McDonna v Richardson
| Jurisdiction | Anguilla |
| Judge | Barrow, J.A |
| Judgment Date | 29 June 2007 |
| Neutral Citation | AI 2007 CA 1 |
| Docket Number | Civ. Appeal No. 3 of 2005 |
| Court | Court of Appeal (Anguilla) |
| Date | 29 June 2007 |
Court of Appeal
Barrow, J.A.
Civ. Appeal No. 3 of 2005
Hodge's Law Office for the appellant
Joyce Kentish and Associates for the respondent
Civil practice and procedure - Striking out of appeal — Notice of appeal filed seven days out of time — No leave to appeal obtained — Whether appeal was final or interlocutory — Application test — Whether the issues between the parties were finally determined — Order given was an interlocutory order — Leave to appeal was required — Appeal struck out.
This application by the respondent to strike out this appeal for having been brought out of time is another litigation event concerning the ownership of land which has been disputed up to the Court of Appeal and, thereafter, was disputed in a new round of litigation all the way up to the Privy Council, when a new claimant took up the cudgel. The High Court claim from which yet another claimant brought this appeal was, therefore, the sixth litigation event regarding ownership of the land and this appeal is the seventh.
In the High Court Edwards J. acceded to an application by the respondent to strike out the claim as an abuse of process, indicating that the issue of the ownership of the land had been conclusively determined in earlier proceedings, based on a deed of 1890 as the root of title. She held that the latest attempt before her, by another member of the same family that had previously claimed ownership of the land as against the registered owner, a member of a different branch of the family, this time based on a newly discovered deed of 1826, was an abuse of process. She therefore stuck out the claim on the respondent's application at an interlocutory stage.
The judge gave her decision on 29 December 2004. The claimant in the Court below appealed on 17th February 2005. The appellant filed skeleton arguments and applied for case management directions in October 2006. Then on 29th November 2006 the respondent took the point, in an application filed in this Court, that the appeal was filed 7 days after the 42 days for appealing had expired. The respondent asked that the appeal be struck out. The appellant resisted that application and submitted that in any event this was an appropriate case for the Court to either waive his non-compliance with the time deadline or extend time, which he asked in his affidavit that the Court should do.
In the course of considering the written submissions of the parties on the respondent's application to strike out the appeal because it was filed out of time the question arose whether this was an appeal from an interlocutory order and I requested submissions from the appellant on the issue. If the appellant appealed from an interlocutory order he needed leave to appeal. Section 29 (4) of the Eastern Caribbean Supreme Court (Anguilla) Act (Chapter E 15, Revised Statutes of Anguilla) provides:
“No appeal shall lie without leave of the judge or of the Court of Appeal from any interlocutory order or interlocutory judgment made or given except in the following cases –
(a) Where the liberty of the subject or the custody of infants is concerned;
(b) Where an injunction or the appointment of a receiver is granted or refused;
(c) In the case of a decree nisi in a matrimonial cause or a judgement or order in an admiralty action determining liablility;
(d) in such other cases to be prescribed by the rules of Court, as may … be of the nature of final decisions.”
However, counsel for the appellant contended the appeal fell within the exception in subsection (4) (d). Counsel submitted that the Order from which the appellant appealed was a final and not an interlocutory order within the meaning of the section. Counsel submitted it is clear from the terms of the exception and from the provisions of CPR 2000 that, for appeal purposes, an order is not an interlocutory order if it determined substantive issues in the case.
Not a procedural and so not an interlocutory appeal
The provision of the rules to which counsel referred was rule 62.1 which states that “procedural appeal” means an appeal from a decision which does not directly decide the substantive issues in a claim. Counsel relied on the observations in Maria Hughes v The Attorney General of Antigua and Barbuda (Civil Appeal No. 33 of 2003) and Nevis Island Administration v La Copropriete Du Navire J31 (Civil Appeal No. 7 of 2005) to assert that it is settled that the term “procedural appeal” is equivalent for the purposes of the prohibition in s 29(4) of the Act to an appeal from an interlocutory order.
