at-law appointed by the court, and consisting of, among others, an attorney-at-law representing the appellant, to enter its premises at 1207 Providence Drive, Rosehall, St James, for the purposes specified in the order. The search party was to be allowed to search the 5th respondent's computers, servers or other data storage devices, wherever located, for computer files and/or documents containing the names ‘Paulette Robinson’ or ‘Gordon “Butch” Stewart’. The order was made on the appellant's undertakings to comply with any order for damages that the court might make in respect of any losses suffered by the 5th respondent as a result of the carrying out of the order and not, without the leave of the court, to use any information or document obtained as a result of the search ‘for any purpose other than commencing a claim for defamation against the person or persons going by the names Dr Paulette Robinson or Paulette Robinson’. The 5th respondent was required to have a representative in attendance when the search was being carried out and was further required to give the search party access to all its computers, servers and other data storage devices in order to facilitate the search.

7 [5] At the foot of this order, the following notice was printed:

‘NOTICE: IF YOU FAIL TO COMPLY WITH THE TERMS OF THIS ORDER YOU WILL BE IN CONTEMPT OF COURT AND MAY BE LIABLE TO HAVE YOUR ASSETS CONFISCATED.’

8 [6] The carrying out of this order duly commenced at the 5th respondent's premises on 12 March 2009. The 1st and 2nd respondents were not served with the order and neither of them was present during this search. However, the 4th respondent was in attendance, in her capacity as attorney-at-law for the 5th respondent. On 13 March 2009, before the search was completed, the 4th respondent, for reasons which are not relevant to this appeal, ordered that the search be terminated and that the search party should leave the 5th respondent's premises. The search ended accordingly.

9 [7] Shortly thereafter, following discussions between the attorneys-at-law representing the appellant and the 5th respondent respectively, an agreement was arrived at on a formula by which the search would be allowed to resume and proceed to completion. This agreement was embodied in a consent order made inter partes by Donald McIntosh J on 7 April 2009 (upon which was endorsed a penal notice in identical terms to that which had been endorsed on the first order). Schedule A of this order recorded that ‘The Applicant's undertaking to file a claim is hereby extended until May 31, 2009’ (although the earlier order had not in fact reflected a similar undertaking). Pursuant to this order, the search, which was to be concluded on or before 6 May 2009, was duly resumed on 8 April 2009, with the 2nd and 4th respondents in attendance. However, despite considerable further progress having been made, another dispute arose between the parties as a result of the 2nd and 4th respondents' insistence, on behalf of the 5th respondent and in consultation with the 3rd respondent, that the appellant should give a further undertaking as to damages before a particular server would be allowed to be cloned. Upon the appellant refusing to give any such undertaking, the search again ended before it was complete.

10 [8] No claim was filed by the appellant against the 5th respondent, either by 31 May 2009, in accordance with the undertaking given to the court as a condition of the order made on 7 April 2009, or at all. However, as a result of the abortive searches, the appellant took the position that the exercise had been frustrated because of the disobedience by the respondents, among others, of the two orders made by Donald McIntosh J (the search orders'). By notice of application for court orders filed on 5 November 2009, the appellant therefore sought the following orders against the respondents:

• ‘1. The assets of Jamaica Tours Limited be confiscated.

• 2. The directors, servants and agents of Jamaica Tours Limited, to wit, the 1st to 3rd Defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown be committed to prison for a period not exceeding two months.

• 3. Alternatively, the assets of [sic] 1st to 3rd Defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown [sic] Respondents be confiscated.

• 4. The costs of and consequent on the Orders dated March 10 and April 7, 2009 be paid by Jamaica Tours Limited and the 1st to 3rd Defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown.

• 5. The Costs of this application to be paid by Jamaica Tours Limited and the 1st - 3rd Defendants and Lisa Sloley, George Dawkins, Deborah Lee Shung and Gordon Brown.’

11 The relevant rules

12 [9] In order to appreciate how this application proceeded and for the purposes of the appeal itself, it may be helpful to consider briefly the relevant provisions of the CPR. The CPR, as is now well known, was designed to be ‘a new procedural code with the overriding objective of enabling the court to deal with cases justly’ (rule 1.1(1)). Rule 1.2 provides that ‘The court must seek to give effect to the overriding objective when interpreting these rules or exercising any powers under these rules’ and rule 1.3 mandates the parties ‘to help the court to further the overriding objective’.

13 [10 ] Part 11 of the CPR deals with applications for court orders and expressly contemplates that such applications may be made ‘before, during or after the course of proceedings’ (rule 11.1).

14 [11] Part 17 deals with interim remedies and rule 17.1(1) empowers the court to grant a number of such remedies, including ‘(h) an order (referred to as a “search order”) requiring a party to admit another party to premises for the purpose of preserving evidence etc.’. Rule 17.2(1) provides that such an order may be made at any time, including ‘…before a claim has been made’, but where the court grants an interim remedy before a claim has been issued, ‘it must require an undertaking from the claimant to issue and serve a claim form by a specified date’. The application may be granted without notice in specified cases (rule 17.3(2) and (3)).

15 [12] Part 26 sets out the court's general powers of management in furtherance of the overriding objective. Of particular relevance are rules 26.1(8), which provides that ‘In special circumstances on the application of a party the court may dispense with compliance with any of these Rules’, and 26.9(3), which provides that ‘Where there has been an error of procedure or failure to comply with a rule, practice direction, court order or...