John Paul Deforia The Island Company Ltd Appellants/Respondents v Gigi Osco-Gingemann Vadim Fridman (Executors of the Estate of Martin Crowley, deceased) Pendragon International Ltd Respondents/Applicants [ECSC]

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: d'AUVERGNE, J.A. [Ag.]
• Judgment Date: 23 December 2004
• Judgment citation (vLex): [2004] ECSC J1223-1
• Docket Number: CIVIL APPEAL NO.6 OF 2004
• Date: 23 December 2004

[2004] ECSC J1223-1

IN THE COURT OF APPEAL

CIVIL APPEAL NO.6 OF 2004

Between:

John Paul Deforia

and

The Island Company Limited

Appellants/Respondents

and

Gigi Osco-Gingemann

Vadim Fridman (Executors of the Estate of Martin Crowley, deceased)

and

Pendragon International Limited

Respondents/Applicants

Appearances:

Mr. Kenneth McClean with Jenny Lindsay for the Appellants

Mr. James Corbett with Keithley Lake, Mark Bradley and Cora Richardson-Hodge for the Respondent

In attendance were Mr. John Reynolds on behalf of the Appellant and

Mr. Mark Forte on behalf of the Respondents

d'AUVERGNE, J.A. [Ag.]

1 On the 20 ^th September, 2004 the Appellants (then the Respondents in the Court below) filed a notice of Appeal against the decision of Madam Justice Janice George-Creque contained in an Order dated 13 ^th September, 2004.

2 On the 27 ^th September the said Appellants filed a notice of Application under Civil Procedure Rules 2000 (herein after referred to as C P R 2000) Part 62.10; 62.5; 62.20; seeking the following:

Leave be granted to amend the Notice of Appeal dated and filed 20 ^th September, 2004 in the form of draft attached.

The Court extend the time for filing of Written submissions in support of the Notice of Appeal to 27 ^th September, 2004 so as to be in compliance with C P R Part 42.10.

The Court exercise its discretion to allow the Appellants to make oral submissions and for the Appeal to be heard by the Court of Appeal.

The Court grant a stay by the proceedings until after the hearing of this Appeal.

3 On the 1 ^st of October, 2004 the Respondents filed a notice of Application seeking the following:

The purported Notice of Appeal by the Appellants on the 20 ^th day of September 2004 be struck out.

The Costs of and occasioned by this Application be paid by the Appellants.

Such further or other Order as the Court deems fit.

4 On the 18 ^th October, 2004 the Appellants, filed another Notice of Application requesting that the Notice of Appeal filed on the 20 ^th September 2004 shall stand as the Notice of Appeal and that the Appellants be granted leave to amend the Notice of Appeal in the form of the draft amended Notice of Appeal.

Background

5 On the 13 ^th September, 2004 George-Creque J, delivered judgments on two (2) applications one of which was judgment on an application of the Respondents/Claimants to strike out substantially all of an affidavit of the 1 ^st named Appellant made on behalf of the 2 ^nd named Appellant dated 16 ^th August, 2004. The learned Judge granted the application and ordered paragraphs 18–30 of the Affidavit to be struck out on the basis that those paragraphs contained expressions of opinion or legal argument.

6 The substantive Case was then set down for the 16 ^th and 17 ^th September, 2004 and the Appellants closed their case on the 16 ^th September, 2004; and during the closing submissions attempted to refer to the struck out paragraphs in the Order of the 13 ^th September, 2004. They were not allowed to do so and filed first Notice of Appeal on the 20 ^th September, 2004 a mere three (3) days later.

7 It is significant to note that the Case has concluded and judgment is reserved.

Submissions

8 The Appellants contention is that the Appeal from that decision is in the nature of the...