A, B, C & D Intended Appellants v E Intended Respondent [ECSC]

• Jurisdiction: Anguilla
• Judge: Pereira, JA,Justice of Appeal,Chief Justice,Janice M. Pereira,Hugh A. Rawlins,Ola Mae Edwards
• Judgment Date: 19 September 2011
• Judgment citation (vLex): [2011] ECSC J0919-1
• Court: Court of Appeal (Anguilla)
• Docket Number: HCVAP 2011/001
• Date: 19 September 2011

[2011] ECSC J0919-1

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Hugh A. Rawlins Chief Justice

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice M. Pereira Justice of Appeal

HCVAP 2011/001

A, B, C & D

Intended Appellants

and

E

Intended Respondent

Appearances:

Mr. Gerhard Wallbank for the Intended Appellants

Ms. Ayodeji D. Barnard for the Intended Respondent

Civil appeal — Leave to appeal — Norwich Pharmacal order — Whether Norwich Pharmacal orders are injunctions for the purpose of determining whether leave to appeal is required — Whether Norwich Pharmacal orders are final orders for the purpose of determining whether leave to appeal is required — Per incuriam principle

On 30 ^th 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 26 ^th January 2011, and the appellants filed a notice of appeal on 28 ^th 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 another1 and Morgan & Morgan Trust Corporation Limited v Fiona Trust & Holding Corporation et al

. 2 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 16 ^th 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 27 ^th 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 3 ^rd 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 18 ^th 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 27 ^th July 2010 — unreported) cited.

Pereira, JA

1 On 30 ^th December 2010, the trial judge refused to grant ' Norwich Pharmacal' and ' Bankers Trust' relief 3 to the intended appellants ("the appellants"). The trial judge gave written reasons for her decision on 26 ^th January 2011. The appellants filed a Notice of Appeal on 28 ^th January 2011, without first seeking the court's permission to so do. On 7 ^th 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 another4 delivered on 27 ^th July 2010, which in turn followed an earlier decision of the Court, namely, Morgan & Morgan Trust Corporation Limited v Fiona Trust & Holding Corporation et al5 given on 3 ^rd 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. 6 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 JA (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, 7 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 that the order in the present case is not exempted from the leave requirement provided under section 30(4) (ii) of the Supreme Court Act." (emphasis mine)

5 Counsel had also argued in TSJ Engineering that the Court in Morgan & Morgan, ought not to have followed the decision of the Gibraltar Court of Appeal in Secilpar SL v Fiduciary Trust Limited8 which concluded that the order was an interlocutory order because it was ancillary to the main proceedings in another jurisdiction. He said that in any event it was of persuasive authority only, and that it was also unsound. He argued also that the obligation to disclose was in itself a cause of action. For this proposition he placed reliance on certain dicta of the Lord Justices in the Norwich Pharmacal case. The Court however was not so persuaded and accordingly held that the Norwich Pharmacal order, at least on the peculiar facts of TSJ Engineering, was not in the nature of a final...