Magwall Jamaica Ltd and Others v Glenn Clydesdale and Another

• Jurisdiction: Jamaica
• Judge: Panton P,McIntosh JA,Brooks JA
• Judgment Date: 22 February 2013
• Neutral Citation: JM 2013 CA 15,[2013] JMSC Civ 4
• Docket Number: SUPREME COURT CIVIL APPEAL NO 145/2012
• Court: Supreme Court (Jamaica)
• Date: 22 February 2013

[2013] JMSC Civ 4

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Panton P

The Hon Mrs Justice Mcintosh JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 145/2012

Between

Magwall Jamaica Limited

1st Appellant

Richard Catling

2nd Appellant

Samuel Catling

3rd Appellant

and

Glenn Clydesdale

1st Respondent

Victoria Clydesdale

2nd Respondent

Vincent Chen instructed by Chen Green & Co for the appellants

Mrs Symone Mayhew instructed by Wilmot Hogarth & Co for the respondents

CIVIL PROCEDURE - Mediation agreement - Mediation Report transmitted to court - Whether judge placed correct interpretation on what the parties agreed - Suit for monies loaned - Whether claim and defence was settled at mediation - Whether judge misconstrued the meaning and effect of Civil Procedure Rules 2002, Rules 74.12 and 42.7

Panton P

1 This appeal is in respect of an order made by Mangatal J pursuant to the report of mediation involving the parties. The question for determination is whether the learned judge placed a correct interpretation on what the parties agreed.

2 The order reads as follows:

• ‘(1) Order in terms of the Mediation Report filed February 9, 2012, that is, the claim and defence are herein settled and the parties will keep the agreement confidential.

• (2) Pursuant to the Dispute Resolution Foundation Mediation Settlement Agreement, the Court hereby declares that a Tomlin Order has been agreed to by the Parties.

• (3) Therefore, by consent, all further proceedings in this matter be stayed upon the terms set out in the document entitled “Dispute Resolution Foundation Mediation Settlement Agreement” dated February 7, 2012, signed by all of the parties, duplicate copies of which have been retained by the Attorneys-at-law for both the Claimants and the Defendants, except for the purpose of enforcing those terms. It is further ordered that either party may be permitted to apply to the court to enforce the terms upon which this matter has been stayed without the need to bring a new claim.

• (4) No order as to Costs.

• (5) Permission to appeal granted to the Defendants.’

3 The judge's order stemmed from the mediation report which stated the following:

1

) the mediation was held on 7 February 2012; 2) the parties have reached full agreement; 3) the claim and defence are settled; and 4) the parties will keep the agreement confidential as evidenced by their signatures.

4 In view of the fact that the parties have arrived at full agreement and have bound themselves to confidentiality in respect of the agreement, it is unnecessary to set out the details of the claim and the defence that form the basis of the suit. It is sufficient, it seems, to say only that the suit was a claim for monies loaned, with the borrowers admitting the debt but denying that the time for repayment had arrived. However, it ought to be noted that it is agreed by the parties ‘that some of the matters the subject of the Agreement, encompass matters not dealt with in the action and statements of case’.

5 As far as the order of Mangatal J is concerned, the complaint of the appellants is in respect of the declaration that the parties had agreed to a Tomlin Order and the staying of all further proceedings upon the terms set out in the settlement agreement. Further, they take issue with her order that either party may enforce the terms without bringing a new claim. To that end, the grounds of appeal were framed thus:

• ‘(A) The learned judge has misconstrued the real meaning and effect of Rules 74.12 and 42.7 of the Civil Procedure Code [sic] 2002. Rule 74.12 requires that all mediation settlement agreements must be entered and is applicable to every type of agreement which is then dealt with in accordance with Rule 42.7 in different ways depending upon the nature, circumstances and effect of the settlement.

• (B) The reference in The Settlement Agreement to the Supreme Court is not the same as a reference to the action and the judge has confused them, using the terms interchangeably.

