Wilfred Emmanuel Forbes and Another v Miller's Liquor Store (Dist.) Ltd

• Jurisdiction: Jamaica
• Judge: Harris P (Ag),Mcintosh JA,Brooks JA
• Judgment Date: 29 June 2012
• Neutral Citation: JM 2012 CA 56
• Docket Number: APPLICATION NO 233/2011
• Court: Court of Appeal (Jamaica)
• Date: 29 June 2012

[2012] JMCA App 13

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris P (Ag)

The Hon Mrs Justice Mcintosh JA

The Hon Mr Justice Brooks JA

APPLICATION NO 233/2011

Between

Wilfred Emanuel Forbes

1st Applicant

and

Cowell Anthony Forbes

2nd Applicant

and

Miller's Liquor Store (Dist.) Limited

Respondent

Wendell Wilkins instructed by Robertson Smith Ledgister for the estate of the 1 ^st applicant

Christopher Dunkley instructed by Phillipson Partners for the 2 ^nd applicant

Marvalyn Taylor-Wright instructed by Marvalyn Taylor-Wright and Co for the respondent

CIVIL PROCEDURE - Injunction - Application for order to prevent sale of realty pending appeal - Whether failure of attorney or appellant to sign notice and grounds of appeal amounted to nullity of application - Court of Appeal Rules, Rule 2.2(4)

Harris P (Ag)

1 I have read, in draft, the reasons for judgment of my brother Brooks JA. I agree with his reasoning and have nothing to add.

Mcintosh JA

2 I too have read the draft reasons for judgment of Brooks JA and agree.

Brooks JA

3 On 26 March 2012, an application was listed before us to review and discharge the order of a single judge of this court. When the application came on for hearing, the respondent, Miller's Liquor Store (Dist) Ltd, made a preliminary objection to the application. After hearing the parties, we refused the application, struck out the appeal in respect of which the application was made, granted costs to the respondent, such costs to be taxed if not agreed, and promised to put its reasons in writing.

4 The appeal was against a judgment of Smith J which was handed down on 17 December 2010. Smith J gave judgment for the respondent with costs to be taxed, if not agreed. The notice of appeal was lodged on behalf of the then claimants, Wilfred Emmanuel Forbes and Cowell Anthony Forbes, and an application was filed in this court for an injunction preventing the sale of the subject realty, pending appeal. The application was heard by Morrison JA, sitting as a single judge of this court, and was refused.

5 The present application was then filed, on behalf of Mr Cowell Forbes only, for Morrison JA's decision to be reviewed and discharged. It was when the application came before the court that Mrs Taylor-Wright, on behalf of the respondent, raised the preliminary objection.

The Preliminary Objection

6 Mrs Taylor-Wright's preliminary objection was pointed. The appeal, she submitted, was a nullity and any application, thereunder, must, therefore, be a nullity. She brought to the attention of the court that the named first appellant, Mr Wilfred Emanuel Forbes was dead. He had, in fact died before the appeal herein was filed. There is no issue as to his death or as to the time thereof. Learned counsel submitted that, when the notice and grounds of appeal were filed on behalf of Mr Wilfred Forbes, the attorneys-at-law who filed them had no authority so to do. The notice and grounds of appeal and the present application are, therefore, on learned counsel's submission, irregular and are not capable of being regularised. The application and the appeal, she argued, should, therefore, be both struck out.

7 She submitted that, in law, one of two co-claimants has no standing to pursue an appeal against a decision, which affects them jointly. Accordingly, on her submission, Mr Cowell Forbes cannot properly seek to now, pursue the present application on his own.

8 Learned counsel also argued that there was no compliance with the procedural requirements for filing an appeal, as there was no person, in being, to comply with those requirements, on behalf of Mr Wilfred Forbes' estate. In particular, learned counsel pointed to the need for the notice and grounds of appeal to be signed by the appellant or the appellant's attorney-at-law (rule 2.2(4) of the Court of Appeal Rules (CAR)). She argued that, Mr Wilfred Forbes, having died, there was no attorney-at-law who could properly sign on his behalf.

9 In respect of her submissions, learned counsel relied on, among others, the cases of International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corp of India [1996] 1 All ER 1017, Tetlow v Orela Ltd [1920] 2 Ch 24 and In re Mathews [1905] 2 Ch 460.

