Vendryes (Dorothy) v Dr. Richard Keane and Karene Keane

• Jurisdiction: Jamaica
• Judge: MCINTOSH, J.A. (Ag)
• Judgment Date: 30 July 2010
• Neutral Citation: JM 2010 CA 118
• Judgment citation (vLex): [2010] 7 JJC 3009
• Court: Court of Appeal (Jamaica)
• Date: 30 July 2010

[2010] JMCA App 12

IN THE COURT OF APPEAL

BETWEEN

DOROTHY VENDRYES

APPELLANT

AND

DR. RICHARD KEANE

1 ^ST RESPONDENT

AND

KARENE KEANE

2 ^ND RESPONDENT

Mr Andre Earle and Miss Anna Gracie instructed by Rattray, Patterson, Rattray, for the Appellant.

Mr Nigel Jones and Mr Jason Jones, instructed by Nigel Jones & Co. for the 1 ^st and 2 ^nd Respondents

CIVIL PROCEDURE - Appeal - Application to dismiss - Court of Appeal Rules, Rule 2.20 - Failure to comply with court rules

1 IN CHAMBERS

MCINTOSH, J.A. (Ag)

2 [1] The appellant and the respondents each filed a Notice of Application for Court Orders in this matter. In their application, filed on April 14, 2010, (No. 69/2010), the respondents sought the orders pursuant to rule 2.20(1) of the Court of Appeal Rules (the CAR), namely that:

"1. The Appellant's Appeal be dismissed for failure to comply with Rules 2.6(1)(c) and 2.7(3)(iii);

2. Cost of the Application and the Appeal to the Respondents."

3 [2] They based their application on the following four grounds:

"a. Skeleton Arguments have been filed by the Appellant as contemplated by the Court of Appeal Rules;

b. The Appellant has failed to file a Record as contemplated by the Court of Appeal Rules;

c. The Appellant has failed to take any meaningful step and/or any step at all to prosecute the Appeal;

d. The respondents are desirous to bring closure to a matter in which there has been a history of failure by the appellant to comply with the Rules of the Supreme Court and Court of Appeal."

4 [3] On the other hand, the appellant filed her application on May 4, 2010, (No. 82/2010) and the orders she sought were that:—

"I. The time for filing the Appellant's Skeleton Arguments and Chronology be varied and extended to 3 ^rd May, 2010;

II. The time for filing the Record of Appeal be varied and extended to 3 ^rd May, 2010;

III. Further, or in the alternative, the Appellant be granted relief from any sanctions imposed pursuant to her failure to comply with the Court of Appeal Rules;

iv. Costs of this application to be costs in the Appeal;"

5 [4] She relied on the following six grounds for her application:

"1. That the failure to comply by the Appellant has not been intentional;

2. The Appellant has a good reason for her failure to comply with the rules;

3. That the Appellant is in a position to comply with the rules by the date specified herein;

4. The Respondent will not be unduly prejudiced by the delay;

5. The Court may utilize this hearing as the Case Management Conference and fix the date for the Appeal;

6. That the Claimant (sic) will be unduly prejudiced if the order is not varied."

6 [5] Having determined that the hearing would commence with the application for extension of time (since the principles in both applications and the arguments would be similar and the outcome of this application would determine the fate of the other), the court heard submissions in that regard, on June 8, 2010, reserving its decision to June 18, 2010. Then, on the latter date, the court handed down the decision which is set out below, with a promise, now being fulfilled, to provide written reasons for the orders made:

• 1. The time for filing the appellant's skeleton arguments, chronology of events and the record of appeal is extended to 3 ^rd May, 2010;

• 2. The appellant's skeleton arguments and chronology of events filed on the 29 ^th April, 2010 and the record of appeal filed on 3 ^rd May, 2010 be allowed to stand; and

• 3. Costs of the application to the respondents to be taxed if not agreed.

7 Then followed case management orders for the conduct of the appeal which was set for hearing in the week commencing on October 25, 2010 and the order refusing the respondents' application to dismiss, with no order as to costs.

8 [6] The appellant's application was supported by an affidavit from Miss Anna Gracie, sworn to on May 3, 2010, (hereafter "the Gracie affidavit"), in which she advanced an explanation for the delay in filing the outstanding items. She referred to the affidavit of Mr. Jason Jones which was filed on April 14, 2010, in support of the respondents' application to dismiss and stated that it was the receipt of those documents that alerted her to the change in the rules which now provided that where no evidence had been received by the court the appellant could proceed to prepare and file the record of appeal. The appellant has since filed and served the skeleton submissions and the chronology of events and, the record of appeal, though now filed, is yet to be served on the respondents. This, she said, would shortly be done (and indeed it was later said to have been served on May 3, 2010).

