Bacardi International Ltd

• Jurisdiction: Anguilla
• Judge: Rawlins, J.A
• Judgment Date: 23 November 2007
• Neutral Citation: AI 2007 CA 3
• Docket Number: Civil Appeal No. 3 of 2007
• Date: 23 November 2007
• Court: Court of Appeal (Anguilla)

Court of Appeal

Rawlins, J.A.

Civil Appeal No. 3 of 2007

Pendragon international limited et. al.

and

Bacardi international limited

APPEARANCES BY WAY OF WRITTEN SUBMISSIONS:

Mr. Geoffrey Robertson, Q.C, Mr. Mark Brantley and Ms. Jean Dyer for the Intended appellants/applicants

Mr. Mark Forte, Mr. Richard Evans and Ms. Tameka Davis for the respondent

Civil practice and procedure - Extension of time for filing appeal — Failure to comply was unintentional — Misapprehension of the law — Non-compliance remedied within a short time — Explanation for non-compliance was insufficient — Application dismissed.

Rawlins, J.A.:

The applicants, by Notice of Appeal dated 9th July, 2007, sought to appeal the judgment and order of the High Court continuing interim injunctions issued against the applicants until trial or further order. On 23rd July, 2007 the respondent alleged that the applicant's Notice of Appeal was issued out of time. Although the applicants took the view that the appeal was properly filed, they thought it prudent to make an application for extension of time. The applicants sought an order granting them an extension of time for appealing the judgment and deeming the Notice of Appeal of 9th July, 2007 to be properly filed on the

grounds that any failure to comply was unintentional. They stated that the failure to comply was based on a misapprehension of the law, and that the non-compliance was remedied within a short and reasonable time and that the respondent had not been prejudiced.

Held, dismissing the application and ordering the applicants to pay the respondent's costs in the application to be assessed, if not agreed:

In considering an application for an extension of time, the Court must have regard to the check-list in sub-rules 26.8(2) and 26.8(3) of CPR 2000. The requirements of rule 26.8(2) fall to be determined before the requirements of rule 26.8(3) are considered. The Court may only extend time if all the criteria set out in rule 26.8(2) are satisfied. The applicants did not provide a good explanation for their failure to file the appeal within the stipulated time. This was fatal to their application. Their failure to address the question whether they complied or not with all other relevant rules, practice directions, orders and directions provided an additional reason for not granting the application. Further, although the application stated that the respondent would not be prejudiced, the applicants’ failure to provide any details to support this assertion in the face of statements by the respondent detailing the prejudice which it (the respondent) was likely to suffer, did not assist the applicants’ cause to move the Court to extend time in the exercise of its discretion.

John Cecil Rose v Anne Maria Uralis Rose St. Lucia Civil Appeal No. 19 of 2003 mentioned Richard Frederick v Owen Joseph and Others St. Lucia Civil Appeal No. 32 of 2005 and Dominica Agricultural and Industrial Development Bank Dominica Civil Appeal No. 20 of 2005 followed.

Rawlins, J.A

1 On 21st August 2007, the appellants/applicants (“the applicants”) applied for an order to extend the time for filing an appeal from the judgment delivered by George-Creque, J on 24th May 2007. The application was made pursuant to rule 26.1(2)(k) of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (“CPR 2000”) and/or under the inherent jurisdiction of the Court. The applicants prayed that the Notice of Appeal which they filed on 9th July 2007 be deemed properly filed pursuant to rule 26.9 of the CPR 2000.

2 Rule 26.1[2)(k) confers discretion on the Court to extend the time for compliance with any rule, practice direction, order or direction of the Court even where the application is made after the time for compliance has passed. Rule 26.9 applies where the consequences of failure to comply with a rule is not specified by a rule, practice direction or Court order (see rule 26.9(1) of CPR 2000). It provides that an error of procedure or failure to comply with a rule does not invalidate any step taken in the proceedings, unless the Court so orders (see rule 26.9(2) of CPR 2000). The rule also confers discretion on a Court to rectify an error of procedure or a failure to comply with a rule, on or without an application (see rules 26.9(3) and (4) of CPR 2000).

3 Having read the application, as well as the relevant affidavits and the written submissions by solicitors for the parties, this Court issued an order dismissing the application on 9th October 2007. This judgment provides the reasons for that decision.

Background

4 In the judgment, which the applicants sought to appeal, the learned judge made an order continuing interim injunctions that were issued against the applicants on 30th January 2007 and extended on 12th February 2007 until trial or further order. The judge also held that the requirements of Part 7.5 of the CPR 2000 for permission to serve the claim form and other documents out of the jurisdiction on the 2nd and 3rd applicants had been complied with.

5 The application for extension of time was made without prejudice to the position of Pendragon that the Court of Anguilla is not the appropriate forum for the determination of Claim No. AXA/HCV 2007/0002. The applicants also made the application without prejudice to the position of the second and third named applicants that they are not amenable to the jurisdiction of the said Court and without prejudice to their position that the appeal was duly filed within the time prescribed by rule 62.5(c) of the CPR 2000. Rule 62.5(c) requires an appellant to file an appeal, which is not a procedural appeal or an appeal for which leave is required, within 42 days of the date when the judgment appealed against was served on the appellant. It is common ground that this is not a procedural appeal. Injunctive proceedings are expressly excluded from that definition by rule 62.1(2)(e)(ii) of the CPR 2000. It is also common ground that this is not an appeal for which leave to appeal is required. This is because section 29(4)(b) of the Eastern Caribbean Supreme Court (Anguilla) Act (revised Statutes of Anguilla, Chapter E15) specifically exempts appeals against injunctive proceedings from the leave requirement in respect of interlocutory judgments or orders.

6 It is noteworthy that while the applicants contended that they filed their appeal within the stipulated time, they indicated that their application for extension of time was only made out of prudence in the event that the Court agreed with the contention of the respondents that the appeal was issued out of time (The allegation was made at paragraph 23 of the third affidavit of Henry Walter Wiggin filed in Claim No. AXA/HCV/2007/002 on the 23rd of July 2007 and at paragraph 16(2) of the respondent's note on application for permission to Appeal, which was filed on 23rd July 2007). In that event, the applicants prayed that this Court would grant their application on the ground that their failure to comply with rule 62.5(c) of CPR 2000 was not intentional. They insist that it was inadvertent non-compliance, which was remedied within a short and reasonable time by filing the appeal. They stated that they failed to comply with the rule because their solicitors misapprehended when the time for appealing started to run. They further stated that after they studied the judgment they sought legal advice as to the time-frame for issuing the appeal. They concluded therefrom that the 42 clear days limited for appealing expired on the 9th July 2007.

7 I think that it is necessary to set out, fully, the contents of paragraph 3 to the...