RBC Royal Bank (Jamaica) Ltd and Others v Ocean Chimo Ltd

• Jurisdiction: Jamaica
• Judge: Brooks JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 15 July 2016
• Neutral Citation: JM 2016 CA 76
• Docket Number: SUPREME COURT CIVIL APPEAL NO 68/2014 APPLICATION NO 154/2014
• Court: Court of Appeal (Jamaica)
• Date: 15 July 2016

Between

Rbc Royal Bank (Jamaica) Limited

1 ^st Applicant

and

Rbc Royal Bank (Trinidad And Tobago) Limited

2 ^nd Applicant

and

Royal Bank of Canada

3 ^rd Applicant

and

Samuel Billard

4 ^th Applicant

and

Raymond Chang

5 ^th Applicant

and

Greg Smith

6 ^th Applicant

and

Ocean Chimo Limited

Respondent

[2016] JMCA App 22

Before:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice Sinclair-Haynes JA

The Hon Miss Justice P Williams JA (AG)

SUPREME COURT CIVIL APPEAL NO 68/2014

APPLICATION NO 154/2014

JAMAICA

IN THE COURT OF APPEAL

Emile Leiba and Jonathan Morgan instructed by DunnCox for the applicants

Roderick Gordon and Ms Kereene Smith instructed by Gordon McGrath for the respondent

Brooks JA

1 The resolution of this application turns on whether time runs during the long legal vacation for the purposes of filing and serving a notice of appeal. If time does not run, the applicants would not have been out of time in the service of the written submissions as required by the Court of Appeal Rules 2002 (CAR), as they existed in August 2014, before being amended. If it is that time did run for those purposes, the applicants ought to have served the submissions at the same time that they served the notice of appeal. Their failure to do so would mean that they are obliged to apply for an extension of time within which to do so and be subject to the rigours of such an application.

2 An ancillary point concerns the place that some procedural appeals hold under the rules of this court.

The order in the court below

3 RBC Royal Bank (Jamaica) Limited, RBC Royal Bank (Trinidad and Tobago) Limited, Samuel Billard, Raymond Chang and Greg Smith are the applicants mentioned above. They are defendants to a claim filed by Ocean Chimo Limited (Ocean Chimo) in the Commercial Division of the Supreme Court. Although, after the claim had been filed, two of the applicants placed Ocean Chimo into receivership, Ocean Chimo, nonetheless, pursued the claim. The applicants applied for a stay of proceedings pending Ocean Chimo providing proof that it either had the consent of the receiver to pursue the claim, or that its directors had provided security for the costs of the claim. The applicants also sought an order that in the absence of such proof, the claim be struck out. C Edwards J refused the applications. She however granted permission to appeal from her order. That order was made on 31 July 2014, the last day of the court's term, before the commencement of the long legal vacation.

The procedure adopted by the applicants

4 On 11 August 2014, the applicants filed their joint notice and grounds of appeal, along with their written submissions in support of their appeal. As it turns out, assuming that time did run during the long vacation, that filing would have been within the time required by the CAR whether the requirement for filing were seven days, as for a procedural appeal, or 14 days, as for an interlocutory appeal. That is because, for a procedural appeal, neither weekends nor the two public holidays, falling during that time, were to have been counted. The last day for filing for a procedural appeal would, therefore, have been 12 August 2014, while for an interlocutory appeal, the last day for filing would have been 14 August 2014.

5 The applicants' attorneys-at-law, however, made an error. Whilst they did serve the notice of appeal on the same day that they filed it, they only served the first page of the written submissions along with the notice of appeal. On 28 August 2014, Ocean Chimo's attorneys-at-law pointed out the fact of the defective service. The applicants' attorneys-at-law corrected the defect on the following day. Based on advice from the registry of this court, they, on 10 September 2014, filed an application for time to be extended for the filing of the notice of appeal and the submissions in support. That application has been relisted, and is the application which is presently before the court. Ocean Chimo has sought to resist the application.

The submissions on behalf of the applicants

6 Mr Leiba, on behalf of the applicants, argued along two broad bases in support of the application. Firstly, he submitted that the registry was incorrect in requiring an application for extension of time. Secondly, and alternatively, he argued that if the court were not in agreement with his first submission, this was a good case for it to exercise its discretion and extend the time.

