Court of Appeal Sitting – 17th to 21st June 2024

THE EASTERN CARIBBEAN SUPREME COURT COURT OF APPEAL SITTING SAINT CHRISTOPHER AND NEVIS VIDEOCONFERENCE Monday 17th June – Friday 21st June 2024 JUDGMENTS Case Name: [1] Notre Dame Investments Ltd [2] Angela Diala List v [1] Rowntry Trading Ltd [2] Paul List [3] BCM International Ltd [NEVHCVAP2022/0009] (Saint Christopher and Nevis) Date: Wednesday, 19th June 2024 Coram for delivery: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal Appearances: Appellants: Mr. Delano Bart KC with him Ms. Midge Morton Respondents: Ms. Jean Dyer Issues: Interlocutory Appeal - Interim injunction – Whether judge erred in refusing to grant appellants’ application for interim relief – Exercise of judicial discretion - Whether the judge’s ruling fell outside the generous ambit within which reasonable disagreement is possible – Whether judge conflated considerations for final and interim injunctions - Interim declarations - Whether judge incorrectly conflated the test for an interim injunction and an interim declaration which are two distinct interim reliefs - Whether judge arrived at a wrong conclusion as a result of conflating the two tests Result / Order: IT IS HEREBY ORDERED THAT: 1. The appeal is dismissed. 2. The appellants to pay the respondents’ costs to the appeal to be assessed by a judge of the High Court, if not agreed within 21 days of the date of the judgment. Reason: Held: dismissing the appeal and ordering that the appellants pay the respondents costs to the appeal to be assessed by a judge of the High Court if not agreed within 21 days of the date of this judgment, that: 1. An interim injunction is a remedy which is granted to regulate the position of the parties until their rights are determined at trial. This interim remedy has for the past 40 years been governed by the American Cyanamid test which has also been adopted by this Court in several cases. However, while the American Cyanamid test provides structure and sequence in determining whether to grant or refuse an interim injunction, it still remains guidance. The overarching principle that must be considered is whether it is just or convenient to grant the interim injunction. In this case, while it can be said that there is a serious case to be tried, it cannot be said that it was just or convenient to grant the interim injunction prayed for, especially when one considers the totality of the evidence. When one looks at the evidence, it is apparent that the evidence provided is lacking and would not persuade a court that an interim injunction should be granted. In the amended application there is no real identification of the acts or behaviours upon which an interim injunction can be granted. In the instances where acts or behaviours have been described, there is no cogent evidence provided to establish a nexus between the alleged acts and the risks faced if the interim injunction is refused. While the judge did not adequately set out the tests to be considered, this error by the learned judge does not make or result in the decision to refuse the amended application for an interim injunction being plainly or blatantly wrong so as to move this Court to interfere with the learned judge’s decision. CM Row Law of Injunctions 11th Edn, approved; American Cyanamid Co v Ethicon Limited [1975] AC 396 applied; National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] UKPC 16 applied; N.W.L Ltd v Woods [1979] 3 All ER applied; Cambridge Nutrition Ltd v British Broadcasting Corp [1990] 3 All ER 523 applied; Villa Cornucopia Limited v Esther Developments Limited BVIHCVAP2023/0001 (delivered 8th December 2023, unreported) followed; Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 followed; Nilon Limited and another v Royal Westminister Investments SA and others [2015] UKPC 2 followed. 2. Interim declarations are known as a fairly new power of the court. A court when hearing an application for an interim declaration should take into account the justice to the claimant; justice to the defendant; whether the declaration would serve a useful purpose; and whether there are any other special reasons why the court should or should not grant the declaration. However, as the rights of a party are by their nature permanent, courts have been cautious to declare rights on a temporary basis and appellate courts have generally disapproved of the making of declarations at an interim stage. Riverside Mental Health Trust NHS v Fox [1984] 1 FLR 614 considered; Bank St Petersburg v Arkhangelsky and another [2014] EWHC 574 (Ch) applied. 3. The interim declarations prayed for by the appellants also run into a similar challenge to the application for an interim injunction - there is no explanation as to the effect of the declarations on the parties. This goes to the heart of determining whether granting the interim declaration would serve a useful purpose. Both Mrs. List’s and Mr. Adongo’s positions in BCM are live issues at trial. If granted, the interim declaration that Mrs. List is a director of BCM would have the effect of pre- emptively determining one of the key issues in the trial, being, whether Mrs. List’s resignation was properly effected. Likewise, to declare Mr. Adongo secretary of BCM on an interim basis is to determine the circumstances surrounding his alleged displacement from BCM. At that stage, it was not appropriate for the learned judge to make such declarations. Therefore, while it is evident throughout the judge’s ruling that the learned judge at times failed to adequately make the distinction between interim injunctions and interim declarations, sometimes using these terms interchangeably and thus conflating their separate tests, like the error committed by the learned judge in relation to the tests for interim injunctions, this did not result in a decision that was plainly or blatantly wrong. Accordingly, the appeal is dismissed. Case Name: Dion Weekes v [1] Providence Estate Limited [2] Owen Rooney [MNIHCVAP2023/0007] (Montserrat) Heard together with: David Brandt v Owen Rooney [MNIHCVAP2023/0008] (Montserrat) Date: Thursday, 20th June 2024 Coram for delivery: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Sylvester Carrott for Dion Weekes Mr. Sylvester Carrott holding papers for Dr. David Dorsett for David Brandt Respondents: Ms. Nadia Chiesa Issues: Civil appeal – Costs – Costs upon a discontinuance – Discretion to depart from the general rule on costs – Whether the learned judge erred in allowing the respondents to discontinue claims against the appellants with no order as to costs – Overriding objective – Whether the learned judge erred in failing to afford the parties the opportunity to be heard on the issue of costs following the discontinuance – Abuse of process – Locus standi – Whether the learned judge erred in finding that that the preliminary issue (which questioned the locus standi of Mr. Rooney to instruct PEL to bring the claims) amounted to an abuse of the court’s process – Ratification – Whether the learned judge failed to appreciate that integral to the argument concerning ratification was the issue of Mr. Rooney’s entitlement to direct PEL and the continuing non- compliance of PEL under the Companies Act Result / Order: IT IS HEREBY ORDERED THAT: 1. Appeal MNIHCVAP2023/0008 and Ground 6 of the Appeal in MNIHCVAP2023/0007 is allowed. 2. The costs order of the learned judge is set aside. 3. The issue of costs on the discontinuance is remitted for determination by a judge of the High Court other than the learned trial judge in both MNIHCVAP2023/0008 and MNIHCVAP2023/0007. 4. The remaining grounds of appeal in MNIHCVAP2023/0007 are dismissed. 5. The order pertaining to the locus standi of PEL is affirmed. 6. Mr. Brandt will have his costs of the appeal MNIHCVAP2023/0008, such costs to be assessed by a judge or master of the High Court if not agreed within 21 days. 7. There is no order as to costs in appeal MNIHCVAP2023/0007. Reason: 1. A court clearly has discretion whether or not to order costs. There is however a general rule or presumption which applies where a claim is discontinued. Rule 37.6(1) of the CPR states that a claimant who discontinues a claim is liable for the costs incurred by the defendant against whom the claim is discontinued, on or before the date on which notice of discontinuance was served. Costs are to be quantified in accordance with the scale of prescribed costs in Part 65 of the CPR, Appendices B and C. The rationale for this presumption or general rule is that where a claimant commences proceedings, he/she takes on the risk of the litigation. If successful, a claimant can expect to recover their costs, but if unsuccessful or the claim is abandoned at whatever stage of the proceedings, it is normally unjust to allow the defendant to bear the costs of proceedings that were forced upon him and which the claimant is unwilling to carry through to judgment. Rule 37.6(1) of the Civil Procedure Rules 2000 applied; Brookes v HSBC Bank plc; Jemitus v Bank of Scotland plc [2011] EWCA Civ 354 applied; Maini v Maini [2009] EWHC 3036 (Ch) considered. 2. The power to depart from the general rule is to be exercised applying the factors which would normally inform the general discretion in regard to costs. However, a judge who is minded to depart from the general rule should afford a defendant an opportunity to make representations. While the burden of displacing the general rule rests with the party who asserts that it should be displaced, whether the general rule should be displaced is determined by reference to the facts of the particular case and the factors which are prescribed in Part 64 of the CPR. Rule 1.2 obliges a court to seek to give effect to the overriding objective when it purports to exercise any discretion given to it by the rules. That overriding objective mandates that a court deal with cases justly. In this case, the undisputed version of events reveals that without any forewarning to the parties, the judge proceeded to deal with the Discontinuance Application at the conclusion of the delivery of his judgment on the preliminary issue. This would have come as a surprise to the parties and counsel, including counsel for Mr. Brandt who was not present, who were not given an opportunity to make submissions contrary to the principles of fairness and justice integrated into the overriding objective. The appellants should have had an opportunity to put before the judge the full spectrum of factors which should have been applied in departing from the general rule as it is clear that he either did not consider or gave little weight to the same, despite citing legal authorities which would have made it clear that he was obliged to do so. The fact that Mr. Rooney maintained his claims notwithstanding that they were obviously ill-founded as he had no legal interest in the subject matter of the claim is clearly a matter which ought to have been weighed. Accordingly, the learned judge’s discretion was not exercised judicially such that his order on costs on the discontinuance must be set aside and the question of be costs remitted to the High Court. Rule 1.2 of the Civil Procedure Rules 2000 applied; Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235 applied; Gajadhar v Public Service Commission TT 2014 CA 3 applied. 3. There can be no doubt that courts retain a general jurisdiction to control abuses arising out of proceedings that come before them. Often however, as it is in this appeal, the real question is the extent of that jurisdiction. The GoM parties did not join in the strike out application concerning the locus standi of PEL. At paragraph 63(b) of his judgment, the judge merely cited that fact, reinforcing that the objections regarding PEL’s standing ought to have been raised by the GoM parties much earlier than occurred. In the premises, it is arguable that the judge’s comment could ground a substantive finding of res judicata as it relates to the GoM. However, even if it could not, what is clear is that the GoM has not appealed that finding and it is difficult to discern the basis upon which Mr. Weekes would choose in his appeal to challenge observations made in respect of the GoM parties. This is especially so when in more critical findings, the judge disposed of the objections to PEL’s locus standi preventing any further argument on the issue and declaring that PEL has locus standi. Mr. Weekes did not (save for the question of ratification) address these findings and this part of his appeal must fail. Hunter v Chief Constable of the West Midlands Police [1982] AC 529 applied; Levi Maximea v The Chief of Police et al DOMHCVAP2020/0009 (delivered 7th December 2023, unreported) followed. 4. On the question of whether the learned judge failed to appreciate that integral to the argument concerning ratification was the issue of Mr. Rooney’s entitlement to direct PEL and the continuing non-compliance of PEL under the Companies Act, Mr. Weekes failed to demonstrate any real or substantial prejudice. The cause of action against him remains the same and it has not been made out that ratification would cause him any prejudice or embarrassment. Accordingly, this aspect of Mr. Weekes’ appeal must also fail. Bird v Brown (1850) 4 Exch 786 applied; Smith v Henniker-Major & Co [2002] EWCA Civ 762 distinguished. APPLICATIONS AND APPEALS Case Name: Regulator of International Banking v [1] Petrodel Investment Advisers (Nevis) Ltd [2] Michael J Prest [3] Bank of Nevis International Limited [NEVHCVAP2023/0008] (Saint Christopher and Nevis) Date: Monday, 17th June 2024 Ms. Jean Dyer Coram: The Hon. Mr. Mario Michel, Chief Justice [Ag.] The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant/Respond ent: Ms. Kalisia Marks for the third respondent Respondent/Applic ant: Issues: Application to strike out appeal - Delay - Whether the appellant’s delay in filing the record of appeal and skeleton arguments has prejudiced the third respondent - Abuse of process - Whether the appellant’s failure to request and/or secure the transcript amounts to an abuse of process - Whether the appeal should be struck out for want of prosecution Type of Order: Oral Decision Result / Order: IT IS HEREBY ORDERED THAT: 1. The application to strike out the appeal is dismissed. 