Jamaican Redevelopment Foundation, Inc. v Clive Banton
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Sinclair-Haynes JA,P Williams JA |
| Judgment Date | 10 May 2019 |
| Neutral Citation | JM 2019 CA 59 |
| Date | 10 May 2019 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Civ 12
SUPREME COURT CIVIL APPEAL NO 35/2015
The Hon Mrs Justice McDonald-Bishop JA
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Miss Justice P Williams JA
Mrs Sandra Minott-Phillips QC and Mrs Alexis Robinson instructed by Myers, Fletcher & Gordon for the appellant
Emile Leiba and Jonathan Morgan instructed by DunnCox for the respondents
Civil practice and procedure - Evidence — Admissibility — Expert evidence — Whether judge erred in allowing expert witness to be cross-examined — Admission of redacted report in evidence — Whether redacted report was inadmissible.
I have had the privilege of reading, in draft, the judgment of my learned sister, Sinclair-Haynes JA. I am in agreement with her decision concerning the disposal of the appeal and the counter-appeal. However, given the marked differences in our approach to the analysis of several issues raised for consideration, I consider it necessary to express my reasons for the decision arrived at. Being mindful of the already detailed draft judgment of my learned sister, I have made strenuous efforts to be as brief as I possibly can.
I must also apologise to the parties for the delay in the delivery of this judgment. No excuse will be advanced, except to say that most of the constraints, which militated against a more expeditious disposition of the matter, are well known.
The appeal treats with two broad questions: the first is whether a judge of the Supreme Court erred in law when he found that a mortgagee, acting as the vendor (“mortgagee vendor”) in a contract for sale of land in the exercise of its power of sale, was liable in damages to the third party purchasers for the cancellation of the agreement for sale. The second question is whether the learned judge erred in awarding damages to the purchasers in the sum he did, thereby rendering the award of damages inordinately high and an erroneous estimate of the loss suffered by the purchasers.
As a minor issue, the award of interest on the damages awarded, which was ordered to run from a date prior to judgment, is also the subject of challenge on the appeal.
The purchasers have also filed a counter-notice of appeal. The broad issue for determination on the counter-appeal is whether the learned judge erred in the assessment of damages, thereby resulting in the award of damages being inordinately low and an erroneous estimate of the loss suffered by the purchasers.
Also considered as a preliminary and collateral question relative to the appeal is whether the mortgagee vendor should have been allowed at the commencement of the hearing of the appeal to amend its grounds of appeal to add a new ground, alleging bias against the learned judge.
The mortgagee vendor was the Jamaican Redevelopment Foundation, Inc (“JRF”), the appellant, and the third party purchasers were the respondents, Clive and Sadie Banton (“the Bantons”) who, at all material times, were husband and wife, respectively.
The appeal and counter-appeal emanated from the judgment of Batts J made in the Commercial Division of the Supreme Court on 20 March 2015. The learned judge granted judgment in favour of the Bantons, on a claim brought by them on 13 September 2011, against JRF for wrongful cancellation or purported cancellation of the agreement for sale of land, situated at Woodleigh in the parish of Clarendon and registered at Volume 1240 Folio 116 of the Register Book of Titles (“the land”).
The claim was bifurcated for trial, with the issue of liability being resolved in a separate hearing from that of damages.
The reasons for judgment on the issue of liability from which the appeal has arisen are to be found in a written judgment reported as Clive Banton and Sadie Banton v Jamaica Redevelopment Foundation Incorporated [2014] JMSC Civ 106.
The reasons for the judgment on damages from which the appeal and the counter-appeal have emanated are contained in the written judgment reported as Clive Banton and Sadie Banton v Jamaica Redevelopment Foundation Inc [2015] JMSC Civ 61.
The order of the learned judge, which has given rise to these proceedings, is in these terms:
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“1. Judgment for [the Bantons] against [JRF] in the sum of US$940,908.80 with interest at the rate of one percent (1%) per annum from the 5 th of May 2011 to the 20 th of March, 2015 pursuant to the Law Reform ( Miscellaneous Provisions) Act.
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2. Costs to [the Bantons] to be taxed if not agreed.
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3. Stay of execution of the judgment granted for six (6) weeks.”
