Shurendy Quant v Minister of National Security & Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: Mangatal JA (Ag)
• Judgment Date: 29 July 2014
• Neutral Citation: JM 2014 CA 74,[2014] JMCA App 23
• Docket Number: CIVIL APPEAL NO 83/2013 APPLICATION NO 151/2013
• Court: Court of Appeal (Jamaica)
• Date: 29 July 2014

[2014] JMCA App 23

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

CIVIL APPEAL NO 83/2013

APPLICATION NO 151/2013

Between

Shurendy Adelson Quant

Appellant

and

The Minister of National Security

1st Respondent

and

The Attorney General of Jamaica

2nd Respondent

Ransford Braham QC and Chukwuemeka Cameron instructed by Carolyn C Reid & Co for the applicant

Michael Hylton QC and Miss Shanique Scott instructed by Hylton Powell for the 1st respondent

Miss Tamara Dickens instructed by the Director of State Proceedings for the 2nd respondent

CIVIL PROCEDURE - Order for security for costs - Application for extension of time to file and serve written submissions - Court of Appeal Rules, Rule 2.4

IN CHAMBERS

Mangatal JA (Ag)

1 A procedural appeal was filed on behalf of the appellant Shurendy Adelson Quant (“the applicant”) on 17 October 2013, in relation to a decision of Marsh J made on 10 October 2013. On the application of the 1 ^st respondent, the Minister of National Security and Justice (“the Minister”), Marsh J made an order for security for costs in his favour. The applicant's written submissions in respect of the appeal were not filed and served at the same time as the notice of appeal was filed. The submissions were not filed until 24 October 2013 and were not served on the Minister until 13 November 2013.

2 This is an application filed on 15 November 2013, by which the applicant seeks an extension of time to file and serve the written submissions. The application as originally filed sought only time to file the submissions out of time. However, as a result of an application to amend made and granted at the hearing, the applicant clarified that he also seeks an extension to serve the written submissions out of time.

3 Some of the stated grounds of the application are as follows:

• ‘1…

• 2. The Appellant has to date not received a copy of the written

• Judgment and as such was hampered in preparing the Written Submissions in a timely manner.

• 3. The time that ought to have been spent on preparing the Written Submissions was spent preparing the notes of the oral Judgment.

• 4. The length of time taken to file the Written Submissions was in no way inordinate [sic] at worst it was three (3) days out of time.

• 5. The Appellant have [sic] a good chance of success based on a perusal of the grounds of Appeal and the Written Submissions.

• 6. The Respondents have not been prejudiced by the delay of three (3) days.’

4 Rules 2.4(1), (2), (4) and (6) of the Court of Appeal Rules (“the CAR”) provide as follows:

‘ Procedural appeal

2.4 (1) On a procedural appeal the appellant must file and serve written submissions in support of the appeal with the notice of appeal.

(2) The respondent may within 7 days of receipt of the notice of appeal file and serve on the appellant any written submissions in opposition to the appeal or in support of any cross appeal.

…

(4) The general rule is that consideration of the appeal must take place not less than 14 days nor more than 28 days after filing of the notice of appeal.

…

(6) The general rule is that any oral hearing must take place within 42 days of the filing of the notice of appeal.’

5 The application is supported by the affidavit of Chukwuemeka Cameron, attorney-at-law, being one of the attorneys-at-law on the record for the applicant. In that affidavit, Mr Cameron at paragraph 17 stated that ‘… bearing in mind that weekends are not counted when parties are required to file documents within … (7) days and that the 21 ^st of October was a public holiday the Written Submissions were at most …(2) days out of time or …(3) days after the Notice of Appeal was filed’.

6 In paragraphs 13 and 14 of the affidavit, the applicant's attorney stated that the reason for the delay is that he did not have the written judgment and was therefore hampered in preparing the written submissions in a timely manner. Further, that the time that should have been spent preparing the written submissions was instead spent preparing the notes of oral judgment.

7 On 10 October 2013, Marsh J made the following orders:

• ‘1. The Claimant's application to strike out paragraphs 6 & 7 of the Affidavit of Sundiata Gibbs filed on July 19, 2013 is dismissed;

• 2. The Claimant gives security for the 1 ^st Defendant's costs of this claim in the sum of $1,596,000.00 on or before 30 days from the date of this order, i.e. by November 9, 2013;

• 3. The sum of $1,596,000.00 is to be paid into an interest bearing account in the joint names of the Claimant's and the 1 ^st Defendant's attorneys-at-law pending the outcome of the claim;

• 4. If the Claimant fails to provide the security within the stipulated period, the claim is struck out with costs to the 1 ^st Defendant;

• 5. Costs of the applications to the 1 ^st Defendant to be taxed if not agreed; and

• 6. Leave to appeal granted to the Claimant.’