The response

10 In response to the objection, Mr Dunkley, on behalf of Mr Cowell Forbes, submitted that the death of one of two or more appellants cannot prejudice the rights of the survivors. He submitted that there was an obligation to deal with cases justly and that justice required that Mr Cowell Forbes, being alive and fully capable of prosecuting the appeal, should be accepted as possessing the requisite capacity so to do.

11 Mr Dunkley sought to distinguish the various cases cited by Mrs Taylor-Wright. He argued that, unlike those cases, the instant case is one where a judgment has already been delivered. He argued that clarifying the issue of the late Mr Wilfred Forbes' status is, practically speaking, ‘a matter of housekeeping’. He submitted that this court could consider the appeal by Mr Cowell Forbes alone. He pointed out that the two men were to have taken title as tenants-in-common and so their respective interests are not inseparable.

12 Mr Dunkley submitted that the cases cited do not support the submission that the appeal is a nullity. He relied on In re Wright [1895] 2 Ch 747.

13 Having summarised the submissions, which were made by counsel on both sides, it is next necessary to set out an outline of the rest of the factual background to the application.

The factual background

14 Messrs Forbes, who were brothers, entered into an agreement to purchase real property from the respondent. They were allowed into possession and executed a mortgage of the title for the property, although they were not actually registered on that title as the proprietors of the property. At some stage, they were deemed to have been in default and the respondent entered into an agreement to sell the property, purportedly under powers of sale contained in the mortgage deed. The Forbeses filed their claim in the court below to prevent the sale, to secure an accounting between the parties and to secure damages against the respondent for breach of contract. It was in respect of that claim that Smith J delivered the judgment mentioned above.

15 The document containing the notice and grounds of appeal was filed on 27 January 2011. It was signed by Phillipson Partners as ‘Attorneys-at-Law for the Appellants’. The body of the document started with the words ‘TAKE NOTICE that the Appellants HEREBY APPEAL…’. There was no indication that Mr Cowell Forbes was pursuing the appeal on his own behalf alone.

The analysis

16 Mrs Taylor-Wright has accurately stated that ‘the issue as to the authority of the attorneys-at-law to file the notice and indeed amended notice and grounds [of appeal] on behalf of the appellants goes to the heart of whether the appeal is legitimate or not’. It will also be necessary, however, to determine whether the respective interests of the Forbeses were so bound together that one would be prohibited from proceeding without the other. These issues will be considered separately.

(a) The authority of the attorneys-at-law

17 The Rules of the Supreme Court in England, which were in force prior to the advent of that country's Civil Procedure Rules, stipulated that where a solicitor is instructed in High Court proceedings, he is considered the solicitor for that party ‘until the final conclusion of the cause or matter, whether in the High Court or Court of Appeal’ (Order 67 rule 1 — The Supreme Court Practice 1997). The learned editors of Halsbury's Laws of England at paragraph 134 of volume 44(1) of the 4 ^th edition of that work, relying on O. 67 r 1, seem to be of the opinion that a retainer to sue or defend, which is given in the High Court, continued through to the conclusion of the matter, even if it went on appeal. That rule does not seem to have been replicated in that country's later Civil Procedure Rules. The explanation for that may be the advent of the Access for Justice Act 1999, in England, which is said to have brought about ‘fundamental changes in which litigation may be funded’ in that country.

18 The learned editors of Halsbury's continued, by also stating at paragraph 134:

‘Thus, after judgment the [attorney-at-law's] authority continues for the purpose of issuing execution or protecting his client from execution, and of receiving notice of appeal , or of motion to vary an order, or of motion relating to the satisfaction of the judgment, but it is doubtful whether after judgment the [attorney-at-law] has authority to compromise, and he has no authority to start substantially new and distinct proceedings , such as interpleader proceedings, even where the question in those proceedings arises in consequence of the judgment.’ (Emphasis supplied)

It should be noted that the learned editors did not speak to acting for the client increspect of an appeal for which notice had been received.

19 That last quotation would seem to draw a distinction between receiving a notice of appeal and filing a notice of appeal, the latter of which, it would seem, would be considered ‘new and distinct proceedings’. Undoubtedly, an attorney-at-law would require specific instructions from the client to file an appeal, before proceeding so to do. The following comment by Wills J in James v Ricknell [1887] 20 QBD 164, would be equally applicable to the issue of an appeal as it would to new proceedings at first instance. He said at page 166 of the report:

‘As a reasonable man, [the client] may well decide to give way and to refuse to stake the cost and anxiety of a second litigation against the chance of success.’

20 Our Civil Procedure Rules (CPR) support the proposition that there is a...