Layou Improvement Committee et al v Development and Planning Corporation

IN THE HIGH COURT OF JUSTICE COMMONWEALTH OF DOMINICA DOMHCV2010/0127 [Civil] BETWEEN: LAYOU IMPROVEMENT COMMITTEE Applicants WACK ROLLERS ADVENTURES, VACATIONSAND EXPEDITIONS LTD WAITUKUBULI ECOLOGICAL FOUNDATION and DEVELOPMENT & PLANNING CORPORATION Respondent Before: The Hon. Justice Brian Cottle Appearances: Mr. Geoffrey Letang for Applicants Ms. Sanura Lambert for Respondent [2011: June 24th, 28th] [2011: July 6th] JUDGMENT

[1]COTTLE J: At a hearing before the court on 21 st December 2010 the court made an order requiring the applicants to amend their application to comply with the requirements of Civil Procedure Rules (CPR) 2000 part 56. The Affidavits in Support were ordered to be amended to comply with parts 56.7 (ii) (d). The Fixed Date Claim Form filed on behalf of the Applicants was also ordered to be amended to comply with the CPR 2000.

[2]The Applicants were given 14 days within which to comply with the court order. The sanction expressed for failure to comply with the order was that the application for judicial review and supporting affidavits of the applicants along with the Fixed Date Claim Form would all be struck out. The court adopted this attitude at the hearing because the applicants had failed to take advantage of an earlier opportunity to amend their pleadings to comply with the rules. Again, the Applicants failed to comply with the order of the court.

[3]On 2nd March 2011 there was filed on the behalf of the Applicants a notice of change of legal practitioner. One day later the new legal practitioner, Mr. Letang, filed the present application. In the application he sought an extension of time to comply with the order of 21 st December 2010. The application itsetf did not seek relief from sanctions. The application was supported by affidavits from the three applicants. In those affidavits the Applicants also asked for Relief from Sanctions for the failure to comply with the court order of 21 st December 2010.

[4]The grounds of the application were stated as follows: i. the failure of the Applicants'lClaimants' former Attorney, Bernard Wiltshire, fault andlor negligence and lor willful refusal to comply with the said order; ii. by email dated 11J'h December 2010, addressed to the former Attorney the 3nf ApplicanUClaimant expressed their concerns of how their former Attorney was conducting or handling the matter; iii. by letter dated 4'h February 2011 addressed to the said former Attorney, all three Applicants/Claimants expressed their disappointment in the said former Attorney's failure to follow up with the said Court order dated 21st December 2010. The said ApplicanUClaimants also highlighted that the former Attorney's failure to file the necessary Court documents in time, this could jeopardize the case;

[5]The Affidavits in Support exhibit correspondence to the former attorney of the applicants. These exhibits have some bearing on the outcome of the present application. CPR 26.B requires applicants for Relief from Sanctions to apply promptly. Before the court is vested with a discretion to grant relief, the Applicants must satisfy the court that the failure to comply with the court order was not intentional. They must also show that there is a good explanation for the failure. Unless these matters satisfy the court there is no discretion in the court to grant the relief sought.

[6]The Applicants say they have acted promptly. This application was filed one day after they were able to secure the services of new counsel. The exhibit annexed to their affidavits show that as early as 1BIt! December 2010 they were aware that the previous legal practitioner did not wish to proceed with the matter. They were aware of the risk of the claim being "thrown out due to procedural technicalities". Certainly by 71t! January 2011 they were aware that they had missed the deadline to amend their pleadings. They then knew that they needed to petition the court for an extension of time. The letter of 41t! February 2011 says that the applicants were "in the process of engaging Mr. Letang, yet this application was only filed one month later.

[7]The explanation offered by the Applicants for failing to comply with the court order of 21 st December 2010 is simply that they were let down by their legal practitioner. They did all they could, including, personally approaching the Registrar of the High Court for assistance. [B] Turning to the instant application for extension of time, it is clear that the Applicants should also have applied for relief from sanctions. CPR 2000 part 2B.7 makes this clear. Had this been the only failure, this court might have been minded to consider that the affidavit in support does make the request for relief from sanctions and treat the present application for extension of time as also including an application for relief from sanctions. But the Applicants face other hurdles.

[9]It is difficult to describe the delay of the Applicants after they knew that the deadline had been missed, as prompt. Additionally, the explanation for the failure to comply has been repeatedly struck down by the Court of Appeal. Byron JA in Civil Appeal 19 of 2003 John Cecil Rose v Anne Marie Uralis Rose from St. Lucia said: "We have expressed the view on many occasions that the lack of diligence of an attorney is not a good reason for delay. These Applicants may have been treated very badly by the attorney they had selected but they must abide by the consequences of their choice of cou nsel.

[10]This court is not satisfied with the explanation offered for the failure to comply with the court order of 21 st December 2010. Neither has the application for extension of time been made promptly. This court has no discretion to grant the orders sought by the applicants. The application is dismissed. As is usual in matters of this nature I make no order as to costs.

IN THE HIGH COURT OF JUSTICE COMMONWEALTH OF DOMINICA DOMHCV2010/0127 [Civil] BETWEEN: LAYOU IMPROVEMENT COMMITTEE Applicants WACK ROLLERS ADVENTURES, VACATIONSAND EXPEDITIONS LTD WAITUKUBULI ECOLOGICAL FOUNDATION and DEVELOPMENT & PLANNING CORPORATION Respondent Before: The Hon. Justice Brian Cottle Appearances: Mr. Geoffrey Letang for Applicants Ms. Sanura Lambert for Respondent [2011: June 24th, , 28th] ] [2011: July 6th] JUDGMENT

[1]COTTLE J: At a hearing before the court on 21 st December 2010 the court made an order requiring the applicants to amend their application to comply with the