2. Costs to the appellant/respondent, Regulator of International Banking, in the sum of $1500.00 to be paid by the third respondent, Bank of Nevis International Limited, within 21 days of the date of this order. Reason: By notice of appeal filed on 20th March 2023, the appellant, Regulator of International Banking, appealed against the judgment of Thompson J delivered on 10th February 2023. By notice of application filed on 20th February 2024, the third respondent, Bank of Nevis International Limited, applied to this Court for an order that the appellant’s notice of appeal be struck out for want of prosecution. An affidavit in support of the notice of application was also filed on 20th February 2024. A further affidavit in support of the notice of application to strike out the notice of appeal was filed on 26th February 2024. In its application and submissions, the third respondent submitted that rule 62.14 of the Civil Procedure Rules (Revised Edition) 2023 provides that an appellant must file and serve its skeleton arguments within 52 days of receipt of the notice that the transcript is available. Rule 62.15 provides that the appellant must file the record of appeal within 21 days of receipt of the notice that the transcript is available. The appellant filed the record of appeal on 8th September 2023. Five months elapsed from the date of the filing of the record of appeal to the date of the filing of the application to strike out the appeal. The appellant has still not filed its skeleton arguments. The third respondent contended that it considers itself prejudiced by the appellant’s inaction because by order dated 30th May 2023, Webster JA granted a limited stay on the execution of the judgment of the trial judge which quashed the appellant’s decision and ordered restitution of sums paid by the third respondent to the appellant. The third respondent further contended that it continues to be deprived of its funds and the ability to carry on its business. In the affidavits filed by the third respondent, it was alleged that upon the filing of the notice of appeal, steps were to be taken by the appellant to secure the transcript of the proceedings in the High Court if the appellant intended to rely on it. The third respondent also alleged that it was unaware of any attempts made by the appellant to secure the transcripts in the filing of its notice of appeal 11 months prior. On 28th February 2024, the appellant filed a notice of opposition to the strike out application in which it argued that (1) there has been no delay or inactivity on the appellant’s part as alleged or at all; and (2) the obligation to arrange for the preparation of the transcript of the proceedings in the court below is imposed by CPR 62.12(1) on the court below and not on the appellant as intimated in paragraph 4 of the affidavit of Stephen Agbeyegbe filed on behalf of the third respondent. The appellant further contended that the obligation to file skeleton arguments is yet to arise and it follows that there has been no delay such as to ground an application to strike out the notice of appeal for want of prosecution. On 31st May 2024, the third respondent filed skeleton arguments in support of its application to strike out the notice of appeal. On 5th June 2024, the appellant filed skeleton arguments in opposition to the application to strike out the notice of appeal for want of prosecution. The Court read the notice of appeal, the strike out application and the two affidavits in support, the notice of opposition to the strike out application, and the skeleton arguments in support of and in opposition to the application; heard briefly from counsel for both parties; and considered the judgment of this Court in Wycliffe Baird v David Goldgar et al SKBHCVAP2019/0038 (delivered 22nd December 2023, unreported) which was referred to by the third respondent, in which this Court struck out an appeal for want of prosecution and abuse of process. The Court noted that in Wycliffe Baird, the appellant was in possession of the transcript from April 2020 and had not, up to the hearing of the appeal 3 years later in April 2023, filed the record of appeal or skeleton arguments in support of his appeal, facts which are vastly different from those in the present appeal. This case therefore did not assist the third respondent. In light of these considerations, the Court concluded that the appeal ought not to be struck out and that the application to strike out the appeal should be dismissed. Case Name: [1] Heritage Plantation Condominiums Ltd [2] Heritage Plantation Inc [3] Mervin Grant v Doche & Doche Inc [SKBHCVAP2024/0002] (Saint Christopher and Nevis) Date: Monday, 17th June 2024 Coram: The Hon. Mr. Mario Michel, Chief Justice [Ag.] The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Applicant/Respond ent: Dr. Henry Browne KC Mr. Anthony Astaphan SC with him Mr. Sylvester Anthony and Ms. Rénal Edwards Respondents/Appe llants: N/A Issues: Application to discharge, vary or revoke order of a single judge - Order granting stay of execution pending appeal - Principles to be considered in the grant of a stay of execution - Whether there was sufficient evidence before the the learned judge to determine that the appeal would be stifled or rendered nugatory if the stay was not granted - Whether the learned judge properly considered whether the appellants had good prospects of success on appeal - Whether the appellants have shown any prospects of success on appeal Type of Order: Result / Order: IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Bank of Nevis International Trust Services Inc v Belmont Holdings SKN Limited [NEVHCVAP2023/0018] (Saint Christopher and Nevis) Date: Monday, 17th June 2024 Coram: The Hon. Mr. Mario Michel, Chief Justice [Ag.] The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Michael Fay KC Respondent: Ms. Kurlyn Merchant Issues: Interlocutory appeal – Whether master erred in refusing claim for summary judgment – Whether issues in the matter were not highly complexed such that the master ought to have granted summary judgment – Whether respondent had a realistic prospect of succeeding in its defence to the appellant’s counterclaim – Presumption of resulting trust – Whether shares transferred by the appellant to respondent amounted to a resulting trust in the absence of the transfer being for a commercial reason or a gift – Whether issue of resulting trust is triable and unsuitable for summary judgment - Damages upon repudiatory breach – Whether the Joint Venture Facility Agreement was the subject of a repudiatory breach and entitles the respondent to damages - Entitlement to damages and return of consideration – Whether respondent entitled to both damages for repudiatory breach of contract and a return of the shares which constituted consideration – Entitlement to damages and rescission – Whether respondent entitled to both damages for repudiatory breach of contract and rescission of the contract Provision of information appeal – Whether it was appropriate for the learned master to have determined a CPR 34.2 application without hearing oral submissions – Whether learned master failed to properly apply test in CPR 34.2(2) and consider factors in CPR 34.2(3) – Whether learned master wrongly applied test of information being unduly onerous and unnecessary to be provided by respondent – Whether learned master erred by failing to give adequate reasons for dismissing application Costs – Whether costs order to the respondent for the summary judgment application should be set aside if the master’s decision is reversed Type of order: N/A Result/Order: IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Bank of Nevis International Limited v [1] Sheila Hobbs [2] Adam Hobbs [NEVHCVAP2024/0002] (Saint Christopher and Nevis) Date: Monday, 17th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Applicant: Ms. Kalisia Marks Respondents: Ms. Kurlyn Merchant and Ms. Kayla Theeuwen Issues: Application for leave to appeal - Application for a stay of execution of the order of the learned judge - Summary judgment - Respondents’ application for summary judgment seeking among others return of the sums in their account (“the summary judgment application”) - Applicant’s application to restrain respondent’s counsel from acting on behalf of them (“the restraint application”) - Whether the judge erred in adjournming the summary judgment application and the restraint application, and ordering that the respondent pay the said sums to WeirFoulds LLP in an interest-bearing trust account at the Bank of Montreal in Toronto, Ontario, Canada in trust pending further order of the court - Whether the judge embarked upon an accelerated trial of the primary reliefs sought by the respondents - Whether the judge relied on the evidence filed in the summary judgment application in making the order - Whether the judge applied a legal standard akin to that of an evidentiary burden on trial - Whether the judge made certain oral findings which had the nature of precluding the applicant from obtaining a fair hearing of the summary judgment application - Whether the judge erred in failing to consider the applicant’s offer to set up an escrow account to hold these sums, and bear all associated costs, and in so doing, failed to adequately treat with the applicant’s objection that the respondents’ attorney was not an independent party to the proceedings Type of Order: Oral Decision Result / Order: IT IS HEREBY ORDERED THAT: 1. The application for leave to appeal is dismissed. 2. The stay of the proceedings granted by this Court on 23rd April 2024 is discontinued. 3. The application for a stay of the hearing of the summary judgment application is refused. Reason: Upon reading the notice of application for leave to appeal against the decision of Thompson J dated 18th March 2024, filed on 21st March 2024 along with the written submissions filed on 11th April 2024, and having seen the notice of opposition filed by the respondent on 17th April 2024, and having read and heard the oral submissions of the respondent filed on the said day with respect to the stay, the Court having considered Rule 62.2(8) of the Civil Procedure Rules (Revised Edition) 2023, which provides that leave to appeal may be given only when: (a) the Court considers that the appeal has a realistic prospect of success; or (b) there is some other compelling reason why the appeal should be heard, the Court was of the opinion that the application had not met that threshold for leave to appeal. The submissions of the applicant did not suggest any relevant matters that would allow the Court to be of the opinion that the appeal would have a realistic prospect of success. The Court having conducted a review of the transcript and the orders made by the learned trial judge, the Court was not satisfied that the learned trial judge embarked: (1) on an expedited trial of the issues before the court; (2) erred in adjourning the summary judgment application along with the other applications which were made before him; (3) having looked at the transcript and the order that the learned trial judge granted the primary relief sought in the proceedings; (4) on making an order for an “interim payment” pursuant to CPR 17.6 when he ordered that the relevant sums be paid to the account of the respondents’ solicitor with an undertaking by the solicitor that the funds would be preserved. The order made by the learned judge was an alternative to paying the sums into court, which is the normal and usual order based on one of the facts that the relevant sums were not readily available within the Federation of Saint Christopher and Nevis. The Court was of the view that the learned trial judge embarked on an exercise to properly case manage the matters before him pursuant to the powers given to the court under CPR 26. The Court found no fault in the procedure adopted by the learned trial judge in conducting that case management exercise. The Court therefore found that there was no realistic prospect of success nor was there any compelling reason why leave to appeal should be granted. The Court accordingly dismissed the application for leave to appeal. The Court discontinued the stay of the proceedings granted by this Court on 23rd April 2024. The application for the stay of the summary judgment application before the trial judge was also refused. The Court was not of the view that: (1) the trial judge predetermined the matter; (2) that the trial judge closed his mind to an objective determination of the application. The Court was not of the view that 1. the trial judge pre-determined the issues based on the transcript where he indicated that he was open to hearing the parties on the adjourned date with respect to the application; and 2. with respect to the stay of proceedings granted by this Court, the Court was not of the view that even if leave to appeal was granted that the appeal would have been stifled in any way. At the end of the day, the solicitors for the respondents hold funds on trust and have given an undertaking to the court not to interfere with or dissipate those funds in any way. Case Name: Social Security Board v [1] First Caribbean International Bank (Barbados) Limited [2] Exclusive Retreats Limited [SKBHCVAP2022/0007] (Saint Christopher and Nevis) Date: Monday, 17th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Applicant: Ms. Angelina Gracy Sookoo-Bobb with her Ms. Jeneice Carty Respondents: Mr. Damian Kelsick KC with him Hadya Dolphin for the 1st respondent No appearance for the 2nd respondent Issues: Civil appeal - Application for leave to appeal- Application for extension of time for leave to appeal - Reason for delay - Whether there was a good reason for the delay - Whether the intended appeal had a realistic prospect of success Type of Order: Oral Decision Result / Order: IT IS HEREBY ORDERED THAT: 1. The application for an extension of time for leave to appeal is granted. 