JRF has challenged in this appeal both the findings on liability and damages in 10 wide ranging grounds of appeal, while the Bantons, by way of their counter-notice of appeal, have also challenged the damages awarded by the learned judge on 10 grounds. These grounds have been set out fully in paragraph [195] by my sister, Sinclair-Haynes JA, and in the interest of brevity will not be reproduced.
Before undertaking the examination of the grounds of appeal and the counterappeal, the preliminary issue relating to the application made by JRF at the commencement of the hearing of the appeal to amend its grounds of appeal will first be disposed of.
JRF made an oral application to add an 11 th ground of appeal in the terms that, “the judge below was not impartial due to his bias”.
No prior notice of the application was given to the Bantons or the court. This, of course, is not in keeping with the rules of procedure and the established practice in the court. Permission to amend, prior to the hearing of an appeal, is generally to be sought in writing and with notice, in keeping with Part 11 of the Civil Procedure Rules 2002 (“the CPR”), which applies to this court by virtue of rule 1.1(10)(h) of the Court of Appeal Rules 2002 (“the CAR”). Needless to say, the court and counsel for the Bantons were completely taken by surprise. The court, nevertheless, agreed to hear the application, given the indication of Mrs Sandra Minott-Phillips QC, for JRF, that it related to an allegation of non-disclosure and bias on the part of the learned judge. This was viewed as a serious allegation that could have affected the outcome of the appeal.
The application, not surprisingly, was strenuously opposed by the Bantons, through their counsel Mr Emile Leiba, who urged the court to refuse it for several reasons.
Having considered the application, the applicable law and the submissions of counsel for the parties, we refused the application and promised to give our reasons for doing so at the time of the judgment on the substantive appeal. These are my reasons for concurring in the decision of the court that the application be refused.
Mrs Minott-Phillips contended that the basis for the application to add the proposed ground of appeal was that the learned judge had failed to specifically disclose that a year and a half before the trial of the instant case, he had appeared for Scotiabank Jamaica Trust and Merchant Bank Limited (“Scotiabank”), which was the defendant in a claim brought by National Commercial Bank Jamaica Limited (“NCB”) as first claimant, and JRF as the second claimant. The case to which learned Queen's Counsel referred, a copy of which was brought to the attention of the court, is reported at National Commercial Bank Jamaica Limited and Jamaica Redevelopment Foundation Inc v Scotiabank Jamaica Trust and Merchant Bank Ltd [2012] JMSC Civil 1.
According to learned Queen's Counsel, JRF had secured a significant victory over Scotiabank (in the sum of over US$14,800,000.00). The learned judge's involvement in that case as counsel had disqualified him from adjudicating in the instant case, she contended. She pointed out that the learned judge failed to make specific disclosure to allow the parties to give an informed consent for him to preside at the trial. Learned Queen's Counsel argued that there was apparent and actual bias on the part of the learned judge against JRF, in the conduct of the case at trial.
Rule 1.12 of the CAR grants an appellant in a civil case (except on a procedural appeal), the right to amend his grounds of appeal once without permission at any time within 21 days from receiving notice under rule 2.5(1)(b) or (c). At any other time, permission to amend the grounds of appeal must be sought from the court.
The CAR has not expressly set out the principles that should be applied by the court in considering applications for permission to amend. In the text, Civil Appeals: Principle and Procedure, First Edition, at pages 337–338, the learned authors, James Leabeater et al, in speaking to the practice in the English Court of Appeal, helpfully noted that in the absence of principles governing the power of that court in granting permission to amend, “the court will apply the general principles on amendments as would apply under CPR Pt 17” (our CPR Part 20).
The CAR do not state specifically that Part 20 of the CPR applies to appeals in this court but, according to rule 2.15(a) of the CAR, the court, in relation to a civil appeal, in addition to the powers in rule 1.7, has all the powers and duties of the Supreme Court. It means that the same powers that inhere in the Supreme Court in relation to amendments to a statement of case would likewise inhere in this court.
Rule 1.7(2)(n) of the CAR also provides that the court has the power to make any order or give any direction, which is necessary to determine the real question in issue between the parties to the appeal. This would include making such amendments that may be necessary, subject to the overriding objective.
In my view, the administration of...
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