• (C) The learned judge has misconstrued The Settlement Agreement. Paragraph 2 (b) requires that the parties take certain steps in the event of breach. It is a procedural provision and conforms to Rule 74.12. It cannot impact upon the agreement to settle so as to change its meaning to one for a stay.

• (D) The printed standard form portion of the agreement is applicable to all mediation settlement agreements and cannot be construed to reverse the substantive agreements reached by the parties in a specific mediation.

• (E) A Tomlin order requires consensus between the parties that the action in which it is made will be stayed with permission to apply within those same proceedings to enforce its terms. It cannot be imposed by the court and is intended to negative the rule that once a matter is settled a new action must be brought.

• (F) The true meaning of The Mediation Settlement Agreement is that it has created a new contract in consideration of the settlement of the matters arising in the action and, in the event of its breach, must be the subject of a new and different action.

• (G) The ruling at paragraph 1 of the order to the effect that the matter is settled is inconsistent with the ruling at paragraph 2 to the effect that a Tomlin order is entered.’

6 The appellants seek the following order, with costs:

• ‘(1) Order in terms of the Mediation Report filed February 9, 2012, that is, the claim and defence are herein settled and the parties will keep the agreement confidential.

• (2) Pursuant to the Dispute Resolution Foundation Mediation Settlement Agreement, the Court hereby declares that a final settlement has been agreed to by the parties and a new contract entered into by them.

• (3) No further steps or proceedings may be taken in this action and any breach of the terms of the aforesaid agreement shall be the subject of a new action by any party aggrieved by the breach of that contract.’

7 Mangatal J, in arriving at her decision, considered submissions from Mr Vincent Chen and Mrs Symone Mayhew. She noted that Mrs Mayhew submitted that the obvious order to be made was a Tomlin type order as provided for in rule 42.7(b)( 2) of the Civil Procedure Rules (CPR), whereas Mr Chen submitted that there is in existence a valid and binding agreement amounting to a settlement of the matter, and which puts an end to the dispute. A Tomlin Order, he said, keeps the action alive by providing for a stay of the action pending the doing of acts agreed on in the settlement. In the instant case, he said, the agreement is not a Tomlin Order as no provision was made within it to stay the action and make further applications to the court for enforcement.

8 Paragraphs 37 and 38 of the judgment give the reasoning of the learned judge. They are reproduced hereunder — paragraph 37 in full, and 38 in part:

‘37. Whilst, therefore, Mr. Chen is right that the Agreement does not expressly speak to a stay, it seems to me that in effect that is what is being agreed. The action is being settled, yet it is agreed that if there is allegation of breach, the parties will utilize the Supreme Court for the enforcement of the terms and conditions of the Settlement Agreement. In other words, the bargain is that the action would not be resorted to thereafter except for the purpose of enforcing the terms. Since it is the Supreme Court from whence the matter came to the Mediator, then for the parties to agree to utilize the Supreme Court for enforcement of the Agreement, must mean going back to the Supreme Court, or in other words, resorting to the action filed for the limited purpose of enforcing the terms of the Agreement. There is no magic in the word “stay”, or indeed, in the words “liberty to apply”, if words such as those utilized in the instant case are extant. I therefore agree with Mrs. Mayhew that the result of the mediation, coupled with the parties agreeing to keep the Agreement confidential, and agreeing to use the Supreme Court to enforce the terms in the event of breach, do point heavily to the appropriateness of a Tomlin order. This conclusion is strengthened because a number of the terms were to do with matters outside of those claimed, could not have been ordered by the Court in any event as a consent judgment, and some arose subsequently to the filing of the Claim Form. These characteristics of the contents of the Agreement, do not, as Mr. Chen argued, support the view that a new claim would have to be made on the Agreement, because such subject matter are exactly the kind that are aptly suited to be the subject of a Tomlin Order. I agree...