Nordbuild Ltd v Charmaine Bowen

• Jurisdiction: Jamaica
• Judge: Brown JA (AG),Fraser JA,Brooks P
• Judgment Date: 26 May 2021
• Neutral Citation: [2021] JMCA Civ 14
• Docket Number: APPLICATION NO COA2021APP00039
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON Mr Justice Brooks P

THE HON Mr Justice Fraser JA

THE HON Mr Justice Brown JA (AG)

APPLICATION NO COA2021APP00039

Between

Nordbuild Limited

1 ^st Applicant

and

Charmaine Bowen

2 ^nd Applicant

and

The Attorney General for Jamaica

Respondent

Ms Charmaine Bowen in person and representing the 1 ^st applicant

Ms Faith Hall and Ms Nicola Richards instructed by The Director of State Proceedings for the respondent and the Registrar of Titles, the 2 ^nd ancillary defendant in the court below

Mrs Daniella Gentles-Silvera and Ms Kathryn Williams instructed by Livingston Alexander and Levy for Victoria Mutual Building Society Limited, Livingston Alexander and Levy, Daniella Gentles-Silvera and Kathryn Williams, the 3 ^rd, 7 ^th and 8 ^th ancillary defendants in the court below

Ms Carlene Larmond instructed by Patterson Mair Hamilton for National Commercial Bank, Patterson Mair Hamilton, Jerome Spencer and Kimberly Diedrick, the 4 ^th, 5 ^th and 6 ^th ancillary defendants in the court below

Brooks P

1 On 18 December 2020, Bertram-Linton J declared Nordbuild Limited and it managing director, Ms Charmaine Bowen (together referred to hereafter as ‘the applicants’), to be vexatious litigants. The declaration was made on an application by the Attorney General for Jamaica, pursuant to the Vexatious Actions Act (‘the VAA’). The applicants now seek an extension of time within which to file an appeal from that declaration, so as to have it set aside. The Attorney General and other parties, with whom the applicants have been in litigation, oppose it. Those other parties were among the ancillary defendants in the court below. They have not been named as respondents to this application, but were served with the documents. Those who have appeared before the court will, therefore, be treated as respondents.

2 In deciding whether to grant such an application, the court considers a number of issues. Different cases require the emphasis on one or more of the issues that must be considered. This case requires more stress to be placed on considering whether the applicants' proposed appeal has a real prospect of success. Before considering the usual issues however, it may be helpful, as a backdrop to identify the reason and effect of declaring a person to be a vexatious litigant.

The relevant law

3 Section 2 of the VAA stipulates that it is the Attorney General who may apply for a person to be declared a vexatious litigant. Before granting the application, a judge of the Supreme Court must give the party, who is to be affected by the proposed order, the opportunity to be heard. The order should only be made if the court is satisfied that that party has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings. Whether or not the order is made, is within the discretion of the judge who hears the application. The section states:

“2.-(1) If, on an application made by the AttorneyGeneral under this section, the Supreme Court is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the Supreme Court or in any inferior Court, and whether against the same person or against different persons, the Court may, after hearing that person or giving him an opportunity of being heard, order that no legal proceedings shall without the leave of the Supreme Court or a Judge thereof be instituted by him in any Court, and such leave shall not be given unless the Court or Judge is satisfied that the proceedings are not an abuse of the process of the Court and that there is prima facie ground for the proceedings.

(2) A copy of any order made under this section shall be published in the Gazette.”

4 Where an order is made under section 2 of the VAA, the affected party is prohibited from instituting any legal proceedings without the prior approval of the Supreme Court, or a judge of that court.

How did Nordbuild and Ms Bowen get to this point?

5 The various cases, about which the Attorney General has complained, have their respective genesis in loan transactions. The first set of cases involved Ms Bowen alone. She borrowed money from Island Victoria Bank (‘IVB’) and secured the loan and overdraft facilities by mortgages of two real estate holdings. She defaulted in servicing the loans and IVB's successor financial institutions sought to realise the security. Ms Bowen denied being indebted and sued IVB, as well as all the successor financial institutions, to prevent the sale of her properties.