2. Leave is granted to the appellant to appeal the judgment of the learned master delivered 9th May 2022. 3. The notice of appeal filed on 25th May 2022 is deemed properly filed. Reason: The appellant wished to appeal the judgment delivered by the learned master in this matter on 9th May 2022. The appellant filed a notice of appeal dated 25th May 2022 without having made an application for leave to appeal as required by rule 62.2(1) of the Civil Procedure Rules (Revised Edition) 2023. The appellant eventually filed an application for leave to appeal on 7th June 2024 in which they sought an extension of time to file said notice and to deem the said notice of appeal filed on 25th May 2022 properly filed. Rule 62.2(1) of the Civil Procedure Rules (Revised Edition) 2023 requires a party who applies for leave to appeal must do so within 21 days of the decision. Further CPR 62.2(8) provides that leave to appeal will only be granted when a.) the court considers that the appeal has a realistic prospect of success or b.) there is some other compelling reason why the appeal should be heard. In this case, as accepted by the appellant, there was an inordinate delay in filing the application for leave to appeal, a period of some 2 years. Additionally, the appellant agreed that there was no good reason provided to the Court for the inordinate delay. The Court having observed that the notice of appeal was filed on 25th May 2022 and being of the view that there was no prejudice to the respondent and that the threshold of a realistic prospect of success has been met by the appellant, was minded to grant leave to appeal to the appellant. The Court therefore extended the time for filing the said application for leave to appeal to 7th June 2024 and deemed the notice of appeal filed on 25th May 2022 properly filed. The Court also noted for the record, its displeasure with the delay in the matter and that the reason proffered for such delay was no excuse whatsoever. Case Name: Social Security Board v [1] First Caribbean International Bank (Barbados) Limited [2] Exclusive Retreats Limited [SKBHCVAP2022/0007] (Saint Christopher and Nevis) Date: Monday, 17th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Appellant: Mrs. Angelina Gracy Sookoo-Bobb with her Ms. Jeneice Carty Respondents: Mr. Damian Kelsick KC with him Ms. Hadya Dolphin for the 1st respondent No appearance for the 2nd respondent Issues: Civil Appeal - Whether the learned master erred in finding that the appellant did not provide any evidence that it had instituted civil proceedings against the 2nd respondent in relation to the debt claimed by the appellant - Whether the master erred in finding that the judgments had to be registered in the High Court - Whether the master failed to give due consideration to the Social Security Act Cap. 22.10 which prescribed the magistrate’s court as the appellant’s court of competent jurisdiction - Whether the master failed to give due consideration to the fact that by virtue of section 73 (now 75) of the income Tax Act Cap. 20.22 there was no need for a judgment to be registered in the High Court - Whether the master erred by finding that the word “property” as defined in the Income Tax Act does not include real property - Whether the master erred by concluding that section 3 of the Tax Administration and Procedures Act Cap. 20.52 must be read in conjunction with section 44 of the Social Security Act and sections 70 to 75 (now 72 to 77) of the Income Tax Act - Whether the master erred in finding that the sums owed by the 2nd respondent were taxes under the Tax Administration and Procedures Act and therefore, subject to section 30 of that Act, the appellant did not rank in priority over the 1st respondent - Whether the master failed to give due consideration to the effect of the 1st respondent’s bad faith in moving to settle the scheme of division without notice to the appellant and in breach of section 81 of the Title by Registration Act Cap. 10.19 - Whether the master failed to give due consideration the impact of the 1st respondent’s breach of section 73 (now 75) of the Income Tax Act on the application to settle the scheme of division Type of order: N/A Result/Order: IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Bank of Nevis International Limited v [1] Nevis IP Holdings LLC [2] St Kitts-Nevis Anguilla National Bank Ms. Kalisia Marks [NEVHCVAP2022/0017] (Saint Christopher and Nevis) Date: Tuesday, 18th June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant/Respond ent: Ms. Edisha Greene 1st Respondent/Applic ant: 2nd respondent: No appearance Issues: Application to strike out notice of appeal for want of prosecution - Notice of appeal filed on 13th December 2022 - Stay of execution granted in appellant’s favour on 31st January 2023 - No further steps taken by the appellant to prosecute appeal since the grant of the stay - No objection filed by the appellant in response to the strike out application - Whether the notice of appeal ought to be struck out for want of prosecution Type of Order: Oral decision Result / Order: IT IS HEREBY ORDERED THAT: 1. The application to strike out the notice of appeal is granted. 2. The notice of appeal filed on 13th December 2022 is struck out. 3. The stay of execution granted on 31st January 2023 hereby falls away. The appellant shall pay the 1st respondent’s costs of the application in the sum of $1,500.00 EC within 14 days of the date of this order. Reason: Before the Court was an application by the 1st respondent (“the applicant”) to strike out the notice of appeal filed by the appellant on 13th December 2022 challenging the order of Thompson Jr J dated 9th December 2022 granting an attachment order in favour of the applicant in relation to funds standing to the appellant’s credit held in a bank account held with the 2nd respondent. Subsequent to filing its appeal, the appellant sought and obtained an interim stay of execution of the said order of Thompson Jr J and this was granted by a single judge of this Court on 29th December 2022. By order dated 31st January 2023, the stay was extended pending the hearing and determination of the appeal. The applicant sought to strike out the appeal for want of prosecution for two reasons: (1) the appellant’s failure to file its skeleton arguments within the time prescribed by rule 62.11 of the Civil Procedure Rules 2000 (“CPR”) which requires an appellant to file its skeleton argument within 52 days of receipt of the notice issued by the High Court pursuant to CPR 62.12 notifying the parties of the availability of the transcript; and (2) that the appellant has failed to file the record of appeal and core bundle despite the availability of the transcript which was procured through the efforts of the applicant since June 2023. The affidavit in support of the application to strike averred that the applicant’s several efforts to reach out to the appellant between June and October 2023 produced no response from the appellant. Considering an application to strike, the Court must have in mind, as first base, the overriding objective of the CPR which is to enable the Court to deal with cases justly. The need to ensure that matters are dealt with expeditiously is one among a number of non- exhaustive factors listed in subsection 2 to which a Court must have regard. The principles which guide the Court when presented with an application to strike out a notice of appeal are well known and have been clearly articulated by this Court in several decisions, including Michael Baptiste v Yolande Bain-Joseph GDAHCVAP2006/026 (delivered 7th February 2008, unreported) and First Domestic Insurance Company Ltd v Industrial Enterprises Ltd. et al DOMHCVAP2014/0024 (delivered 27th May 2020, unreported). In short, the aim is to do justice between the parties in furtherance of the overriding objective. Factors relevant to the attainment of that objective include the length of the delay, the reasons for the delay, the merits of the appeal and the prejudice to the litigants. The appeal should not be struck out where there is a satisfactory explanation for failure to file the record of appeal and skeleton arguments and the delay is neither intentional nor inordinate and has occasioned no prejudice to the respondent. In such a case, furthering the overriding objective might require the court to fashion a remedy that does justice as between the parties. With those principles in mind, the relevant considerations would be assessed. The length of the delay: The court office did not issue a notice pursuant to rule 62.12. The evidence was that the applicant, of its own initiative, procured the production of the transcript and notified the appellant of its availability and provided the appellant with a copy of it on or around 23rd June 2023 and uploaded it to the E-litigation portal on 17th October 2023. As this Court has held in Wycliffe Baird v David Goldgar et al SKBHCVAP2019/0038 (delivered 22nd December 2023, unreported) the need for the court office to issue such a notice is otiose where a copy of the transcript is already in existence and is in possession of the parties. In this case, the transcript was made available to the appellant and had been uploaded to the portal. Accordingly, reckoning the delay from 23rd June 2023, when the appellant was served with a copy of the transcript, until the application to strike out was filed, the period of delay is approximately 6 months. This period of delay is inordinate. The reasons for the delay: In this case the appellant has not engaged with the application at all, so obviously the question of assessing the reasonableness or otherwise of such reasons does not arise. There was simply no reason advanced for the delay, which amounts to no good reasons. Prospects of success of the appeal: On a consideration of the grounds of the appeal, it was apparent that the nub of the appellant’s complaint was that “Thompson Jr J’s exercise of his discretion on 9th December 2022 in granting the attachment application was clearly or plainly wrong and is hence susceptible to the appeal herein”. It was said further that the judge erred in law and/or in fact in failing to give any or sufficient consideration to (1) the fact that the appellant had filed a suspicious activity report with the Financial Intelligence Unit; (2) the application by the appellant to adjourn the hearing to January 2023 to provide an opportunity for the FIU to form a view and indicate its position with respect to the suspicious activity report; and (3) gave too much weight to the fact that the suspicious activity report was only recently made. In essence, the appellant sought to challenge the exercise of the judge’s discretion in relation to each of these matters. The principles that inform an appellate Court’s interference with the exercise of a judge’s discretion were articulated by Sir Vincent Floissac CJ as he then was in Dufour and others v Helenair Corporation Ltd and others (1996) 52 WIR 188. In summary, an appeal will not be allowed unless the appellate court is satisfied that in exercising his/her judicial discretion the judge erred in principle either by failing to take into account relevant factors and consideration or by taking into account or by being influenced by irrelevant factors and considerations and that as a result of the error or the degree of error, the trial judge’s decision exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong. Based on the grounds of appeal, the appellant faced an uphill task and the Court was not persuaded on what was before it that the appeal had a real prospect of succeeding. Prejudice: The applicant has undoubtedly been prejudiced and continued to be prejudiced, in that the appellant’s delay in prosecuting the appeal has meant that they have been kept out of funds because of a stay obtained by the appellant/ respondent. For all of the foregoing reasons, the application to strike out the notice of appeal was granted and the notice of appeal filed on 13th December 2022 was struck out. The stay of execution granted on 31st January 2023 thereby fell away. Case Name: Joleyne Jeffers v Seana Williams [SKBMCVAP2022/0001] (Saint Christopher and Nevis) Ms. Renal Edwards Date: Tuesday, 18th June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Applicant/Respond ent: In person Respondent/Appell ant: Oral Decision Issues: Application to strike out appeal for failure to enter into a recognizance or give security - Application to withdraw appeal - Costs Type of Order: Result / Order: IT IS HEREBY ORDERED THAT: 1. Leave is granted to withdraw the appeal which stands dismissed. 