Margie Geddes v McDonald Millingen

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: P Williams JA,Straw JA,Phillips JA
• Judgment Date: 23 March 2018
• Neutral Citation: JM 2018 CA 63
• Year: 2018
• Docket Number: SUPREME COURT CIVIL APPEAL NO 54/2016

[2018] JMCA Civ 11

IN THE COURT OF APPEAL

Before:

THE HON Miss Justice Phillips JA

THE HON Miss Justice P Williams JA

THE HON Miss Justice Straw JA (AG)

SUPREME COURT CIVIL APPEAL NO 54/2016

Between

Margie Geddes

Appellant

and

McDonald Millingen

Respondent

Michael Hylton QC, Roderick Gordon and Miss Kareene Smith instructed by Gordon McGrath for the appellant

Vincent Chen and Makene Brown instructed by Chen Green & Co for the respondent

Phillips JA

1 I have read in draft the judgment of my sister P Williams JA. I agree with her reasoning and conclusion and have nothing to add.

P Williams JA

2 The appellant, Mrs Margie Geddes, is a former client of the respondent, McDonald Millingen, a firm of attorneys-at-law. In 2011 the respondent filed a claim against the appellant for fees for work done between 1999 and 2008, on a quantum meruit basis. On 19 April 2011, the respondent filed a bill of costs and when there were no points of dispute filed, the matter proceeded to taxation. A default costs certificate was issued against the appellant for US$1,048,807.19.

3 The respondent obtained an exparte provisional charging order on 18 December 2012, in respect of shares held by the appellant in Bardi Limited as well as shares in Desnoes and Geddes Limited, “D&G”, issued to and registered in the name of Bardi Limited. On 11 April 2013 the appellant applied to strike out the claim for costs, or in the alternative, to set aside the default costs certificate. This application was heard in March 2014 and judgment was reserved and is still being awaited at this time. An application for a final charging order was also before the court at the time, however, that matter was deferred pending the determination of the application relating to the default costs certificate.

4 In December of 2015, the appellant's attorneys-at-law were approached by attorneys-at-law for Heineken Sweden AB with an enquiry as to whether the appellant would be willing to accept an offer to purchase shares held by Bardi Limited and under her control in D&G. The attorneys-at-law for Heineken Sweden AB indicated a willingness to assist in coming to a resolution, which would permit the sale of the shares pending the outcome of the matter of the charge on the shares. The appellant was later advised that Heineken Sweden AB would be seeking to acquire majority share ownership in D&G and was offering to purchase shares at “a significant premium to the current trading price”.

5 The appellant applied to have the provisional charging order varied. The application was heard by Morrison J on 20 January 2016 and was refused. The appellant sought and was granted permission by this court to appeal this decision. On 25 May 2016, the notice and grounds of appeal were filed.

6 The learned judge did not give written reasons for his decision. Mr Hylton QC, in making submissions on behalf of the appellant, noted that there is no dispute that the findings of law set out in the grounds of appeal accurately summarize the reasons the learned judge gave orally. These findings were set out as follows:

• “a) That the Court has no jurisdiction to vary an exparte provisional charging order where a stay of execution is not in place or is not being granted.

• b) That the Court has no jurisdiction to vary an exparte provisional charging order in the absence of an appeal.”

7 Mr Hylton identified two main issues that arise in the appeal:-

• “(1) Did the learned trial judge have jurisdiction to vary the provisional order?

• (2) If he did, should he have exercised it in the appellant's favour?”

Issue 1

Submissions

8 Mr Hylton submitted that the learned judge plainly had the power to vary the provisional charging order. It was his submission that a fundamental position that exists in civil law is the jurisdiction of the court to set aside an order made exparte. The jurisdiction exists to vary or set aside exparte orders pursuant to rules 11.16 and 11.18 of the Civil Procedure Rules 2002 (“CPR”).

9 Further, Mr Hylton noted that rule 48.10 of the CPR specifically provides that the court can vary a final charging order. Thus he contended that the power to vary a final inter-partes order must include the lesser power to vary a provisional charging order. Queen's Counsel found support for this submission in an authority supplied in the respondent's submissions: W E A Records Ltd v Visions Channel 4 Ltd and others [1983] WLR 721.

10 Mr Hylton submitted that rule 26.1(7) of the CPR specifically grants the court wide discretion to vary an order made by the same court. He relied on TV v PJ [2014] EWHC 1780 (Fam) in support of this aspect of his submissions.

