Tomaz Slivnik v Martin Dinning et Al

• Jurisdiction: Anguilla
• Court: Court of Appeal (Anguilla)
• Judge: ‘Henry, J.A.’
• Judgment Date: 23 July 2025
• Neutral Citation: AI 2025 CA 2
• Year: 2025
• Docket Number: AXAHCVAP2023/0005

Tomaz Slivnik

and

Martin Dinning Et Al

Price-Findlay, C.J. (Ag.); Henry, J.A.; Armour, J.A.

AXAHCVAP2023/0005

Court of Appeal

On 22nd February 2022, the appellant and 17 other natural and corporate persons filed a claim in the Anguilla High Court seeking among other reliefs, damages from the respondents for breach of statutory duty, fraudulent preference and/or expropriation of their deposits of US$14,850,981.22 held at National Bank of Anguilla Limited (in Receivership) (‘NBA’), the 9th respondent, and at Caribbean Commercial Bank Limited (in Receivership) (‘CCB’) the 10th respondent. The claimants had not served the claim on the respondents by 16th August 2022. On that date, without notice to the respondents, the claimants applied for an order extending the time for service of the claim form. The application was granted by court order dated 18th August 2022 (the ‘Extension Order’) extending the time for service of the claim form until 21st January 2023, a period of 6 months.

The Extension Order was served on the 3rd respondent, Mr. Shawn Williams, on 22nd November 2022; on the 5th respondent, the Eastern Caribbean Central Bank (‘ECCB’), the 7th respondent the Attorney General of Anguilla, the 9th respondent, the NBA, the 10th respondent, the CCB and the 11th respondent, Mr. Gary Moving on 24th November 2022. The 2nd respondent, Mr. Hudson Carr and the 6th respondent, Anguilla Financial Services Commission (‘FSC’) were served on 14th December 2022.

On 8th December 2022, Mr. Williams, ECCB, NBA, CCB, and Mr. Moving filed an application to set aside the Extension Order and for an order striking out the claim against them. Mr. Carr filed a similar application on 30th December 2022, and on 11th January 2023, the FSC filed its own application for identical orders. The respondents grounded their application to set aside in Rule 8.13(4) of the Civil Procedure Rules, 2000 (‘CPR’). They contended that the appellant's application to extend did not comply with the requirements of that rule.

On 21st November 2022, the claimants filed an application to amend the claim form. On 16th December 2022, they applied for leave to serve the claim out of the jurisdiction on the 1st respondent, Martin Dinning and on 21st December 2022 for an order to substitute personal service on the 4th respondent, Robert Miller, by service on the ECCB. Finally, on 16th February 2023, the appellant applied to extend the validity of the claim form in relation to the first, 4th and 8th respondents. The applications were all heard by the learned master on 27th and 28th February 2023.

By written decision delivered on 25th April 2023 (the ‘First Decision’) the learned master set aside the Extension Order (the ‘Setting Aside Order’) holding that no good reasons were advanced as to why the claim had not been served on the respondents within the jurisdiction during its validity and no special reason had been given to justify extending the period of validity. Additionally, he found that no evidence was proffered of what, if any, steps had been taken to trace or serve some of the respondents, including the 7th respondent, during the claim's validity; and from the evidence, a deliberate litigation decision was made not to serve them by reason of a tangential case.

The learned master therefore struck out the claim against the 1st, 2nd, 4th, 6th, 7th, 9th, 10th, 11th and 12th respondents (the ‘Strike Out Order’); dismissed the application to amend the claim (the ‘Amendment Order’) and denied the claimants leave to serve the claim form out of the jurisdiction on the 1st respondent (the ‘Service Out Order’) or on the 4th respondent by substituted service (the ‘Substituted Service order’). The parties were then ordered to file written submissions on costs within 14 days.

The learned master inadvertently omitted in the First Decision to consider the appellant's application to extend the validity of the claim. Accordingly, by further written decision delivered on 3rd May 2023 (the ‘Second Decision’), he determined that application and vacated the orders refusing the application to amend the claim form and striking out the claim against the 1st respondent. The learned master extended the validity of the claim form against the 1st and 8th respondents for 45 days and granted the appellant leave to personally serve the claim form on them out of the jurisdiction at their respective addresses. He made various consequential orders.