2. The respondent/appellant shall pay costs to the applicant in the sum of $600.00 within 21 days of the date of this order. Reason: Upon the matter coming on for hearing for the appeal to be struck out and upon the appellant/respondent indicating that she sought leave to withdraw the appeal, the Court granted leave to withdraw the appeal which effectively dismissed the appeal. Case Name: Beaumont Park Limited v Technology Development and Investments Ltd [SKBHCVAP2020/0018] (Saint Christopher and Nevis) Date: Tuesday, 18th June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Damian Kelsick KC with him Ms. Hadya Dolphin and Ms. Chanté Francis Respondent: Ms. Jean M. Dyer Issues: Civil appeal – Compromise and settlement agreement - Repayment of sums advanced – Whether the learned judge’s decision should be upheld because it cannot be said to be manifestly wrong – Whether the settlement agreement covered the sums advanced that were due and owing by the respondent and as such were not recoverable – Whether the learned judge erred in finding that the appellant’s claim is barred by virtue of clauses 17 to 19 of the settlement agreement – Whether the learned judge erred in holding that the loan arose in the respondent’s capacity as a shareholder because it was used to discharge its obligations under the shareholder agreement – Whether the respondent must repay the sums advanced to it by the appellant as they were used to discharge the respondent’s obligation under the shareholder agreement – Whether derivative claims were within the contemplation of the parties in the context of the settlement agreement – Whether the learned judge erred in his decision by conflating the claim against the respondent for the repayment of sums advanced with the claim against Mr. Kryuchkov and/or the respondent in relation to fiduciary duties Type of order: N/A Result/Order: [Oral Delivery] IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Shonnia Kavelle Darway- Brookes v Nassibou Butler [SKBMCVAP2023/0005] (Saint Christopher and Nevis) Date: Wednesday, 19th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal Ms. Indira Butler Appearances: Applicant/Respond ent: Ms. Derriann Charles and Ms. Christiane Prowell Respondent/Appell ant: Issues: Application to strike out appeal - Jurisdiction of magistrate to review decision - Whether it was open to the learned magistrate to review his decision outside of the time frame stipulated by statute - Section 151 of the Magistrate Code of Procedure Act Type of Order: Oral Decision Result/Order: IT IS HEREBY ORDERED THAT: 1. The application to strike out the notice of appeal filed on 6th July 2023 is granted. 2. The respondent/appellant to pay costs to the applicant/respondent in the sum of $1,500.00. Reason: The applicant/ respondent applied by way of amended notice of application filed on 27th May 2024 to strike out the notice of appeal filed by the respondent/appellant on 6th July 2023. The respondent/appellant’s application both written and oral before the learned magistrate dated 21st June 2023 were not made within 1 month of the learned magistrate’s original decision dated 16th November 2022 contrary to section 151 of the Magistrate’s Code of Procedure Act, Cap 3.17 of the Laws of St.Kitts and Nevis. Consequently, any decision made by the magistrate on 21st June 2023 was made without jurisdiction and therefore any ruling made by the magistrate pursuant to the application made by the respondent/appellant on 21st June 2023 was null, void and of no effect. Therefore, the Court granted the application to strike out the notice of appeal filed on 6th July 2023 with costs to the applicant/ respondent. Case Name: Vanita Henry v [1] The Superintendent of Public Works (now styled The Director of Public Works also as Surveyor of Roads) [2] The Attorney General of St. Kitts and Nevis [SKBHCVAP2018/0024] (Saint Christopher and Nevis) Date: Wednesday, 19th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal Appearances: Appellant: Ms. Chauntelle Hobson Respondents: Mr. Christopher Forde Issues: Civil Appeal - Breach of statutory duty - Negligence - Section 7 of the Roads Act Cap 15.05 - Whether there was a statutory duty imposed on the first respondent to keep the roadway and the verge in question in a proper state of repair and whether there was a breach of that duty - Whether the alleged breach gave rise to a private cause of action - Whether there existed a separate cause of action in the tort of negligence, in the event that the alleged breach of the statutory duty did not give rise to a private cause of action - Whether the common law rule exempting public authorities from liability for nonfeasance operated to preclude the respondents from incurring liability in the tort of negligence Type of Order: N/A Result / Order: [Oral Delivery] IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Bank of Nevis International Limited v Ocean Consulting Services Ltd [SKBHCVAP2024/0001] (Saint Christopher and Nevis) Adjournment Date: Wednesday, 19th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal Appearances: Appellant: Ms. Kalisia Marks Respondent: Mr. Benjamin Drakes and Ms. Joia Reece Mr. Chris Miseresky and Mr. David Collins as interested parties Issues: Interlocutory Appeal - Appointment of Receiver - Whether judge erred by granting an order for the appointment of receivers on an application that was argued before and considered by another judge - Whether the judge erred in law by denying the appellant an opportunity to be heard on the application for the appointment of the receiver prior to making her order - Absence of transcript of proceedings Type of Order: Result / Order: IT IS HEREBY ORDERED THAT: 1. The transcript of proceedings of 15th December 2023 be provided to the Court within two months of the date of this order. 2. The matter is adjourned to a date to be fixed by the Chief Registrar. Reason: After hearing counsel for the appellant, the Court decided that the transcript of proceedings of 15th December 2023 would be needed in order to make a final determination in the matter. Accordingly, the Court made an order for the production of the transcript and adjourned the hearing of the substantive appeal to a date to be fixed by the Chief Registrar. Case Name: Bank of Nevis International Limited v ZNX LTD [NEVHCVAP2024/0010] (Saint Christopher and Nevis) Date: Thursday, 20th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Applicant: Ms. Kalisia Marks Respondent: Ms. Kurlyn Merchant Issues: Application for stay of execution - Whether the appeal has a realistic prospect of success - Whether the appeal will be stifled or rendered nugatory if a stay is not granted - Whether the prejudice to the applicant if a stay is not granted will outweigh any prejudice to the respondent if a stay is granted Type of Order: Oral Decision Result/Order: IT IS HEREBY ORDERED THAT: 1. The notice of appeal and submissions, having already been ordered to be filed and served on or before 28th June 2024, shall be filed along with all the other documents required to be filed as set out in CPR 62.13(1). 2. The respondent is to file its submissions within 14 days of service of the notice of appeal, along with the other documents as specified in CPR 62.13(5). 3. The appeal is set down for hearing on paper by consent on an expedited basis for hearing by the Full Court on a date to be set by the Chief Registrar. 4. The interim stay granted by Ward JA on 7th June 2024 shall continue until the hearing and disposal of the appeal. 5. Costs in the application shall be costs in the appeal. Reason: The applicant filed a notice of application for a stay of execution on 4th June 2024, requesting a stay of the order of Thompson J dismissing its application to amend its defence. An interim stay was granted by Ward JA on 7th June 2024. The Court, having considered both the oral and written submissions of the parties, the interests of justice, and the principles to be applied on the grant of a stay as set out in the well-known case of C-Mobile Services Limited v Huawei Technologies Co. Limited (delivered 2nd October 2014, unreported), found that the stay of execution ought to be granted. The Court further ordered that the substantive appeal be heard on an expedited basis, and the parties agreed to have said appeal heard on the papers. Case Name: St. Kitts Nevis Anguilla Trading and Development Company Limited v Jennifer Archibald [SKBHCVAP2022/0003] (Saint Christopher and Nevis) Date: Thursday, 20th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Damian Kelsick KC with him Ms. Hadya Dolphin Respondent: Mr. Leon Charles Issues: Civil Appeal – Personal Injury – Whether trial judge erred in finding that the respondent’s fibromyalgia was caused by a fall on the appellant’s premises – Expert reports – Whether expert reports should have been considered by the judge as they were disclosed but were not entered into evidence – Causal link- Whether there was no epidemiologic or statistical evidence to support any of the statements by any of the experts/ the injury suffered - Whether the trial judge erred in his assessment of damages for the fibromyalgia injury – Counter Notice of Appeal - Award of special damages- Loss of future earnings – Whether judge erred in calculating the respondent’s loss of future pension payments by using a multiplier of 5 - Loss of earnings – Whether the judge erred in making an award for loss of income up to the date of the appellant’s retirement and not up to the date of the trial Type of Order: N/A Result / Order: IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Kevin A. Horstwood v Adam Bilzerian [SKBHCVAP2023/0005] (Saint Christopher and Nevis) Date: Thursday, 20th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mrs. Michelle Slack-Clarke Respondent: Ms. Christiane Prowell with Ms. Derriann Charles Issues: Interlocutory Appeal - CPR 19.2(5)(b) - Exercise of discretion - The Court’s discretion to order the substitution of a new party for an existing one - Whether the Learned Judge erred in the exercise of her discretion pursuant to CPR 19.2(5) by granting the Order to substitute International Investments Limited for the Claimant – Whether the learned Judge erred when she made an order substituting a new party for an existing one without any evidence being presented to the Court to substantiate the Claimant’s assertion that its interest had passed to the new party – Whether the learned Judge further erred in granting an order that the Claimant had satisfied CPR 19.2(5) when the Claimant presented no evidence from which the Court Oral Judgment could properly conclude that it could resolve the matters in dispute more effectively by substituting the new party for the existing party - Whether the Learned Judge erred in law in making an order for the Appellant to pay the Claimant’s costs on its substitution application when the application was the Claimant’s application for an amendment of its statement of case Type of Order: Result / Order: IT IS HEREBY ORDERED THAT: 1. The appeal is allowed. 2. The order made by the learned judge on the 23rd of June 2023 is set aside in its entirety. 3. The appellant shall have his costs in the appeal to be assessed if not agreed within 21 days of the date of this order. 4. The appellant shall have its costs of the application in the court below in the sum of $1,500.00. Reason: Before the Court was a notice of interlocutory appeal filed on 14th March 2024 by the appellant Kevin Horstwood. By this notice of appeal in respect of which leave to appeal was granted on 27th February 2024 the appellant appealed against the decision and order of the learned judge delivered on 23rd June 2023. By that decision and order the learned judge granted the application of the respondent Adam Bilzerian to have the company International Investment Ltd., a limited liability company incorporated under the laws of Saint Cristopher and Nevis to be substituted in place and instead of the said Adam Bilzerian in the proceedings below and made an order that the appellant shall pay the applicant’s costs of that application in the sum of EC $1,500.00 on or before 21st July 2023. The appellant appealed against both orders. The matter came before the learned judge below by an application that was filed on 18th May 2023 which was supported by the affidavit of the respondent filed on 19th May 2023. Exhibited to that affidavit was a document headed “notice of consent” dated 18th May 2023 by which the company International Investment Ltd. consented to be substituted in place and instead of Adam Bilzerian as the claimant in the proceedings below. The grounds of the application were set out in the application itself made pursuant to Civil Procedure Rules (Revised) 2023 (“CPR”) 19.2 (5). It was also stated that pursuant to CPR 19.3 (4) the written consent of the substituted claimant must be filed and that the claimant in this matter has assigned all his interest and liabilities to International Investment Ltd. The application was opposed by the appellant who filed an affidavit on 9th June 2023 in the proceedings below by which the appellant relied on 4 grounds set out in the affidavit. The matter came before the master on 23rd June 2023 and, as disclosed by the transcript of the proceedings below, after hearing argument from counsel on both sides, the master indicated that she would grant the order and then proceeded to treat with the terms of the order itself. The Court considered page 168 of the transcript. The