A, B, C and D v E

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: Pereira, J.A.
• Judgment Date: 19 September 2011
• Neutral Citation: AI 2011 CA 1
• Docket Number: HCVAP No. 1 of 2011
• Date: 19 September 2011

Court of Appeal

Rawlins, C.J.; Edwards, J.A. and Pereira, J.A.

HCVAP No. 1 of 2011

A, B, C and D

and

E

Appearances:

Mr. Gerhard Wallbank for the intended appellants

Ms. Ayodeji D. Barnard for the intended respondent

Civil practice and procedure - Norwich Pharmacal Order — Whether leave to appeal is requires — Where Norwich Pharmacal Order is a final order for purpose of determining whether leave to appeal is required.

On 30th December 2010, the intended appellants (“the appellants”) were refused Norwich Pharmacal and Bankers Trust relief by the trial judge in the court below. Written reasons were given for this decision on 26th January 2011, and the appellants filed a notice of appeal on 28th January 2011, without first obtaining leave to do so.

The Court directed that the parties address the question of whether leave to appeal was required in light of two earlier decisions of the Court of Appeal, namely TSJ Engineering Consulting Limited v. Al-Rushaid Petroleum Investment Company and another Civil Appeal No. 13 of 2010 — Territory of the Virgin Islands (delivered 27th July 2010 — unreported) and Morgan & Morgan Trust Corporation Limited v. Fiona Trust & Holding Corporation et al. Civil Appeal No. 24 of 2005 — Territory of the Virgin Islands (delivered 3rd April 2006 — unreported). In both of these cases, the court had been called upon to consider whether leave was required to appeal decisions involving Norwich Pharmacal orders, firstly on the basis that such orders were in the nature of injunctions — which would have brought them within the exception of the requirement for leave provided by the Supreme Court Act — and secondly, on the basis that such orders were in substance, in the nature of final orders.

Held: deeming the Notice of Appeal against the refusal to grant Norwich Pharmacal relief validly filed and making no order as to costs, that:–

• 1. Notwithstanding that a Norwich Pharmacal (disclosure) order is a specific type of order directed to a party who may not be said to be a wrongdoer and in respect of which no other cause of action may exist, such an order, by virtue of its import and intent, is an injunction. The learned judge's order which refused the appellant Norwich Pharmacal relief was therefore, an order refusing to grant an injunction, and, based on the Supreme Court Act, would fall in the excepted class of orders for which leave to appeal would not be required.

  Bullen & Leake & Jacob's Precedents of Pleadings 16th Ed. Vol. 2 para. 49.03 cited; Norwich Pharmacal Co. and Others v. Customs and Excise Commissioners [1974] A.C. 133 (H.L.(E.)) cited; Equatorial Guinea v. Royal Bank of Scotland International [2006] UKPC 7 cited; British Steel Corporation v. Granada Television Ltd. [1981] A.C. 1096 cited; Novo Nordisk A/S v. Banco Santander (Guernsey) Ltd. (1999–2000) 2 I.T.E.L.R. 557 cited; TSJ Engineering Consulting Limited v. Al-Rushaid Petroleum Investment Company and another Civil Appeal No. 13 of 2010 — Territory of the Virgin Islands (delivered 27th July 2010 — unreported) and Morgan & Morgan Trust Corporation Limited v. Fiona Trust & Holding Corporation et al Civil Appeal No. 24 of 2005 — Territory of the Virgin Islands (delivered 3rd April 2006 — unreported) both considered and treated as having been decided per incuriam.

  • 2. Whether a Norwich Pharmacal order granted on an interlocutory application may be considered a final order as opposed to an interlocutory one does not admit of a straightforward answer. In the case at bar, the trial judge's refusal to grant the appellants Norwich Pharmacal relief brought finality to the proceedings; the appellants could go no further with their claim, which sought the same relief. Thus, on the peculiar facts of this case the order made would have been a final order. However, in general, whether such orders are considered final or interlocutory may turn on various factors and depend on the circumstances of each case.

Othniel Sylvester v. Satrohan Singh Civil Appeal No. 10 of 1992 — St. Vincent and the Grenadines (delivered 18th September 1995) cited; TSJ Engineering Consulting Limited v. Al Rushaid Petroleum Investment Company and another Civil Appeal No. 13 of 2010 — Territory of the Virgin Islands (delivered 27th July 2010 — unreported) cited.

Pereira, J.A.