11 Mr Hylton noted that there are authorities that acknowledge that a charging order is in effect an equitable remedy. One such authority he referred to was from this court, Paul Hoo v Epsilon Equities Ltd [2014] JMCA Civ 1. It was his contention that such a finding is important in these proceedings as in exercising an equitable jurisdiction, the court has a wide discretion to make any order it deems fit that will achieve justice for the litigants.

12 Mr Hylton concluded his submissions on this issue by observing that this court had varied a provisional charging order in not dissimilar circumstances in DYC Fishing Limited v Perla Del Caribe Inc [2012] JMCA App 18.

13 Mr Chen submitted that the proceedings which were before the learned judge were enforcement proceedings and the jurisdiction of the court as to charging orders is to be found in Section 28D of the Judicature (Supreme Court) Act. He contended that these are specific proceedings that arise after judgment and as such, those provisions of the CPR on which Mr Hylton relied are not applicable to enforcement proceedings.

14 Mr Chen's contention therefore was that Part 11 and Part 26 of the CPR deal with issues that arise before trial and during a trial and generally matters before judgment is entered. All proceedings after judgment, being enforcement proceedings, were to be guided by those provisions relating to enforcement.

15 It was Mr Chen's submission that since the provisions of Part 48 are dealing with the coercive power of the court being brought to bear on a debtor who owes money, no other rule of the CPR can apply. If other rules were to be relied on, Mr Chen contended, this would open floodgates for interference with enforcement. He submitted that a view that any other rule applies would result in the weakening of the coercive force of the court.

16 Mr Chen referred to Finney v Hinde (1879) 4 QBD 102 and WEA Records Limited v Visions Chanel 4 Ltd in support of his submissions.

17 In response to Mr Chen's submission that the other parts of the CPR were inapplicable to Part 48, Mr Hylton invited this court to note rule 11.1 of the CPR that outlines the scope of that part.

Discussion and disposal

18 Charging orders, as a method of enforcement, did not exist in Jamaican jurisprudence prior to the passing of the CPR. The CPR replaced the Judicature (Civil Procedure Code) which was primary legislation. The CPR were made by the Rules Committee acting under the Judicature ( Rules of Court) Act and is secondary legislation.

19 In Beverly Levy v Ken Sales and Marketing Ltd [2008] UKPC 87, Lord Scott of Foscote made the following observation at paragraph 19:

“…There appears to have been no statutory power for courts in Jamaica to make charging orders until the recent enactment of legislation enabling courts to do so. That legislation came into effect on 25 March 2003 … The Civil Procedure Rules 2002, which came into effect on 1 January 2003, contain Rules relating to the making of charging orders but while Rules can regulate the exercise of an existing jurisdiction they cannot by themselves confer jurisdiction.”

20 The Privy Council was referring to the Judicature (Supreme Court) (Amendment) Act which was passed in March 2003. In particular section 28D, which in dealing with charging orders provides:

“The Court may, on application of the person prosecuting a judgment or order for the payment of money, make a charging order in accordance with the Civil Procedure Rules, 2002 in relation to the enforcement of judgments.”

21 Hence, the primary statutory provision giving the Supreme Court power to make charging orders was section 28D of the Judicature (Supreme Court) Act and the relevance and necessity of section 28D must be appreciated in that context. It does not seem that that section was creating a procedure that was to stand alone, independent of the rest of the provisions of the CPR.

22 The fact that section 28D speaks to the court making a charging order for the purpose of enforcing a judgment in accordance with the CPR, must mean that enforcement is to be in accordance with all the relevant provisions of the CPR and not just Part 48. Part 48 outlines the procedure for the making of the application, but does not contain the details necessary to give effect to the procedure. Hence, resort has to be had to other provisions of the CPR.

23 It should first be noted that rule 2.2 of the CPR provides inter alia:

• “(1) Subject to paragraph (3) these Rules apply to all civil proceedings in the court.

• (2) ‘ Civil proceedings’ include Judicial Review and applications to the court under the Constitution under Part 56.

• (3) These Rules do not apply to the following proceedings —

  • (a) insolvency (including winding up of Companies);

  • (b) proceedings when the court acts as a Prize Court; and

  • (c) any other proceedings in the court instituted any enactment, in so far as rules made under that enactment regulate those proceedings.

…” (Emphasis is as in original)

24 The argument that the application for a charging order is a part of enforcement proceedings and is therefore not a part of civil proceedings to which the CPR applies can be countered with the fact that enforcement...