grounds of appeal were set out in the appellant’s notice of appeal with a central ground of appeal being that the applicant did not put before the learned master a proper or sufficient evidential basis upon which the substitution order ought to be made or could be made, and secondly in relation to the costs order, that in relation to that kind of application the learned judge erred in making an order for costs against the appellant, it being the respondent’s application in relation to a matter of the respondent’s own making. The Court considered the written and oral submissions made by learned counsel on both sides and was satisfied that the learned master erred in making the substitution order. In particular, the learned master did not seem to treat with the various points of opposition advanced by the appellant to the application. More particularly the Court upheld the ground of opposition that the evidence produced was insufficient for the making of such order in that the transfer of the interests of Adam Bilzerian to the company had not been exhibited or put before the court for the court to scrutinize particularly as to whether that instrument, if it existed, pertained to the matters in issue in the proceedings below, and whether effectively there was a transfer of the interests and liabilities of Adam Bilzerian to the company. The Court agreed with the appellant’s submission that the document being the foundational document on which the substitution application rests, ought to have been produced in evidence for the learned master to scrutinize and absent that document, it was not a proper exercise of the master’s powers and discretion to make an order for substitution. In that respect the Court determined that learned master erred and that error was an error of principle which was sufficient to set aside the said order. The Court also considered the submissions in relation to the costs order and was of the view that the costs order was made on a wrong principle. However, on the outcome of the appeal, it was inevitable that the costs order would be set aside. Accordingly, the Court ordered that the order made by the learned master on the 23rd of June 2023 is set aside in its entirety with costs to be paid to the appellant on assessment. Case Name: Everton Elliot v Anselm Caines [SKBHCVAP2023/0004] (Saint Christopher and Nevis) Date: Friday, 21st June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Mr. Leon Charles Appearances: Appellant/Respond ent: Mr. Perry Joseph Respondent/Applic ant: Issues: Application to strike out appeal - Whether appeal should be struck out for abuse of process and for want of prosecution – Delay in filing written submissions - Rule 62.13(1) of the Civil Procedure Rules (Revised Edition) 2023 - Rule 25.3(1)(a) of the Civil Procedure Rules (Revised Edition) 2023 - Failure to comply with a rule, practice direction, order or direction given by the Court in the proceedings- Length of delay - Whether the respondent’s 9 months delay in filing and serving written submissions was excessive and inordinate - Reasons for delay- Whether the respondent advanced a good explanation for the delay – Prejudice - Whether the delay amounts to prejudice to the applicant as applicant’s defamation claim has been pending in the High Court for some 2 years- Merits of the appeal - Whether the appellant’s appeal has good prospects of success Type of Order: Oral Decision Result/Order: IT IS HEREBY ORDERED THAT: 1. The application to strike out the notice of appeal is granted. 2. The notice of appeal filed on 10th August 2023 is struck out. 3. The appellant shall pay to the respondent’s costs of the application in the sum of $2,500.00 to be paid within 28 days of the date of this order. 4. The substantive matter in the High Court is to proceed hereafter in accordance with the Civil Procedure Rules. Reason: Before the Court was an application filed on 8th April 2024 by the respondent, who is the applicant, with supporting affidavit to strike out the notice of appeal filed by the appellant on 10th August 2023 challenging the decision of Master Pariagsingh delivered on 12th June 2023, arising from applications by the appellant on the one hand, to strike out a libel claim and disputing the jurisdiction of the court to try the claim and by the respondent on the other hand, to transfer the proceedings to Nevis Circuit from the Saint Kitts circuit. The applicant’s application to strike out the appeal is made pursuant to CPR rules 62.13(1) and 25.3(1)(a) on the grounds that the tardy filing of the appellant’s skeleton argument is an abuse of process and/or should be dismissed for want of prosecution and/or on the further ground that it is likely to obstruct the just disposal of the proceedings. The affidavit in support of the application to strike averred inter alia that the applicant’s several efforts to reach out to the appellant between June and October 2023 produced no response from the appellant with a view to advancing the appeal and further pointed to discussions held congenially between the parties initially in October and subsequently in February 2024 to agreed timelines. The absence of sound reasons for the delayed filings was another point taken by the appellant as well as what he described as prejudice to the respondent by reason that the substantive claim and the appeal proceedings have been stymied respectively over periods of two years and nine months. The appellant conceded that his application for an extension of time to file skeleton arguments and the filing of the skeleton arguments came late however he insisted that the delay in filing of the skeleton arguments was not inordinate. In considering an application to strike, the Court must have in mind the overriding objective of the Civil Procedure Rules which is to enable the court to deal with cases justly. The need to ensure that matters are dealt with expeditiously is among a number of non- exhaustive factors listed in the Civil Procedure Rules rule 1.1 to which a court must have regard. Further, the principles which guide this Court when considering an application to strike out a notice of appeal are well established and have been rehearsed in a number of cases including in Michael Baptiste v Yoland Bain-Joseph GDAHCVAP2006/0026 (delivered 7th February 2008, unreported) and First Domestic Insurance Co. Ltd. v Industrial Enterprises Ltd. et al DOMHCVAP2014/0024 (delivered 27th May 2020, unreported). The objective is to seek to do justice between the parties in the furtherance of the overriding objective. The Court must consider all of the circumstances and in particular four factors namely: the length of the delay, the reasons for the delay, the merits of the appeal and the prejudice to the parties. Bearing those principles in mind, those factors were then considered. The Court noted that the appeal in this matter was filed on 10th August 2023, the appellant having obtained leave to appeal. The Court noted further that an application for stay was refused on 31st October 2023. The applicant had made an application for an extension of time to file its defence which was adjourned pending the determination of the appeal by order dated 29th September 2023. The Court noted further that while there was no stay, proceedings in the lower court have effectively been stayed with respect to the filing of the defence. It was a matter of record that the notice of appeal for this Court of Appeal hearing was issued in March 2024. The appellant thereafter on 21st May 2024 finally filed his skeleton arguments and made an application belatedly on 27th May 2024 for an extension of time to file those skeleton arguments and for those skeleton arguments to be deemed properly filed. With respect to the length of delay, arithmetically, nine months had elapsed between the filing of the notice of appeal in August 2023 and the filing of the skeleton arguments on 21st May 2024. The Court in the leading decision of Byron CJ in The Barbuda Council v Attorney General et al Civil Appeal No. 12 of 1994 opined that in that case 8 months was inordinate and excessive. In this case, the Court considered that the 9 months which elapsed between the filing of the notice of appeal and the filing of the skeleton arguments was also excessive and inordinate. In relation to the reasons for the delay, the appellant attributed the delay largely to the conduct of his legal practitioner in relation to the period of 10th August to the end of August. He indicated that his legal practitioner was away on vacation when the skeleton arguments should properly have been filed. Further, that between the period leading up to October 2023 and some period in February 2024, the parties were engaged in a series of discussions which resulted in the agreement of certain timelines by which they were to file their respective skeleton arguments. Further, the appellant indicated or asserted in his affidavit in opposition to this application, that his legal practitioner was unavoidably unable to complete filing of skeleton arguments in time for the February agreed timelines due to a family emergency occasioned by illness and thereafter by competing professional priorities and a combination of those factors militated against the filing within that period. The Court was not convinced that those reasons provided a good explanation for the delayed filings and would not satisfy the requirements of the Civil Procedure Rules and the precedents the Court alluded to. The Court bore in mind the dictum of Saunders JA in Francis v Saint Kitts and Nevis Finance Company Limited Civil Appeal No. 21 of 2003 where he opined that the court has to be careful not to set precedents which may have the effect of diluting the efficacy and intention of the Civil Procedure Rules which is to create and bring to the administration of justice in the Eastern Caribbean greater efficiencies. The Court could not ignore and endorsed that sentiment. As to prejudice, the applicant pointed the Court and reminded the Court that the allegations on which the substantive claim in the High Court are based are serious allegations to the extent that they relate to publications by which the appellant has allegedly made allegations of sexual misconduct by the applicant/respondent on the social media platform, Facebook. The Court agreed with the applicant that he was prejudiced by this fact to the extent that the delay in prosecuting the appeal has impacted on the progression of the substantive matter in the High Court with the effect that two years have elapsed since the filing of the claim and an additional two years since the allegations arose in 2019. To that extent the Court was satisfied that the applicant had been significantly prejudiced. On the part of the appellant/ respondent the Court saw no prejudice being occasioned to him. In relation to the prospects of success, the principles which guide the grant of a stay on the ground of forum non conveniens are well known and have been applied in several cases from this Court. It is well established that the remedies are discretionary and that a stay on the ground of forum non conveniens will only be granted where the court is satisfied that there is some other available forum having competent jurisdiction which is the appropriate forum for the trial of the action. In this context, appropriate means more suitable for the interest of all the parties and the ends of justice as enunciated in The Spiliada or Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. Having reviewed the master’s decision, the Court was satisfied that the appellant had not discharged his burden of establishing that a good prospect of success on appeal in respect of the judicial exercise of the master’s discretion had been made out. As a consequence, the Court was satisfied that the appellant’s appeal did not have good prospects of success. For all of the foregoing reasons the application to strike out the appeal was granted and the notice of appeal filed on 10th August 2023 was struck out. Case Name: Everton Elliot v Anselm Caines [SKBHCVAP2023/0004] (Saint Christopher and Nevis) Date: Friday, 21st June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Appellant: Mr. Leon Charles Respondent: Mr. Perry Joseph Issues: Civil appeal Type of Order: N/A Result / Order: IT IS HEREBY ORDERED THAT: The notice of appeal filed on 10th August 2023 is struck out. Reason: The Court granted the respondent’s application to strike out the appellant’s notice of appeal. The substantive appeal and application for extension of time to file skeleton arguments therefore fell away. Case Name: Nakita Rawlins v Linval Carey [SKBMCVAP2021/0007] (Saint Christopher and Nevis) Date: Friday, 21st June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Appellant: Mr. Jason Hamilton and Ms. Iasha Usher Oral Judgment Respondent: Ms. Pauline Hendrickson Issues: Magisterial civil appeal - Whether magistrate’s decision was based on wrong principles of law - Weight magistrate ascribed to evidence that the respondent took 5 days off due to injury - Whether the decision is unreasonable having regard to the evidence - Award of damages - Whether magistrate’s assessment and award of damages was excessive and unduly severe - Whether injury suffered warrants the award made - Aggravated Damages - Uplift of award for aggravated damages - Whether the award of damages for injury to feelings was mischaracterized as aggravated damages - Whether decision of magistrate should be set aside and award of damages reduced Type of Order: Result / Order: IT IS HEREBY ORDERED THAT:

