Westmoreland Parish Council, Charles Beharie and Opal Beharie v Errol Bacchas
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Sinclair-Haynes JA,F Williams JA |
| Judgment Date | 05 May 2017 |
| Neutral Citation | JM 2017 CA 46 |
| Docket Number | APPLICATION NO 42/2016 |
| Court | Court of Appeal (Jamaica) |
| Date | 05 May 2017 |
[2017] JMCA App 12
IN THE COURT OF APPEAL
THE HON Mr Justice Brooks JA
THE HON Mrs Justice Sinclair-Haynes JA
THE HON Mr Justice F Williams JA
APPLICATION NO 42/2016
and
and
Canute Brown instructed by Brown Godfrey and Morgan for the applicants
Charles Piper QC and Ms Petal Brown instructed by Charles E Piper and Associates for the respondent
Civil Appeal - Application for an extension of time in which to apply for permission to appeal — Stay of execution — Amendments to statement of case — Whether the judge erred in allowing the amendments to the statement of case — Whether the claim was statute barred — Case Management Conference — Requirements for granting the application — Whether the length of delay in making the application was unduly long — Reasons for delay — Whether the proposed appeal has a real prospect of success — Whether costs should have been awarded — CPR 11.3, 19.3, 27.3, 64.6, 65.8 — Evanscourt Estate Company Ltd v. National Commercial Bank Jamaica Ltd SCCA No. 109/2007 — Salter Rex and Co v. Ghosh [1971] 2 All ER 865 — Busch v. Stevens [1962] 1 All ER 412 — Savings and Investment Bank Ltd v. Fincken [2001] EWCA Civ 1639.
In this application, the applicants are Westmoreland Parish Council, Mr Charles Beharie and Mrs Opal Beharie. They are, collectively, referred to hereafter as “the applicants”. The respondent is Mr Errol Bacchas. The applicants seek an extension of time in which to apply for permission to appeal from an order made by Batts J in the Supreme Court on 21 April 2015. They also seek permission to appeal from that order. The learned judge had refused to set aside certain amendments that Mr Bacchas had made to his statement of case. He also awarded costs to Mr Bacchas in respect of an application concerning those amendments.
This was not the applicants' first attempt to apply for permission to appeal. On 29 September 2015, they filed a notice of application for court orders, in which they sought permission in the Supreme Court to extend the time in which to appeal the orders of the learned judge. The application was heard by Batts J, and on 12 February 2016, he refused that application. They have therefore filed the present application.
The main issues to be determined concern whether the applicants have satisfied the requirements for their applications to be granted.
The learned judge described the route of the litigation as “tortuous”. He did not exaggerate. In his written judgment, he gave a detailed outline of the various steps taken by the parties thereto. In giving the background to these applications, only the major milestones need be set out.
The litigation commenced in 2008, when Mr Bacchas filed a claim in the Supreme Court in which he sought damages for, among other things, negligence by the Parish Council and two other defendants. Those two defendants are not parties to this application. On 23 March 2009, Mr Bacchas discontinued the claim against them, leaving the Parish Council as the only defendant at that time.
On 17 July 2014, Mr Bacchas amended his claim. He added Mr and Mrs Beharie as defendants. In his amended claim, he also sought damages from them. He alleged that the Beharies were guilty of certain torts, including nuisance. A case management conference was held on 27 October 2014, at which he and the applicants were represented. Dunbar-Green J (Ag) (as she then was), who conducted that case management conference, made a number of orders. Among those orders were the following:
“2. [Mr Bacchas] is permitted to file and serve a further Amended Claim Form and Particulars of Claim by November 21, 2014 at 3:00 p.m.;
3. The [Beharies] are to file and serve Acknowledgement of Service in relation to the Amended Claim Form and Particulars of Claim (which were acknowledged as having been received in Chambers);
4. The [applicants] are to file and serve Defence by 12 th December, 2014 at 3:00 p.m.;
5. [Mr Bacchas] to file Reply, if necessary by the 9 th January, 2015 at 3:00 p.m.
6. All applications and Affidavits in support (where necessary) are to be filed and served by March 13, 2015 at 3:00 p.m.;
7. Written Submissions together with Bundles in relation to all Applications are to be filed and served by March 31, 2015 at 4:00 p.m.;” (Emphasis as in original)
There is no appeal from any of those orders.