7 In respect of his first line of approach, Mr Leiba submitted that since Edwards J's order was made on the last day of the legal term, and that time for filing and serving the notice of appeal did not run during the legal vacation, the filing, and the corrected service of the notice and grounds of appeal and the submissions in support thereof, were not out of time. On his submissions, time would only begin to run again, at the beginning of the new term on 16 September 2014, by which time the filing and corrected service had already been effected. On that basis, therefore, no application to extend time was needed. He relied on, in support of his submissions, the judgment in Michael Stern v Richard Edward Azan and Haskell Thompson Application No 122/2008 (delivered 19 September 2008).

8 His alternative submission was that if time did run during the legal vacation then the short time for the continuation of the default, the excusable reason for the default, the likelihood of success of the appeal and the absence of any real prejudice to Ocean Chimo, made this a good case for the court to exercise its discretion and grant the extension sought in the application. He cited, among others Shurendy Adelson Quant v The Minister of National Security and the Attorney General of Jamaica [2014] JMCA App 23, in support of his submissions on this point.

The submissions on behalf of Ocean Chimo

9 Mr Gordon countered Mr Leiba on both limbs of the latter's major submissions. Firstly, Mr Gordon argued that, as this was a procedural appeal for the purposes of rule 2.4 of the CAR, the submissions ought to have been filed and served with the notice of appeal within the time specified by the CAR. The applicants had failed to observe that time limit and were, therefore, in default of the rule, and needed to apply for an extension of time. The legal vacation, learned counsel submitted, did not assist the applicants as this was not a situation in which time did not run during the legal vacation.

10 It seemed, at one stage, that Mr Gordon had posited that if a party opted to file its appeal during the long vacation, it was required to comply with the rules. Having failed to serve the submissions with the notice of appeal, the applicants were in fact in breach of rule 2.4(1). They, therefore, needed an order of the court to rectify their situation.

11 In respect of the application for extension of time, Mr Gordon submitted that in such applications, the reason proffered for the delay is of paramount importance. He argued that the authorities established that where no excuse is given, no indulgence ought to be granted. In this case, learned counsel submitted, no sufficient reason had been tendered and thus the application had failed that critical test. He further argued that the applicants' appeal was unmeritorious and that the delay had prejudiced Ocean Chimo and caused it to incur additional expense. Learned counsel relied on a number of cases including Peter Haddad v Donald Silvera SCCA No 31/2003 (delivered 31 July 2007), Elita Flickenger v David Preble and Another [2013] JMCA App 13, David Wong Ken v National Investment Bank of Jamaica Limited and Others [2013] JMCA App 14 and Attorney General v Universal Projects Ltd [2011] UKPC 37.

The issue of whether the applicants served within the stipulated time

12 On the question of whether or not this was a procedural appeal, Mr Leiba argued that this was not a procedural appeal for the purposes of rule 1.11(1) of the CAR, which stipulates the time for filing the notice of appeal. He agreed, however, that it was a procedural appeal for the purposes of rule 2.4 of CAR, which stipulates the time for filing and serving written submissions in respect of the appeal. Mr Gordon, after some initial resistance, accepted the position taken by Mr Leiba in respect of these rules.

13 It may be said, then, that the parties eventually agreed that the applicants were allowed 14 days for the filing and service of their notice of appeal, as is required by rule 1.11(1)(b) of the CAR but that they were obliged to file and serve their written submissions with the notice of appeal, as is required by rule 2.4(1) of the CAR.

14 In analysing this aspect of the application, it should be noted that this is not a case where the failure to serve the submissions invalidated the appeal. The appeal remained valid regardless of any irregularity of the service (see Hoip Gregory v Vincent Armstrong [2012] JMCA App 21). The issue that is to be resolved at this stage, concerns the service, and in particular whether or not the service was within the time stipulated by the CAR.

15 The term ‘procedural appeal’ is defined in 1.1(8) of the CAR as meaning ‘an appeal from a decision of the court below which does not directly decide the substantive issues in a claim’. There are certain exceptions stipulated in the rule but none of those exceptions apply here.

16 The time for filing and serving notices of appeal, including procedural appeals, is stipulated in rule 1.11 of the CAR. Prior to 10 September 2015, that rule stipulated as follows:

• ‘(1) The notice of appeal must be filed at the registry and served in accordance with rule 1.15 -

  • (a) in the case of a procedural appeal, within 7 days of the date the decision appealed against was made;

  • (b) where permission is required , within 14 days of the date when such permission was...