1.The appeal against the decision of the magistrate dated 27th July 2021 is dismissed.

2.The respondent is entitled to the costs in the appeal in the sum of $1,500.00 to be paid by the appellant within 28 days. Reason: This was an appeal against the decision of the learned magistrate dated 27th July 2021 in which the magistrate awarded the sum of $12,000.00 including aggravated damages and $5,000.00 in costs for assault and battery of the respondent by the appellant. The essential question raised in the appeal was whether the magistrate erred in his assessment of damages and that he awarded a sum that was excessive in the circumstances. The appellant submitted that: there was no evidence that the respondent was prescribed painkillers for 5 days; the decision of the magistrate to award the sum of $12,000.00 including aggravated damages; deviated without good reason from the decisions he considered; that the learned magistrate erred in making a separate award for aggravated damages and the amount awarded was punitive rather than compensatory; and that the sum awarded by the magistrate was excessive and that the appropriate sum should be $5,000.00. In Martin Alphonso et al v Deodath Ramnath BVI Civil Appeal No. 0001 of 1996 (delivered 21st July 1997, unreported), this Court stated that: “In appeals comparable in nature to the present one, it must be recognised that the burden on the appellant who invites interference with an award of damages that has commended itself to the trial judge is indeed a heavy one. The assessment of those damages is peculiarly in the province of the judge. A court of appeal has not the advantage of seeing the witnesses, especially the injured person, a matter which is of grave importance in drawing conclusions as to the quantum of damages from the evidence that they give. If the judge had taken all the proper elements of damage into consideration and had awarded what he deemed to be fair and reasonable compensation under all the circumstances of the case, we ought not, unless under very exceptional circumstances, to disturb this award. The mere fact that the judge’s award is for a larger or smaller sum than we would have given, is not of itself a sufficient reason for disturbing the award.” The Court considered the written decision of the learned magistrate, the authorities cited by the learned magistrate and those submitted by the respondent, the submissions of the appellant and the respondent and the oral submissions before the court at the hearing. The Court was not persuaded that the appellant had shown that having regard to all of the circumstances of the case, the sum awarded by the magistrate was out of proportion to the loss sustained or that the damages awarded were out of proportion to the circumstances of the case. The appellant also had not shown that the magistrate misapprehended the facts, took irrelevant factors into consideration, applied the wrong principles of law, or applied the wrong measure of damages which made his award a wholly erroneous estimate of the damages suffered. The decisions of the Court of Appeal have stated time and time again that the award of damages is for the exercise of a trial judge’s judicial discretion and unless the Court can say that the judge’s award exceeded the generous ambit within which reasonable disagreement is possible and was therefore clearly and blatantly wrong, this Court would not interfere. The appellant submitted that the learned magistrate was wrong to make the award of damages to the respondent as inclusive of aggravated damages. The respondent submitted that the award was made because the learned magistrate found as a fact that the respondent suffered an injury to his feelings, disgrace and humiliation as the altercation took place at a fete. The Court of Appeal in England and Wales in Richardson v Howie [2004] EWCA Civ 1127 explained that a court should not characterise the award of damages for injury to feelings, including any indignity, mental suffering, distress, humiliation or anger and indignation that might be caused by such an attack as aggravated damages. The UK Court of Appeal also explained that a court should bring that element of compensatory damages for injured feelings into account as part of general damages. It seemed to this Court that while the learned magistrate mentioned an uplift for aggravated damages, it was clear that this uplift was meant to reflect what he considered to be injury to the feelings of the respondent and the indignity, disgrace and humiliation that the respondent suffered. This should properly be considered as part of the compensatory damages to be awarded to the respondent. Read this way, the learned magistrate did not err in making the global award or for referring to the uplift as this was part of the compensatory damages awarded to the respondent. His error was simply to mischaracterise the nature of the uplift. This mischaracterisation did not entitle this Court to interfere with the global award made by the learned magistrate. Based on the foregoing the appeal against the decision of the learned magistrate was dismissed.