Counsel's core submission, flowing from the definition that an appeal from an order that decided a substantive issue in a claim was not a procedural appeal, was that if an appeal was not a procedural appeal it was not an interlocutory appeal (for convenience I will refer to an appeal from an interlocutory order or judgment as an interlocutory appeal), because the latter is the equivalent of the former. Therefore, according to this reasoning, the present appeal which was not a procedural appeal, and hence was not an interlocutory appeal, did not need leave to be brought.
It is true that in both of the cases to which counsel referred the single judges of this Court who decided them treated the term procedural appeal as equivalent to an appeal from an interlocutory order. But in both cases the judges decided, as expressed by Rawlins JA in the Nevis Island case summarising the decision of Gordon JA in the Maria Hughes case, that:
“The term “procedural appeal” … is equivalent to an appeal from an interlocutory order, and similarly requires leave as a prerequisite to the filing of a Notice of Appeal.” ( Nevis Island Administration v La Copropriete Du Navire J31 (Civil Appeal No. 7 of 2005) at p.11) (Emphasis added).
As that observation shows, these decisions both rested on the premise that a procedural appeal was equivalent to an interlocutory appeal in needing leave to be brought. Counsel's way of dealing with that statement by Rawlins JA was to argue that it was not necessary for the decision in the Nevis Island case and, for that reason, was not binding. Counsel, therefore, persisted in his submission to the effect that an interlocutory appeal is equivalent to a procedural appeal and since a procedural appeal is definitionally one from a decision that does not decide substantive issues, an order that decides substantive issues, for the purposes of the section that requires leave, is not an interlocutory order.
These submissions call for a closer examination of the rules in Part 62 dealing with procedural appeals to identify the true nature of procedural appeals and the purpose for creating this category of appeals. The first reference is in the definition section, r 62.1 (2), and it reads:
“procedural appeal” means an appeal from a decision of a judge, master or registrar which does not directly decide the substantive issues in a claim but excludes –
(a) any such decision made during the course of the trial or final hearing of the proceedings;
(b) an order for committal or sequestration of assets under Part 53;
(c) an order granting any relief made on an application for judicial review (including an application for leave to make the application) under the relevant Constitution;
(d) an order granting or refusing an application for the appointment of a receiver; and
(e) the following orders under Part 17 –
(i) a freezing order;
(ii) an interim declaration or injunction;
(iii) an order to deliver up goods;
(iv) any order made before proceedings are commenced or against a non–party; and
(v) a search order.”
The next reference is in r 62.5, which deals with “Time for filing notice of appeal”. This rule states that in the case of a procedural appeal the time for filing the notice of appeal is within 7 days of the date the decision was made, or if leave is required within 14 days of the grant of leave or, in the case of any other appeal, within 42 days of the date when the order or judgment appealed against was served on the appellant. This rule creates three time limits for the three categories of appeal of which this particular rule speaks: procedural appeals, appeals for which leave is required, and other appeals.
Rule 62.9, which is headed “Action by Court on receipt of notice of appeal’, contains the next reference. This rule states that upon the notice of appeal being filed the Court office must forthwith, if it is a procedural appeal appoint a date, time and place for the appeal and give notice to all parties. In contrast, if the appeal is from a High Court judgment the Court office must arrange for the High Court to prepare a transcript of the notes of evidence and of the judgment and notify all parties when these are prepared. A broadly similar provision for the preparation of the appeal papers is made for appeals from the Magistrate's Court. It will be seen that a clear difference is established for procedural appeals, which are sent for hearing immediately upon the notice of appeal being filed, and other appeals, which must go through the extended procedure of preparation of transcripts, record of appeal and skeleton arguments.
A comparison of the last two rules shows that appeals are not consistently categorised even within Part 62 but are variably categorised according to the purpose for which the categorisation is made. Thus, for the purpose of stating time limits for filing notices of appeal, rule 62.5 refers to procedural, interlocutory and other appeals. In contrast, for the purpose of stating what action the Court office must take on...
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