9 [7] Miss Grade challenged the averment in paragraph 9 of Mr Jones' affidavit which spoke to prejudice being suffered, by the respondents, from the appellant's delay in bringing this matter to a conclusion. On the contrary, Miss Grade stated, it was the appellant's contention that she had been prejudiced by the respondents' conduct as they had rendered her incapable of keeping her mortgage obligations, resulting in the loss of her home. Everything is now in place, however, for the matter to proceed to a hearing of the appeal.

10 THE APPLICABLE RULES

11 [8] The application was made by virtue of the provisions of rule 1.7 of the CAR which deal with the court's general powers of management of its cases, the applicant relying particularly on the power given to the court in rule 1.7(2)(b) to:

"extend or shorten the time for compliance with any rule, practice direction, order or direction of the court even if the application for an extension is made after the time for compliance has passed."

12 [9] Compliance with the said rules, as amended on August 18, 2006, requires adherence to the following regime, where, as in the instant case, the appeal is from the Supreme Court and no oral evidence was taken (see rule 2.5(4)):

• i) Filing and serving of skeleton arguments within 21 days of the filing of the notice of appeal (rule 2.6(1) (c)), together with a written chronology of events, relevant to the appeal, cross-referenced to the core bundle or record of appeal (rule 2.6(5));

• ii) Parties in the matter informing the appellant about the documents they wish to have included in the record or core bundle, said information being supplied within 14 days of the filing of the notice of appeal (rule 2.7(2) (c));

  (The framers of our rules may well need to revisit this rule as it is not immediately clear how the parties would know when the 14 days would run without service of the notice of appeal on them.);

• iii) Preparing and filing with the registry four sets of the record of appeal, for the use of the court, within 28 days of the filing of the notice of appeal (see rule 2.7(3) (c)); and

• iv) Serving forthwith one copy of the record of appeal ... on every respondent (rule 2.7(5)).

13 [10] Rule 2.20 provides sanctions for non-compliance with the rules on the application of a party or on the Registrar's report of the default to the court and rule 2.20(4) provides that " CPR rule 26.8 (relief from sanctions) applies to any application for relief."

14 [11 ] Rule 26.8 of the Civil Procedure Rules, 2002 (the CPR) sets out the requirements for such an application. It reads as follows:

"26.8

• (1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be —

  • (a) made promptly; and

  • (b) supported by evidence on affidavit.

• (2) The court may grant relief only if it is satisfied that —

  • (a) the failure to comply was not intentional;

  • (b) there is a good explanation for the failure; and

  • (c) the party in default has generally complied with all other relevant rules, practice directions orders and directions.

• (3) In considering whether to grant relief, the court must have regard to:

  • (a) the interests of the administration of justice;

  • (b) whether the failure to comply was due to the party or that party's attorney-at-law;

  • (c) whether the failure to comply has been or can be remedied within a reasonable time;

  • (d) whether the trial date or any likely trial date can still be met if relief is granted; and

  • (e) the effect which the granting of relief or not would have on each party."

15 A CHRONOLOGY OF EVENTS RELEVANT TO THE APPLICATION

16 [12] I turn now to the events which have given rise to the application.

17 [13] The first date of relevance was July 17, 2009 when Sykes J, delivered an oral judgment in the matter. That occasioned prompt response from the appellant, who filed notice of appeal on July 24, 2009, well within the time allowed by the rules (see rule 1.11). That meant that the appellant had twenty-one days thereafter to file her skeleton arguments accompanied by a written chronology of events, in compliance with rule 2.6(1)(c) and 2.6(5). It can therefore safely be said that to do so on April 29, 2010, just over nine (9) months later, was not in compliance with the rules.

18 [14] The next relevant date was the date of filing of the record of appeal. That should have been within twenty-eight days of July 24, 2009 which, by my calculation, would have been by August 21, 2009. However, the record was not filed until May 3, 2010, so that the appellant was clearly also in default in this regard and it was not until the respondents filed their application to dismiss the appeal, on April 14, 2010, that the appellant sprung into action again, making the application under consideration, on May 4, 2010.

19 [15] To the date of this hearing, the respondents had not complied with the requirements under rule 2.7(2) (c).

20 SUBMISSIONS

21 [16] Mr Earle relied on the Gracie affidavit, as providing the explanation for the delayed filing of the appellant's...