THE EASTERN CARIBBEAN SUPREME COURT COURT OF APPEAL SITTING SAINT CHRISTOPHER AND NEVIS VIDEOCONFERENCE Monday 17th June – Friday 21 st June 2024 JUDGMENTS Case Name: [1 ] Notre Dame Investments Ltd

1.The appeal is dismissed.

2.The appellants to pay the respondents’ costs to the appeal to be assessed by a judge of the High court If not, agreed within 21 days of the date of the judgment. Reason: Held: dismissing the Appeal and ordering that the appellants pay the respondents costs to the Appeal to be assessed by a judge of the High Court if not agreed within 21 days of the date of This judgment, that:

[2]Angela Diala List v

[1]Rowntry Trading Ltd

[2]Paul List

[3]BCM International Ltd [NEVHCVAP2022/0009] ( Saint Christopher and Nevis ) Date: Wednesday, 19 th June 2024 Coram for delivery: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal Appearances: Appellants: Mr. Delano Bart KC with him Ms. Midge Morton Respondents: Ms. Jean Dyer Issues: Interlocutory Appeal – Interim injunction – Whether judge erred in refusing to grant appellants’ application for interim relief – Exercise of judicial discretion – Whether the judge’s ruling fell outside the generous ambit within which reasonable disagreement is possible – Whether judge conflated considerations for final and interim injunctions – Interim declarations – Whether judge incorrectly conflated the test for an interim injunction and an interim declaration which are two distinct interim reliefs – Whether judge arrived at a wrong conclusion as a result of conflating the two tests Result / Order: IT IS HEREBY ORDERED THAT:

1.An interim injunction is a remedy which is granted to regulate the position of the parties until their rights are determined at trial. This interim remedy has for the past 40 years been governed by the American Cyanamid test which has also been adopted by this Court in several cases. However, while the American Cyanamid test provides structure and sequence in determining whether to grant or refuse an interim injunction, it still remains guidance. The overarching principle that must be considered is whether it is just or convenient to grant the interim injunction. In this case, while it can be said that there is a serious case to be tried, it cannot be said that it was just or convenient to grant the interim injunction prayed for, especially when one considers the totality of the evidence. When one looks at the evidence, it is apparent that the evidence provided is lacking and would not persuade a court that an interim injunction should be granted. In the amended application there is no real identification of the acts or behaviours upon which an interim injunction can be granted. In the instances where acts or behaviours have been described, there is no cogent evidence provided to establish a nexus between the alleged acts and the risks faced if the interim injunction is refused. While the judge did not adequately set out the tests to be considered, this error by the learned judge does not make or result in the decision to refuse the amended application for an interim injunction being plainly or blatantly wrong so as to move this Court to interfere with the learned judge’s decision. CM Row Law of Injunctions 11th Edn, approved; American Cyanamid Co v Ethicon Limited [1975] AC 396 applied; National Commercial Bank Jamaica Ltd v Olint Corpn Ltd [2009] UKPC 16 applied; N.W.L Ltd v Woods [1979] 3 All ER 614 applied; Cambridge Nutrition Ltd v British Broadcasting Corp [1990] 3 All ER 523 applied; Villa Cornucopia Limited v Esther Developments Limited BVIHCVAP2023/0001 (delivered 8th December 2023, unreported) followed; Dufour and Others v Helenair Corporation Ltd and Others (1996) 52 WIR 188 followed; Nilon Limited and another v Royal Westminister Investments SA and others [2015] UKPC 2 followed.

2.Interim declarations are known as a fairly new power of the court. A court when hearing an application for an interim declaration should take into account the justice to the claimant; justice to the defendant; whether the declaration would serve a useful purpose; and whether there are any other special reasons why the court should or should not grant the declaration. However, as the rights of a party are by their nature permanent, courts have been cautious to declare rights on a temporary basis and appellate courts have generally disapproved of the making of declarations at an interim stage. Riverside Mental Health Trust NHS v Fox [1984] 1 FLR 614 considered; Bank St Petersburg v Arkhangelsky and another [2014] EWHC 574 (Ch) applied.

3.The interim declarations prayed for by the appellants also run into a similar challenge to the application for an interim injunction – there is no explanation as to the effect of the declarations on the parties. This goes to the heart of determining whether granting the interim declaration would serve a useful purpose. Both Mrs. List’s and Mr. Adongo’s positions in BCM are live issues at trial. If granted, the interim declaration that Mrs. List is a director of BCM would have the effect of pre-emptively determining one of the key issues in the trial, being, whether Mrs. List’s resignation was properly effected. Likewise, to declare Mr. Adongo secretary of BCM on an interim basis is to determine the circumstances surrounding his alleged displacement from BCM. At that stage, it was not appropriate for the learned judge to make such declarations. Therefore, while it is evident throughout the judge’s ruling that the learned judge at times failed to adequately make the distinction between interim injunctions and interim declarations, sometimes using these terms interchangeably and thus conflating their separate tests, like the error committed by the learned judge in relation to the tests for interim injunctions, this did not result in a decision that was plainly or blatantly wrong. Accordingly, the appeal is dismissed. Case Name: Dion Weekes v

[1]Providence Estate Limited

[2]Owen Rooney [MNIHCVAP2023/0007] (Montserrat) Heard together with: David Brandt v Owen Rooney [MNIHCVAP2023/0008] ( Montserrat ) Date: Thursday, 20 th June 2024 Coram for delivery: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Sylvester Carrott for Dion Weekes Mr. Sylvester Carrott holding papers for Dr. David Dorsett for David Brandt Respondents: Ms. Nadia Chiesa Issues: Civil appeal – Costs – Costs upon a discontinuance – Discretion to depart from the general rule on costs – Whether the learned judge erred in allowing the respondents to discontinue claims against the appellants with no order as to costs – Overriding objective – Whether the learned judge erred in failing to afford the parties the opportunity to be heard on the issue of costs following the discontinuance – Abuse of process – Locus standi – Whether the learned judge erred in finding that that the preliminary issue (which questioned the locus standi of Mr. Rooney to instruct PEL to bring the claims) amounted to an abuse of the court’s process – Ratification – Whether the learned judge failed to appreciate that integral to the argument concerning ratification was the issue of Mr. Rooney’s entitlement to direct PEL and the continuing non-compliance of PEL under the Companies Act Result / Order: IT IS HEREBY ORDERED THAT:

1.Appeal MNIHCVAP2023/0008 and Ground 6 of the Appeal in MNIHCVAP2023/0007 is allowed.

2.The costs order of the learned judge is set aside.

3.The issue of costs on the discontinuance is remitted for determination by a judge of the High Court other than the learned trial judge in both MNIHCVAP2023/0008 and MNIHCVAP2023/0007.

4.The remaining grounds of appeal in MNIHCVAP2023/0007 are dismissed.

5.The order pertaining to the locus standi of PEL is affirmed.

6.Mr. Brandt will have his costs of the appeal MNIHCVAP2023/0008, such costs to be assessed by a judge or master of the High Court if not agreed within 21 days.

7.There is no order as to costs in appeal MNIHCVAP2023/0007. Reason: A court clearly has discretion whether or not to order costs. There is however a general rule or presumption which applies where a claim is discontinued. Rule 37.6(1) of the CPR states that a claimant who discontinues a claim is liable for the costs incurred by the defendant against whom the claim is discontinued, on or before the date on which notice of discontinuance was served. Costs are to be quantified in accordance with the scale of prescribed costs in Part 65 of the CPR, Appendices B and C. The rationale for this presumption or general rule is that where a claimant commences proceedings, he/she takes on the risk of the litigation. If successful, a claimant can expect to recover their costs, but if unsuccessful or the claim is abandoned at whatever stage of the proceedings, it is normally unjust to allow the defendant to bear the costs of proceedings that were forced upon him and which the claimant is unwilling to carry through to judgment. Rule 37.6(1) of the Civil Procedure Rules 2000 applied; Brookes v HSBC Bank plc; Jemitus v Bank of Scotland plc [2011] EWCA Civ 354 applied; Maini v Maini [2009] EWHC 3036 (Ch) considered. The power to depart from the general rule is to be exercised applying the factors which would normally inform the general discretion in regard to costs. However, a judge who is minded to depart from the general rule should afford a defendant an opportunity to make representations. While the burden of displacing the general rule rests with the party who asserts that it should be displaced, whether the general rule should be displaced is determined by reference to the facts of the particular case and the factors which are prescribed in Part 64 of the CPR. Rule 1.2 obliges a court to seek to give effect to the overriding objective when it purports to exercise any discretion given to it by the rules. That overriding objective mandates that a court deal with cases justly. In this case, the undisputed version of events reveals that without any forewarning to the parties, the judge proceeded to deal with the Discontinuance Application at the conclusion of the delivery of his judgment on the preliminary issue. This would have come as a surprise to the parties and counsel, including counsel for Mr. Brandt who was not present, who were not given an opportunity to make submissions contrary to the principles of fairness and justice integrated into the overriding objective. The appellants should have had an opportunity to put before the judge the full spectrum of factors which should have been applied in departing from the general rule as it is clear that he either did not consider or gave little weight to the same, despite citing legal authorities which would have made it clear that he was obliged to do so. The fact that Mr. Rooney maintained his claims notwithstanding that they were obviously ill-founded as he had no legal interest in the subject matter of the claim is clearly a matter which ought to have been weighed. Accordingly, the learned judge’s discretion was not exercised judicially such that his order on costs on the discontinuance must be set aside and the question of be costs remitted to the High Court. Rule 1. 2 of the Civil Procedure Rules 2000 applied; Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235 applied; Gajadhar v Public Service Commission TT 2014 CA 3 applied. There can be no doubt that courts retain a general jurisdiction to control abuses arising out of proceedings that come before them. Often however, as it is in this appeal , the real question is the extent of that jurisdiction. The GoM parties did not join in the strike out application concerning the locus standi of PEL. At paragraph 63(b) of his judgment, the judge merely cited that fact, reinforcing that the objections regarding PEL’s standing ought to have been raised by the GoM parties much earlier than occurred. In the premises, it is arguable that the judge’s comment could ground a substantive finding of res judicata as it relates to the GoM. However, even if it could not, what is clear is that the GoM has not appealed that finding and it is difficult to discern the basis upon which Mr. Weekes would choose in his appeal to challenge observations made in respect of the GoM parties. This is especially so when in more critical findings, the judge disposed of the objections to PEL’s locus standi preventing any further argument on the issue and declaring that PEL has locus standi. Mr. Weekes did not (save for the question of ratification) address these findings and this part of his appeal must fail. Hunter v Chief Constable of the West Midlands Police [1982] AC 529 applied; Levi Maximea v The Chief of Police et al DOMHCVAP2020/0009 (delivered 7 th December 2023, unreported) followed. On the question of whether the learned judge failed to appreciate that integral to the argument concerning ratification was the issue of Mr. Rooney’s entitlement to direct PEL and the continuing non-compliance of PEL under the Companies Act, Mr. Weekes failed to demonstrate any real or substantial prejudice. The cause of action against him remains the same and it has not been made out that ratification would cause him any prejudice or embarrassment. Accordingly, this aspect of Mr. Weekes’ appeal must also fail. Bird v Brown (1850) 4 Exch 786 applied; Smith v Henniker-Major & Co [2002] EWCA Civ 762 distinguished. APPLICATIONS AND APPEALS Case Name: Regulator of International Banking v

[1]Petrodel Investment Advisers (Nevis) Ltd

[2]Michael J Prest

[3]Bank of Nevis International Limited [ NEVHCVAP2023/0008] ( Saint Christopher and Nevis) Date: Monday, 17 th June 2024 Coram: The Hon. Mr. Mario Michel, Chief Justice [Ag.] The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant/Respondent: Ms. Jean Dyer Respondent/Applicant: Ms. Kalisia Marks for the third respondent Issues: Application to strike out appeal – Delay – Whether the appellant’s delay in filing the record of appeal and skeleton arguments has prejudiced the third respondent – Abuse of process – Whether the appellant’s failure to request and/or secure the transcript amounts to an abuse of process – Whether the appeal should be struck out for want of prosecution Type of Order: Oral Decision Result / Order: IT IS HEREBY ORDERED THAT:

1.The application to strike out the appeal is dismissed.