On 17 November 2014, pursuant to the permission that was granted on 27 October 2014, Mr Bacchas filed and served the further amended particulars of his claim. The applicants did not file a defence to the claim. They did, however, file an application on 13 March 2015. In that application, they asked the court to disallow the amendments that Mr Bacchas had made to his statement of case, and, in particular, those that added the Beharies as defendants to the claim. That application, along with an application for default judgment, filed by Mr Bacchas, came on for hearing before Batts J at a case management conference. On 21 April 2015, the learned judge made a number of case management orders, including the following:
“1. Relief from sanction granted to [Mr Beharie] and [Mrs Beharie] [for failing to file their defence within the time stipulated by Dunbar-Green J];
2. [Mr Bacchas'] Notice of Application for Court Orders for Judgment [in default of defence] is withdrawn;
3. Costs of the [applicants'] Application filed on March 13, 2015 and [Mr Bacchas'] Application of February 26, 2015 to [Mr Bacchas] to be taxed or agreed and paid;
4. Time extended for the filing of the Acknowledgement of service on behalf of [the Beharies] to April 24, 2015;
5. Time extended for the filing of an Amended Defence for [the Parish Council] and Defence for [the Beharies] to May 22, 2015;
6. Unless a Defence is filed on behalf of [the Beharies] in accordance with Para 5 above Judgment shall be entered against [them];
7. – 19.: [Various case management conference orders for disclosure, production of witness statements, production of expert report, the holding of a Pre-Trial Review and setting a trial date];
20. Half Costs of this case management conference to be costs in the claim.” (Emphasis as in original)
The applicants assert that they are aggrieved by some of those orders and wish to appeal from them.
They first applied to the Supreme Court for permission to appeal against the orders of Batts J. That application was filed on 29 September 2015. It came before Batts J on 3 February 2016. After considering the application, he made an order on 12 February 2016, refusing it. He did, however, grant permission, if it were required, to appeal against his latter order. That permission was, strictly speaking, unnecessary, as the applicants were entitled to renew the application before this court. Rule 1.8(2) of the Court of Appeal Rules (CAR) implicitly recognises the right of the applicant to renew his application to this court once it has been refused by the court below.
On 26 February 2016, the applicants filed the present application. They seek:
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a. an extension of time in which to apply for permission to appeal an order of Batts J made on 21 April 2015;
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b. permission to appeal from that order; and
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c. a stay of execution, pending the determination of the application, of the proceedings to recover the costs awarded to Mr Bacchas.
In supporting their application, the applicants assert, through an affidavit filed by their attorney-at-law, that:
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a. the delay in making the application was due to the attorney being unsure as to the appropriate method of dealing with the orders;
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b. the uncertainty was the reason for the length of the delay; and
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c. there is a real prospect of the proposed appeal being successful.
In respect of the merits of their proposed appeal, the applicants asserted that Batts J was in error in disallowing their application to set aside Mr Bacchas' amendment to his claim and also in error in awarding costs to Mr Bacchas in respect of applications that were dealt with at a case management conference. Their main objection to Mr Bacchas' amendments is that his claim against Mr and Mrs Beharie was already statute barred when he filed the amended claim.
Mr Brown, on behalf of the Beharies, contended that the alleged cause of action arose, according to Mr Bacchas' claim, in 2006. It is plain therefore, learned counsel argued, that an amendment in 2014, seeking to add Mr and Mrs Beharie as defendants to that claim, would be out of time. Mr Brown also asserted that it is not permissible to add to a claim, causes of action which arose subsequent to the filing of that claim.
Learned counsel asserted that the applicants were not afforded an opportunity to object to the amendments before they were made because there was no formal application for those amendments to have been made. The application to amend had been made orally at a case management conference and approval had been given without any indication as to what the proposed amendments were.
Mr Brown submitted that Batts J was in error when he ruled that he had no authority to set aside those amendments. The reason given by the learned judge, counsel stated, was that the amendments had been made pursuant to a grant of permission to amend, and that the permission to amend was given by a judge of equal jurisdiction. Learned counsel contended that Batts J was wrong to have refused their application to disallow the amendments.
In respect of the issue of costs, Mr Brown submitted that Batts J was wrong in making an order for costs other than that which allotted all the costs to be costs in the claim. He argued that issues dealing with amendments to statements of case are...
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