Globe-X Canadiana Ltd et Al v Johnson et Al

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: Gordon, J.A.
• Judgment Date: 20 September 2004
• Neutral Citation: AI 2004 CA 1
• Docket Number: Civil Appeal No. 4 of 2003
• Date: 20 September 2004

Court of Appeal

Gordon, J.A.

Civil Appeal No. 4 of 2003

Globe-X Canadiana Limited et al

and

Johnson et al

Appearances:

Mr. Kenneth Porter with Miss Merlene Barratt for 1st and 2nd appellants

Mrs. M. E. Birnie Stephenson Brooks for 3rd appellant

Mr. James Hilsdon for the respondents

Civil practice and procedure - Record of appeal — Skeleton submissions — Application for extension of time for filing — Application to strike out grounds of appeal — Application for security for costs — All applications successful.

Gordon, J.A.

1 This is an application by Globe-X Canadiana Limited and Globe-X Management Limited (hereafter the Companies”) for an extension of time under Part 6216 of the Civil Procedure Rules (CPR) to file the record of appeal and the skeleton argument in support of the appeal filed by the applicants. This application, dated July 6, 2004, was no doubt stimulated by another application filed by the respondents seeking to strike out the appeal on the grounds of the appellants failure to comply with Part 62.12 (3) CPR.

2 I will deal with both applications together for the sake of brevity. The Companies advance as a reason for their non-compliance two distinct causes; firstly, that they had been in serious and potentially fruitful negotiations with the creditor company which had been the petitioner in the proceedings for the winding up of the Companies and that the negotiations had progressed to the point of a draft settlement agreement when the control in the creditor company was sold to a third party. This is neither denied nor admitted by the respondents. The second reason advanced by Companies for their delay is that in September 2003 the respondents made an application to this court for security for costs; the court ordered that written submissions be submitted by 9th January 2004 and that they expected a ruling on the application shortly thereafter and were awaiting such ruling.

3 Dealing with the second reason first, I am completely unable to tie the lack of a ruling on the issue of security for costs with the failure to comply with Part 62.12 of CPR into any logical matrix. I discount this absolutely.

4 Regarding the first reason, however, I am sympathetic to the view that where genuine and productive negotiations are proceeding with a likelihood of success, then failure to comply with the time lines set down in CPR might be excusable on the grounds of saving costs and court time. Having said the above, however, I would not like counsel to regard this as a charter for excusing delay. Each circumstance will be regarded on its particular merits and courts will extend time only where they are convinced that delay was caused by a reasonable belief of imminent settlement In any event, the better and safer practice is to apply for an extension of time before the expiry of the time limit being sought to be extended.

5 In the circumstances I would allow an extension of time up to 30th September 2004 within which to file the record of appeal and skeleton submissions.

6 By order of Saunders, C.J. [Ag.] the parties were required to file written submissions pertaining to an application for security for costs of the appeal and the application would then be determined on those written submissions. Both parties duly filed their written submissions and the following is the decision on that application.

7 The application for security for costs was filed on behalf of the respondents Clifford A Johnson and...