Leeward Isles Resorts Limnited Appellant v Charles Hickox Respondent [ECSC]

• Jurisdiction: Anguilla
• Judge: d'AUVERGNE, J.A.[Ag.]
• Judgment Date: 22 December 2004
• Judgment citation (vLex): [2004] ECSC J1222-1
• Docket Number: CIVIL APPEAL NO.9 OF 2004
• Date: 22 December 2004
• Court: Court of Appeal (Anguilla)

[2004] ECSC J1222-1

IN THE COURT OF APPEAL ANGUILLA CIRCUIT (Civil)

CIVIL APPEAL NO.9 OF 2004

Between:

Leeward Isles Resorts Limnited

Appellant

and

Charles Hickox

Respondent

Appearances:

(1) Mr. Courtney Abel with Ms Eustella Fontaine, Miss Navine Bahadinsingh

(2) Mr. William Rodger with Miss Pam Webster for Respondent

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

1 On 3 ^rd November 2004 the Appellant filed a notice of Appeal against the Order contained in a written Ruling of Master Cheryl Mathurin dated 25 ^th day of October, 2004. The background to that ruling is that on the 26 ^th March 2004 the Respondent applied for an order that the Appellant's further reamended Defence and Counterclaim be struck out and summary judgment be entered for the Respondent. The Appellant opposed the application. On 25 ^th October 2004 Master Mathurin gave copies of her decision to the Attorneys for the parties. The following day the parties again appeared before the Master and she handed down her amended written judgment.

2 On the 11 ^th November 2004 the Respondent filed a notice of Appeal to strike out the Notice of Appeal filed on behalf of the Appellant on the 3 ^rd of November, 2004.

3 The reasons given are that firstly that Appeal is a procedural appeal pursuant to Part 62.5(a) of CPR 2000. That a procedural appeal is equivalent to an appeal from an interlocutory order.

4 Secondly, that leave to file such an appeal is a necessary prerequisite which must be done within seven days from the date of the Order and that failure to obtain leave to appeal makes the Notice of Appeal a nullity.

5 On the 26 ^th November 2004 the Appellant applied for leave to appeal for time to be extended and from relief from sanctions.

6 The Appellant's case is that leave to appeal is not required under the laws of Anguilla or Rules of Court, CPR 2000 to appeal the ruling of the Master since leave is not required from a Master's decision. Moreover certain matters contained in the Appellant's Further Re-Amended Defence and Counterclaim are Res Judicata and that ruling is a final decision not requiring leave to appeal.

7 At the hearing in Chambers, Counsel for the Appellant submitted that Civil Appeal No.33 of 2003 Antigua and Barbuda Circuit, Maria Hughes and the AttorneyGeneral of Antigua and Barbuda was not to be followed and urged that the matter be determined by the full Court and not a single judge. By paragraph 6 of Maria Hughes' case Gordon JA (Ag.) states:

"Though CPR has introduced a different turn, to wit, 'procedural appeal' it is in my view equivalent to an appeal from an interlocutory order. Hence if the present Notice of Appeal is a procedural appeal, leave to file the appeal is a necessary prerequisite to a filing of a Notice of Appeal."

8 Counsel told the Court that after the reading of the Master's ruling Counsel for the Appellant made a valid oral application for leave to appeal and that Counsel for the Respondent, Miss Palmovan Webster, was present yet did not object when the Appellant was directed by the Master that the Appellant was entitled to file a Notice of Appeal and submissions forthwith without first seeking the leave of the Court. Based on that direction, the Appellant filed a notice of Appeal within seven (7) days.

9 The Appellant's contend that the Respondent's Notice of Application to strike out the Appellant's Notice of Appeal is defective in that the Respondent did not file an Affidavit in support with the Notice of Application contrary to Part 11.9 of CPR 2000 which provides that "evidence in support of an application must be contained in an affidavit unless a Court Order, practice direction or rule otherwise provides."

10 It was further submitted that the Ruling of the Master on the question of Res Judicata was a final order since it would have determined the Res Judicata question between the parties.

11 It was submitted that this argument, Res Judicata point is in conformity with the so called "Application test" enunciated in the cases of the White v Brunton and Othniel1Sylvester v Satrohan Singh2 which renders the strike out paragraphs of the Appellant's pleading a final order.

12 In White v Brunton Sir John Donaldson M.R. delivering the judgment with which the other members of the Court of Appeal concurred, contrasted the two competing approaches taken by previous Courts of Appeal in determining the question whether a decision was final or interlocutory.

13 The "order approach" depended upon the nature and effect of the order made whereas the "application approach" held that a final order was one made on such an application or proceeding that for whichever side the decision is given, it will, if it stands, finally determine the matter of the litigation. This "application approach" depended upon the nature of the application or proceeding giving rise to the order and not upon the order itself.

14 At page 607 Sir John...