Dissatisfied with the learned master's decisions, the appellant filed his appeal on 6th June 2023 against the Setting Aside Order, the Strike Out Order, the Amendment Order and the Substituted Service Order. The Court identified the following three issues for consideration on the appeal: (1) Whether the learned master erred in the exercise of his discretion by refusing leave to the appellant to effect service on the 4th respondent by substituted service; (2) whether the learned master erred in the exercise of his discretion by setting aside the Extension Order as against the 2nd, 3rd, 5th, 6th, 7th, 9th, 10th, 11th and 12th respondents; and (3) whether the learned master erred in the exercise of his discretion by refusing the application to amend the claim.

Prior to the appeal, the appellant filed an application on 12th January 2024 for leave to adduce fresh evidence. The fresh evidence sought to be adduced are a medical report of Mariel Lesley Crabtree (‘patient 1’) prepared by Dr. Jaiyesh Kumar dated 22nd April 2022; a case history form of patient 1 dated 23rd April 2022; a medical report of patient 1 prepared by Rona E. Hodge, dated 25th June 2022; a CT brain scan report on Mr. Walter John Bayer II (‘patient 2’) prepared by Dr. Nilesh Ingale dated 18th May 2022; a medical report of patient 2 dated 23rd May 2022; the 2023 annual return of C11 evidencing that patient 1 was a director of C11 between 21st February 2022 and 21st August 2022; and the 2023 annual return of C15 evidencing that patient 1 was a director of C15 between 21st February 2022 and 21st August 2022. The grounds of the application were that the fresh evidence could not have been obtained with reasonable diligence for use in the court below; it is such as to be presumably believed and would have an important influence on the result of the case, and it is in the best interest of the overriding objective that the fresh evidence be admitted.

Held: dismissing the application to adduce fresh evidence, allowing the appeal in part, awarding costs to the respondents and making the orders at paragraph [114] of this judgment, that:

• 1. To succeed on an application to adduce fresh evidence, the applicant must satisfy the court firstly that it was not possible to obtain the evidence with reasonable diligence for use at the trial. Secondly, it must be established that the evidence would likely have an important influence on the outcome of the case, but it need not be determinative. Thirdly, while the evidence does not have to be incontrovertible, it must appear to be credible. Where a fresh evidence application arises with respect to an interlocutory appeal, the first criterion is to be applied with less rigour. In applying the first limb, it is clear that the medical reports of patient 1 and patient 2, the case history form of patient 1, and the CT brain scan report of patient 2 had been available before the claimants filed their evidence in response to the set-aside application. Those materials could therefore have been obtained with reasonable diligence by the claimants and presented to the court as part of the evidence. The 2023 annual returns would not have been available until they were filed in June and September 2023. They were therefore not within the applicant's possession or control at the relevant time of submitting evidence. As to whether the medical reports and forms would likely have had an important impact on the outcome of the case, the Court is of the view that they would not. The alleged unavailability of patient 1's spouse and/or patient 2 to contribute to group discussions among the claimants did not prevent the claimants from giving instructions to legal practitioners to lodge the application for an extension of the claim's validity. Further, there is no evidence that the strokes suffered by the patients contributed to the lack of service of the claim during the period of validity. In these circumstances, the applicant has failed to satisfy the first and third limbs of the test to adduce fresh evidence.

  Ladd v. Marshall [1954] 1 W.L.R. 1489 applied; Geminis Investors Limited v. Goods Technology Starting International Limited BVIHCMAP2022/0043 (delivered 23rd August 2023, unreported) followed.

• 2. The Court retains implicit and inherent jurisdiction to make orders to achieve its objectives of correcting wrong decisions and ensuring public confidence in the administration of justice. Notwithstanding the 7th respondent's initial avowed neutrality to the set-aside application, the court settled on the position that by virtue of the common interest among the respondents, the determination of the set-aside application cannot be fragmented. Furthermore, although the issue of the validity of the claim form with respect to the 7th respondent did not arise as a separate issue for the learned master's consideration during the hearing, he was correct to address his mind to it to ensure that consistency of treatment is maintained and that no absurd result arises from the court's determination of the set-aside application. It was necessary and proper for the learned master to consider it since the 7th respondent made representations to which the appellant responded. The impugned orders setting aside the Extension Order and striking out the claim against the 7th respondent were appropriate.

  Taylor v. Lawrence [2002] All E.R. 353 followed.

• 3. The learned master's finding that as there was no valid claim form to be served and...