Sheila Vanessa Harrigan [Pursuant to an Order of Court Pronounced by Mr. Justice Neville Smith on the 17th day of February 1995] in the interest of the Estate of Connell Lorenzo Harrigan, [Deceased] Appellant v Dolykin Rothene Harrigan Respondent [ECSC]
| Jurisdiction | Anguilla |
| Judge | BYRON, J.A.,Justice of Appeal,SIR VINCENT FLOISSAC,Chief Justice,SATROHAN SINGH |
| Judgment Date | 10 June 1996 |
| Judgment citation (vLex) | [1996] ECSC J0610-1 |
| Date | 10 June 1996 |
| Court | Court of Appeal (Anguilla) |
| Docket Number | CIVIL APPEAL NO.2 OF 1995 |
IN THE COURT OF APPEAL
The Rt. Hon. Sir Vincent Floissac Chief Justice
The Hon. Mr. C. M. Dennis Byron Justice of Appeal
The Hon. Mr. Satrohan Singh Justice of Appeal
CIVIL APPEAL NO.2 OF 1995
Mr. L. Moore Q.C. with Mr. T. Astaphan for the Appellant
Mr. Christopher Laing for the Respondent
On 9th July, 1993 the respondent had obtained a decree nisi of Divorce against Connell Lorenzo Harrigan, now deceased. It is conceded that no decree absolute of dissolution of this marriage was granted prior to his death.
On 15 th July, 1994, Matthew J. heard an application for ancillary relief brought by the respondent under the Matrimonial Proceedings and Property Ordinance 1990. The main relief sought in these proceedings was a property settlement under section 26 of the Act. The property involved was valued at over US$4,000,000.000.
At the commencement of the hearing, counsel for the appellant applied for an adjournment on the ground that the respondent's severe illness in a hospital in Puerto Rico prevented him from attending court or even giving instructions in the matter as a result of which the court would not have either his oral or affidavit evidence, and counsel could not cross-examine the respondent or rebut her testimony. The application was refused and the hearing took place without the participation of the respondent, who died on the 19th July, 1994. On 29th July, 1994 the judge gave a written ruling in the matter in which he made orders relating to the custody of children and to the settlement of property.
The appeal is to set aside these orders. Three main matters were argued. Firstly, that there was a denial of justice in refusing the application for an adjournment; secondly, that the formal order was irregularly filed and thirdly, no orders should have been made under section 26 of the Matrimonial Proceedings and Property Ordinance 1970 after the death of Connell Lorenzo Harrigan, as there was no decree absolute of divorce.
Learned counsel for the appellant submitted that the learned trial judge erred in refusing to grant the application.
A judge has a discretion to adjourn or refuse to adjourn a trial. Although the court has an undoubted interest in reducing the delay caused by unnecessary adjournments, this discretion is judicial and should take into account the rules of natural justice, particularly the audi alteram partem rule. The authorities, however, indicate that Courts of Appeal tend to be slow to interfere with the exercise of a Judge's discretion on adjournments.
The facts of this case, however, raise the question, what is the duty of a judge when faced with an application for an adjournment on the ground that a party, whose evidence is directly and seriously material is prevent by illness from attending court, or, where the nature of the proceedings permit, tendering evidence by affidavit?
I adopt the answer given by Scott L.J. in Dick v Piller [1943] 1 A.E.R. 626 at p.629:
"If he is satisfied [I] of the medical fact and [ii] that the evidence is relevant and may be important, it is his duty to give an adjournment — it may be on terms — but he ought to give it unless, on the other hand, lie is satisfied that an injustice would thereby be done to the other side which cannot be remedied by costs. These questions may depend on matters of degree and matters of fact may be involved…."
The death of the appellant just four days after the application tragically established the medical fact of his serious illness. The learned trial judge had reasoned that the imminent death of the appellant would have had an adverse effect on the respondent's chances of gaining relief in these proceedings. In his concern to avoid the probability of injustice to the respondent by delay lie overlooked the fact that the decree absolute of divorce had not yet been granted. This brought into play the statutory prohibition against the efficacy of any order he might have made for settlement of the property, as I will explain. In my view, no injustice would have been done to the respondent by an adjournment, at least until the decree of divorce had been made absolute.
Learned Counsel for the appellant submitted that the formal order should be struck out for its irregularity. The accepted facts were that the respondent back-dated the order formalising the ruling of the learned trial Judge to 15th July, 1994 without having obtained any order from the court to do so. The Rules of the Supreme Court 1970 make provision for the adjustment of the date on which an order of the court should take effect as follows: Order 42 rule 3:
"[1] A judgment or order of the Court or of the Registrar takes effect from the day of its date.
[2] Such a judgment or order shall be dated as of the day on which it is pronounced, given or made, unless the Court or the Registrar, as the case may be, orders it to be dated as of some other earlier or later day, in which case it shall be dated as of that other day."
Under this provision the court may order that, if a party to proceedings before it died...
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