Rayton Manufacturing Ltd et Al v Workers Savings & Loan Bank Ltd et Al

• Jurisdiction: Jamaica
• Judge: SMITH. J.A: , MORRISON. J.A: Introduction , MCINTOSH J.A. (Ag) , SMITH, J.A.
• Judgment Date: 30 July 2009
• Neutral Citation: JM 2009 CA 81
• Judgment citation (vLex): [2009] 7 JJC 3004
• Date: 30 July 2009
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR JUSTICE SMITH, J.A THE HON. MR JUSTICE MORRISON, J.A THE HON. MRS JUSTICE McINTOSH, J.A. (Ag.)

APPLICATION NO. 36/09

BETWEEN

RAYTON MANUFACTURING LTD

1 ^ST APPELLANT

BROTHERS PROGRESSIVE LTD

2 ^ND APPELLANT

RMC COMMERCIAL EQUIPMENT LTD

3 ^RD APPELLANT

RAYMOND HUGH

4 ^TH APPELLANT

ANTONIO HUGH

5 ^TH APPELLANT

AND

WORKERS SAVINGS & LOAN BANK LTD

1 ^st RESPONDENT

CORPORATE MERCHANT BANK LTD

2 ^ND RESPONDENT

FINANCIAL SECTOR ADJUSTMENT CO. LTD

3 ^RD RESPONDENT

REFIN TRUST LTD

4 ^TH RESPONDENT

Mrs Sandra Minott-Phillips and Mr Gavin Goffe, instructed by Myers, Fletcher and Gordon, for the applicants/respondents

Mr Paul Beswick and Mr Christopher Dunkley, instructed by Phillipson Partners, for the respondents/appellants

CIVIL PROCEDURE - Notice to strike out - Notice of appeal - Civil Procedure Rules 2002, Rule 73 - Costs

SMITH. J.A:

I have read in draft the judgment of Morrison JA and I agree entirely with his reasoning and conclusion. There is nothing further that I wish to add.

MORRISON. J.A: Introduction

Introduction

1 This matter comes before the court on a Notice of Application for Court Orders dated 24 February 2009 filed by the applicants/respondents for an order striking out the Notice of Appeal dated 11 February 2009 filed by the respondents/appellants. For easy reference, I will in this judgment refer to the applicants/respondents as "Workers Bank" and the respondents/appellants as "Rayton".

2 The appeal itself is from an order made by Rattray J on a case management conference on 2 February 2009 in the following terms:

• "1. The Case Management Conference of February 2, 2009 cannot proceed at this time as this matter was struck out pursuant to part 73.3 (8) as amended of the Civil Procedure Rules 2002;

• 2. No order as to costs."

3 The grounds of the application are as follows:

• "1. No right of appeal exists from proceedings which are non-existent because they were automatically struck out.

• 2. Further, or in the alternative, the order of Rattray, J. delivered on 2nd day of February, 2009 is an interlocutory one in respect of which permission to appeal is required by virtue of section ll(l)(f) of the Judicature (Appellate Jurisdiction) Act.

• 3. The Appellants neither sought permission to appeal, nor was it granted in the Court below.

• 4. Further, or in the alternative, The Court of Appeal Rules section 1.11(1)(a) requires an Appellant to file a Notice of Appeal within seven (7) days of the date the decision appealed against was made.

• 5. The Appellants filed a Notice of Appeal on February 12, 2009, ten (10) days after the order of Rattray, J."

The background

4 The matter arises in this way. On 12 February 2002, Rayton filed a Writ of Summons and Statement of Claim against Workers Bank in the Supreme Court (Suit No. C.L. 2002/R-011). Nothing now turns on the details of the claim itself. This action was consolidated with another action involving the same defendants (Suit No. C.L. 2002/H-020). In September 2002, the proceedings having been served and no defence having been filed, Rayton by Notice of Motion dated 10 September 2002 sought leave to enter judgment in default of defence. The motion was heard by Reid J, who on 30 May 2003 made an order denying it, with costs to Rayton. On that same day, the judge also made an order that a defence which had been filed out of time by Workers Bank on 23 September 2002 should stand. Leave to appeal was however granted to Rayton.

5 Rayton filed an appeal against the orders made by Reid J (Supreme Court Civil Appeal No. 43/03) on 5 June 2003 and on 2 June 2005, Paul Harrison JA (as he then was) dismissed a preliminary objection taken to the appeal by Workers Bank and ordered that it be placed before the court for hearing. When the appeal came on for hearing on 26 September 2005, it was withdrawn, with each party bearing its own costs and on 4 October 2005, pursuant to the order of the court, formal Notice of Withdrawal of Appeal was filed by Rayton. In an affidavit filed in this application, Mr Christopher Dunkley, counsel for Rayton, stated that the appeal was withdrawn in order "to facilitate the trial process" and that, before the appeal was actually withdrawn, Mrs Sandra Minott-Phillips, counsel for Workers Bank, had been informed that this was a step being considered by Rayton.

6 The action then shifted back to the Supreme Court and on 3 April 2007 Rayton's attorneys-at-law (in a letter copied to Workers Bank's attorneys-at-law) wrote to the Registrar as follows:

"In keeping with the Civil Procedure Rules, we hereby request that the captioned claims be set down for Case Management Conference herein. We await the earliest available date."

7 By notice dated 26 September 2008, the Registrar advised the parties that a Case Management Conference had been scheduled for 2 February 2008. Workers Bank immediately protested, its attorneys-at-law writing to the Registrar on 3 October 2008 to make the point that the proceedings were 'old proceedings' within the meaning of the Civil Procedure Rules ("CPR") and that, no request for case management having been made by 31 December 2003, they had been, in accordance with rule 73.3(8), "automatically struck out without the need for an application by any party". The letter referred the Registrar to the decision of Smith JA in Norma McNaughty v Clifton Wright et al (Supreme Court Civil Appeal No. 20/2005, judgment delivered 25 May 2005) and invited her to withdraw the notice of the case management conference and to confirm that the matter had been "automatically struck out as provided by law". Rayton responded immediately through their attorneys-at-law by letter dated 6 October 2008, saying that "we hold the view that the matter is properly before the court", while acknowledging nevertheless that Workers Bank was entitled to raise the point about the action having been automatically struck out at the case management conference.

8 The case management conference accordingly proceeded before Rattray J on 2 February 2009, with the result set out at paragraph 2 above. On 12 February 2009 Rayton filed an appeal from this decision on the following grounds:

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