8 The applicant has filed a notice of appeal against the orders listed at paragraphs 1, 2, 3 and 5 only.

9 When the matter arose for hearing on 3 July 2014, learned Queen's Counsel, Mr Hylton, who appeared for the Minister, took a preliminary point. It was pointed out that one of the orders made by Marsh J was that the claim is to be struck out if the applicant fails to provide the security within the stipulated time (“the Strikeout Order”). A sanction was therefore imposed in the event that the applicant did not comply with the order requiring him to pay the security for costs (“the Order for Security”).

10 Mr Hylton further pointed out that the applicant did not apply for a stay of execution of the Order for Security and was therefore obliged to pay the security for costs by 9 November 2013. Learned counsel argued that the applicant did not pay the security within the stipulated time and as a result his claim was struck out.

11 It was submitted that this court should not hear the applicant's extension of time application for the following reasons:

• (a) There is no pending claim; and

• (b) The claim cannot be reinstated if the appeal is granted.

12 In support of those submissions, reference was made to rule 26.7(2) of the Civil

Procedure Rules 2002 (“the CPR”), which provides that:

‘Where a party has failed to comply with any of these Rules, a direction or any order, any sanction for non-compliance imposed by the rule, direction or the order has effect unless the party in default applies for and obtains relief from the sanction….’

13 What this means, the submission continues, is that the claim remains struck out unless the applicant applies for and obtains relief from the sanction that was imposed for him having failed to comply with the Order for Security. Since the applicant has not applied for relief from the sanction there is, the argument continued, presently no pending claim on which the appeal can be based. Consequently, it was argued, that the court could not hear the appeal.

14 It was further posited that even if this court can hear the appeal, it cannot reinstate the claim because the applicant did not appeal against the Strikeout Order, as shown by the notice of appeal.

15 Miss Dickens, who appeared for the 2 ^nd Respondent, the Attorney General, adopted the submissions of Mr Hylton QC.

16 Mr Braham QC in response on behalf of the applicant argued that the appeal seeks that the order of Marsh J be set aside — see paragraph 4 of the notice of appeal under the heading ‘Orders sought’. He candidly conceded that it would have been convenient and clearer to have included in the notice of appeal, a specific ground dealing with the Strikeout Order. However, he contends that it was not necessary so to do because the learned judge made certain fundamental orders, i.e. the Order for Security, and he also made consequential orders, such as the Strikeout Order. If one is, for example, learned counsel posited, faced with an order striking out a claim, one can still appeal that striking out order, even if, (as would obviously be the case), the claim no longer stood. Reference was made to the Judicature (Appellate Jurisdiction) Act, and the rights of appeal therein granted and protected. Mr. Braham submitted that the fulcrum of the order was really the Order for Security, and it must follow that the Court of Appeal would be entitled to set aside the Strikeout Order. Reference was made to rule 2.15 of the CAR. Rules 2.15(a), (b) (a), (b), and (4) state:

‘Powers of the court

2.15 In relation to a civil appeal the court has the powers set out in rule 1.7 and in addition —

• (a) all the powers and duties of the Supreme Court including in particular the powers set out in CPR Part 26; and

• (b) power to —

  • (a) affirm, set aside or vary any judgment made or given by the court below;

  • (b) give any judgment or make any order which, in its opinion, ought to have been made by the court below;

(4) The court may exercise its powers in relation to the whole or any part of an order of the court below.’

Ruling on Preliminary Point

17 I ruled that the preliminary point should be dismissed and that it was appropriate for me to hear the application. This was because:

• (a) the fact that there may be no pending claim, (as argued in the Minister's written submissions), does not affect the applicant's appeal, and

• (b) the Court of Appeal has wide powers as set out in rule 2.15 of the CAR, to which Mr Braham referred, including powers to set aside or vary any judgment or order of the court below.

18 In relation to (a), it seems to me that the appeal has a life independent of the existence of the claim. In relation to (b), I expressed the view, in agreement with Mr Braham, that the fulcrum of the order of Marsh J was the Order for Security. It seemed to me that the respondents could therefore yet argue about whether the claim could or...