1 On 30th December 2010, the trial judge refused to grant ‘Norwich Pharmacal’ and ‘Bankers Trust’ relief (The Norwich Pharmacal relief, in more modern times called a disclosure order, derives its name from the watershed decision, Norwich Pharmacal Co. and Others v. Customs and Excise Commissioners [1974] A.C. 133 of the House of Lords in England; Bankers Trust type relief which is a relief akin to Norwich Pharmacal relief, derives its descriptive name from the decision Bankers Trust Co. v. Shapira and Others [1980] 1 W.L.R. 1274, a decision of the English Court of Appeal.) to the intended appellants (“the appellants”). The trial judge gave written reasons for her decision on 26th January 2011. The appellants filed a Notice of Appeal on 28th January 2011, without first seeking the court's permission to so do. On 7th February 2011, the Court directed that the parties address the question whether leave to appeal was first required. This was in light of the Court's prior decision in TSJ Engineering Consulting Limited v. Al-Rushaid Petroleum Investment Company and another Civil Appeal No. 13 of 2010 — Territory of the Virgin Islands (unreported) delivered on 27th July 2010, which in turn followed an earlier decision of the Court, namely, Morgan & Morgan Trust Corporation Limited v. Fiona Trust & Holding Corporation et al Civil Appeal No. 24 of 2005 — Territory of the Virgin Islands (unreported) given on 3rd April 2006. In these earlier decisions the Court was called upon to consider whether leave to appeal was required in respect of Norwich Pharmacal orders:–

• (i) firstly, on the basis that such orders were in the nature of injunctions which would have brought them within the exception of the requirement for leave provided by the Supreme Court Act. In the Virgin Islands, the relevant provision is section 30 of the West Indies Associated States Supreme Court (Virgin Islands) Act (Cap. 80, Revised Laws of the Virgin Islands 1991). The relevant portion of section 30(4) states as follows:–

  “No appeal shall lie without the leave of the judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given by a judge except in the following cases:–

  • (i)

  • (ii) where an injunction or the appointment of a receiver is granted or refused;

  • (iii)

  • (iv)” and

• (ii) secondly, on the basis that those orders are in substance in the nature of final orders.

THE EARLIER DECISIONS

2 In Morgan & Morgan the Court held in essence that a Norwich Pharmacal (disclosure) order was (a) not a final order (for which no leave would be required) and (b) was not an injunction (which would have brought it within the exception of the requirement for leave in respect of an interlocutory order) and accordingly leave to appeal was required.

3 At paragraph 6 of the judgment, Barrow, J.A. (as he then was) had this to say:–

“The discovery respondent's other submission, that a disclosure order is an injunction, is a completely novel one. Counsel was unfazed by his inability to find any judicial decision or academic writing that supported his view and easily offered the suggestion that basic propositions were frequently assumed without discussion. It was a fleet response. A Norwich Pharmacal disclosure order is a highly specific type of order. It compels the production of information to enable a party to put forward his case. An order for disclosure does not become an injunction because it commands a person to do something. If that were so all orders that commanded persons to do things would be injunctions. An order for specific performance compels a person to do the thing he had promised to do, but that does not make it an injunction. Similarly an order for an account compels a party to do something but it is not an injunction. The reason why these other orders are not called injunctions is because they are not injunctions. In the Secilpar [sic] case, in addition to the disclosure order, the court had also granted an injunction restraining the respondents from disclosing the disclosure order. In the instant case the very order purportedly appealed contained, in addition to the disclosure order, a freezing order or injunction. It is because a disclosure order is not an injunction that, in these cases, the court found it necessary to grant an injunction as a separate order.” (emphasis mine)

4 In TSJ Engineering counsel urged the Court not to follow its prior decision in Morgan & Morgan on the basis that the decision therein was given per incuriam. He sought to show on the authorities on which he relied, (These authorities were the Norwich Pharmacal case (supra note 1); Maclaine Watson & Co. Ltd. v. International Tin Council (No. 2) [1989] Ch. 286; Gidrxslme Shipping Co. Ltd. v. Tantomar-Transportes Maritimos Lda. [1995] 1 W.L.R. 299; and Spry's Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages) that the Norwich Pharmacal order was firstly, in the nature of a mandatory injunction; and secondly, was in the nature of a final order and that the Court's decision in Morgan & Morgan was given per incuriam. At paragraph 20 the learned Chief Justice in his judgment (with which the other members of the panel concurred), said in part:–

“… I know of no authority which supports the view that a norwich pharmacal order is an order in the nature of an injunction. in my view such orders fall within the category of non-injunctive orders which create legal obligations or command the performance of particular acts, such as orders of mandamus or for specific performance. In the premises, I find...