6 Nordbuild borrowed from National Commercial Bank (‘NCB’) and Victoria Mutual Building Society (‘VMBS’) in order to finance its development of land to build an apartment complex. Nordbuild complained that NCB, by maliciously classifying it a bad debtor and refusing to activate a loan facility, hampered its business. The malice, Nordbuild alleged, arose from Ms Bowen's rejection of the sexual advances of one of NCB's officers.

7 Nordbuild's complaints against VMBS arose from disputes over mortgages granted to VMBS of the property being used for the project. It fell into arrears with the repayment of the loan, and sought to negotiate a settlement with VMBS. Each side alleged that the other had failed to perform its end of the negotiated settlement. VMBS sought to sell two of the apartments to realise its security, and Nordbuild sued to prevent the sale.

8 The respective claims filed by Ms Bowen and Nordbuild, separately and jointly, will be set out in greater detail below. In some of them the applicants were assisted by counsel. In others they were self-represented. Each case went through various amendments during its lifetime. Appeals from decisions made in the Supreme Court in respect of some of them, were considered by this court. In one case Nordbuild even sought leave from Her Majesty in Council, to appeal from this court's decision.

The present application

9 Shortly after Bertram-Linton J made the declaration under the VAA, the applicants filed, in this court, a number of documents, by which they sought to challenge the order. They did so without legal representation and their efforts were misguided. It is unnecessary to traverse those efforts, because the Attorney General and the various respondents, whom the applicants served with the documents, and who have appeared before the court, have agreed that this court should treat the documents before it as an application for an extension of time, as has already been mentioned.

10 The law governing such applications is now well settled, and reference to the judgment of Panton JA, as he then was, in Leymon Strachan v The Gleaner Company Ltd and Stokes (unreported), Court of Appeal, Jamaica, Motion No 12/1999, judgment delivered 6 December 1999, is almost standard procedure. In that case, Panton JA outlined the court's considerations when determining whether to grant an application for extension of time to file an appeal. He said, in part, at page 20 that:

The analysis that will follow will be so guided, but with a slight truncation.

• “(1) Rules of court providing a time-table for the conduct of litigation must, prima facie, be obeyed.

• (2) Where there has been a non-compliance with a timetable the Court has a discretion to extend time.

• (3) In exercising its discretion the court will consider-

  • (i) the length of the delay;

  • (ii) the reasons for the delay;

  • (iii) whether there is an arguable case for an appeal and; [sic]

  • (iv) the degree of prejudice to the other parties if time is extended.

• (4) Notwithstanding the absence of a good reason for delay, the Court is not bound to reject an application for extension of time, as the overriding principle is that justice has to be done.” (Emphasis supplied)

11 The respondents, who have appeared and are represented before the court are the Attorney General, the Registrar of Titles, VMBS, NCB, Patterson Mair Hamilton, Mr Jerome Spencer, Miss Kimberley Diedrick, Livingston Alexander & Levy, Mrs Daniella Gentles-Silvera and Ms Kathryn Williams (collectively referred to hereafter as ‘the respondents’), contend that the issues of the length of the delay and the reasons for the delay need not detain the court. The respondents do not rely on them because they accept that the applicants, at an early stage, demonstrated an intention to contest Bertram-Linton J's order. The respondents lay their stress on the issue of whether there is an arguable appeal. It is, therefore, that issue that will next be assessed.

Is there an arguable case for an appeal?

12 The applicants, through Ms Bowen, have identified four main areas in which, they say, the impugned order is fatally flawed. These are:

• a. the status of the Attorney General prohibited her from properly instituting the application under the VAA;

• b. the breach of the applicants' rights by Bertram-Linton J in refusing to grant an adjournment to the applicants to allow Nordbuild to get legal representation in the matter;

• c. the error by Bertram-Linton J in finding that the Attorney General had satisfied the requirements of section 2 of the VAA; and

• d. the error by Bertram-Linton J in failing to recognise that:

  • i. Nordbuild and Ms Bowen had separate identities; and

  • ii. there was no abuse of the court's processes by Nordbuild, as it had filed no fresh claim in respect of any matter in which there had been a final judgment.

The status of the Attorney General

13 The applicants assert that the Attorney General should be considered prohibited from instituting the application pursuant to the VAA, because the Attorney General had not discharged her liability under the various claims by the applicants. The essence of the complaint is that the Attorney General has an interest to serve in seeking to prevent the applicants from pursing their claims. The applicants contend that the Attorney...