Wilbert Christopher v Helene Coley Nicholson

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: PANTON P , MORRISON JA , HIBBERT JA (Ag.)
• Judgment Date: 18 November 2011
• Neutral Citation: JM 2011 CA 111
• Docket Number: APPLICATION NO 199/2009
• Date: 18 November 2011

[2011] JMCA App 23

JAMAICA

IN THE COURT OF APPEAL

BEFORE:

THE HON MR JUSTICE PANTON P

THE HON MR JUSTICE MORRISON JA

THE HON MR JUSTICE HIBBERT JA (Ag)

APPLICATION NO 199/2009

BETWEEN

WILBERT CHRISTOPHER

APPLICANT

AND

HELENE COLEY NICHOLSON

RESPONDENT

Applicant in person

Ravil Golding instructed by Lyn-Cook, Golding & Co for the respondent

CIVIL PROCEDURE - Legal profession - Application to discharge previous order dismissing claim - Whether application premature - Costs

PANTON P

1 I have read in draft the reasons for judgment of my learned brother Morrison JA. I agree with his reasoning and conclusion and have nothing further to add.

MORRISON JA

2 On 25 July 2011, the court dismissed this application for an order discharging an order made by Cooke JA on 10 November 2009. These are my reasons for concurring in that decision.

3 In early December 2008, the applicant consulted the respondent, who is an attorney-at-law in private practice, for professional advice. The applicant paid the respondent an initial consultation fee of $4,500.00, but a dispute then arose between them as regards the terms of the respondent's representation of the applicant thereafter. The applicant demanded the return of the $4,500.00, but the respondent refused (on grounds which are not now relevant) to make any refund.

4 As a result, the applicant commenced an action against the respondent to recover this amount in the Corporate Area Resident Magistrate's Court at Sutton Street. This matter was set for trial on 5 August 2009. However, by the time the applicant arrived at court at 10:30 that morning, the matter had already been dealt with in his absence by the learned Resident Magistrate, who dismissed the applicant's claim for want of prosecution. The court had also, it appears, adjourned for the day. On 4 September 2009, the applicant filed an application to this court for enlargement of time within which to file an appeal from this decision. When this application was referred to Harris JA as the single judge in chambers, she directed that the application be placed before a judge in chambers for an interpartes hearing.

5 By this means, the application therefore came before Cooke JA in chambers on 10 November 2009, at which time the applicant was present, but the respondent was neither present nor represented. Cooke JA dismissed the application, apparently on the ground that the appeal was premature, in that the applicant ought to have made an application to the Resident's Magistrate Court to set aside the order made in his absence on 5 August 2009 dismissing the action against the respondent for want of prosecution.

6 Before us, the applicant's grounds for seeking to discharge Cooke JA's order were that Cooke JA (a) had on 10 November 2009 ruled in the respondent's favour in her absence; (b) had refused to allow him to make a submission to the court; and (c) failed to comply...