2.Costs to the appellant/respondent, Regulator of International Banking, in the sum of $1500.00 to be paid by the third respondent, Bank of Nevis International Limited, within 21 days of the date of this order. Reason: By notice of appeal filed on 20 th March 2023, the appellant, Regulator of International Banking, appealed against the judgment of Thompson J delivered on 10 th February 2023. By notice of application filed on 20 th February 2024, the third respondent, Bank of Nevis International Limited, applied to this Court for an order that the appellant’s notice of appeal be struck out for want of prosecution. An affidavit in support of the notice of application was also filed on 20 th February 2024. A further affidavit in support of the notice of application to strike out the notice of appeal was filed on 26 th February 2024. In its application and submissions, the third respondent submitted that rule 62.14 of the Civil Procedure Rules (Revised Edition) 2023 provides that an appellant must file and serve its skeleton arguments within 52 days of receipt of the notice that the transcript is available. Rule 62.15 provides that the appellant must file the record of appeal within 21 days of receipt of the notice that the transcript is available. The appellant filed the record of appeal on 8 th September 2023. Five months elapsed from the date of the filing of the record of appeal to the date of the filing of the application to strike out the appeal. The appellant has still not filed its skeleton arguments. The third respondent contended that it considers itself prejudiced by the appellant’s inaction because by order dated 30 th May 2023, Webster JA granted a limited stay on the execution of the judgment of the trial judge which quashed the appellant’s decision and ordered restitution of sums paid by the third respondent to the appellant. The third respondent further contended that it continues to be deprived of its funds and the ability to carry on its business. In the affidavits filed by the third respondent, it was alleged that upon the filing of the notice of appeal, steps were to be taken by the appellant to secure the transcript of the proceedings in the High Court if the appellant intended to rely on it. The third respondent also alleged that it was unaware of any attempts made by the appellant to secure the transcripts in the filing of its notice of appeal 11 months prior. On 28 th February 2024, the appellant filed a notice of opposition to the strike out application in which it argued that (1) there has been no delay or inactivity on the appellant’s part as alleged or at all; and (2) the obligation to arrange for the preparation of the transcript of the proceedings in the court below is imposed by CPR 62.12(1) on the court below and not on the appellant as intimated in paragraph 4 of the affidavit of Stephen Agbeyegbe filed on behalf of the third respondent. The appellant further contended that the obligation to file skeleton arguments is yet to arise and it follows that there has been no delay such as to ground an application to strike out the notice of appeal for want of prosecution. On 31 st May 2024, the third respondent filed skeleton arguments in support of its application to strike out the notice of appeal. On 5 th June 2024, the appellant filed skeleton arguments in opposition to the application to strike out the notice of appeal for want of prosecution. The Court read the notice of appeal, the strike out application and the two affidavits in support, the notice of opposition to the strike out application, and the skeleton arguments in support of and in opposition to the application; heard briefly from counsel for both parties; and considered the judgment of this Court in Wycliffe Baird v David Goldgar et al SKBHCVAP2019/0038 (delivered 22nd December 2023, unreported) which was referred to by the third respondent, in which this Court struck out an appeal for want of prosecution and abuse of process. The Court noted that in Wycliffe Baird, the appellant was in possession of the transcript from April 2020 and had not, up to the hearing of the appeal 3 years later in April 2023, filed the record of appeal or skeleton arguments in support of his appeal, facts which are vastly different from those in the present appeal. This case therefore did not assist the third respondent. In light of these considerations, the Court concluded that the appeal ought not to be struck out and that the application to strike out the appeal should be dismissed. Case Name:

[1]Heritage Plantation Condominiums Ltd

[2]Heritage Plantation Inc

[3]Mervin Grant v Doche & Doche Inc [SKBHCVAP2024/0002] ( Saint Christopher and Nevis ) Date: Monday, 17 th June 2024 Coram: The Hon. Mr. Mario Michel, Chief Justice [Ag.] The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Applicant/Respondent: Mr. Anthony Astaphan SC with him Mr. Sylvester Anthony and Ms. Rénal Edwards Respondents/Appellants: Dr. Henry Browne KC Issues: Application to discharge, vary or revoke order of a single judge – Order granting stay of execution pending appeal – Principles to be considered in the grant of a stay of execution – Whether there was sufficient evidence before the the learned judge to determine that the appeal would be stifled or rendered nugatory if the stay was not granted – Whether the learned judge properly considered whether the appellants had good prospects of success on appeal – Whether the appellants have shown any prospects of success on appeal Type of Order: N/A Result / Order: IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Bank of Nevis International Trust Services Inc v Belmont Holdings SKN Limited [NEVHCVAP2023/0018] ( Saint Christopher and Nevis ) Date: Monday, 17 th June 2024 Coram: The Hon. Mr. Mario Michel, Chief Justice [Ag.] The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Michael Fay KC Respondent: Ms. Kurlyn Merchant Issues: Interlocutory appeal – Whether master erred in refusing claim for summary judgment – Whether issues in the matter were not highly complexed such that the master ought to have granted summary judgment – Whether respondent had a realistic prospect of succeeding in its defence to the appellant’s counterclaim – Presumption of resulting trust – Whether shares transferred by the appellant to respondent amounted to a resulting trust in the absence of the transfer being for a commercial reason or a gift – Whether issue of resulting trust is triable and unsuitable for summary judgment – Damages upon repudiatory breach – Whether the Joint Venture Facility Agreement was the subject of a repudiatory breach and entitles the respondent to damages – Entitlement to damages and return of consideration – Whether respondent entitled to both damages for repudiatory breach of contract and a return of the shares which constituted consideration – Entitlement to damages and rescission – Whether respondent entitled to both damages for repudiatory breach of contract and rescission of the contract Provision of information appeal – Whether it was appropriate for the learned master to have determined a CPR 34.2 application without hearing oral submissions – Whether learned master failed to properly apply test in CPR 34.2(2) and consider factors in CPR 34.2(3) – Whether learned master wrongly applied test of information being unduly onerous and unnecessary to be provided by respondent – Whether learned master erred by failing to give adequate reasons for dismissing application Costs – Whether costs order to the respondent for the summary judgment application should be set aside if the master’s decision is reversed Type of order: N/A Result/Order: IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Bank of Nevis International Limited v

[1]Sheila Hobbs

[2]Adam Hobbs [ NEVHCVAP2024/0002] ( Saint Christopher and Nevis) Date: Monday, 17 th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Applicant: Ms. Kalisia Marks Respondents: Ms. Kurlyn Merchant and Ms. Kayla Theeuwen Issues: Application for leave to appeal – Application for a stay of execution of the order of the learned judge – Summary judgment – Respondents’ application for summary judgment seeking among others return of the sums in their account (“the summary judgment application”) – Applicant’s application to restrain respondent’s counsel from acting on behalf of them (“the restraint application”) – Whether the judge erred in adjournming the summary judgment application and the restraint application, and ordering that the respondent pay the said sums to WeirFoulds LLP in an interest-bearing trust account at the Bank of Montreal in Toronto, Ontario, Canada in trust pending further order of the court – Whether the judge embarked upon an accelerated trial of the primary reliefs sought by the respondents – Whether the judge relied on the evidence filed in the summary judgment application in making the order – Whether the judge applied a legal standard akin to that of an evidentiary burden on trial – Whether the judge made certain oral findings which had the nature of precluding the applicant from obtaining a fair hearing of the summary judgment application – Whether the judge erred in failing to consider the applicant’s offer to set up an escrow account to hold these sums, and bear all associated costs, and in so doing, failed to adequately treat with the applicant’s objection that the respondents’ attorney was not an independent party to the proceedings Type of Order: Oral Decision Result / Order: IT IS HEREBY ORDERED THAT:

1.The application for leave to appeal is dismissed.

2.The stay of the proceedings granted by this Court on 23 rd April 2024 is discontinued.

3.The application for a stay of the hearing of the summary judgment application is refused. Reason: Upon reading the notice of application for leave to appeal against the decision of Thompson J dated 18th March 2024, filed on 21 st March 2024 along with the written submissions filed on 11 th April 2024, and having seen the notice of opposition filed by the respondent on 17 th April 2024, and having read and heard the oral submissions of the respondent filed on the said day with respect to the stay, the Court having considered Rule 62.2(8) of the Civil Procedure Rules (Revised Edition) 2023, which provides that leave to appeal may be given only when: (a) the Court considers that the appeal has a realistic prospect of success; or (b) there is some other compelling reason why the appeal should be heard, the Court was of the opinion that the application had not met that threshold for leave to appeal. The submissions of the applicant did not suggest any relevant matters that would allow the Court to be of the opinion that the appeal would have a realistic prospect of success. The Court having conducted a review of the transcript and the orders made by the learned trial judge, the Court was not satisfied that the learned trial judge embarked: (1) on an expedited trial of the issues before the court; (2) erred in adjourning the summary judgment application along with the other applications which were made before him; (3) having looked at the transcript and the order that the learned trial judge granted the primary relief sought in the proceedings; (4) on making an order for an “interim payment” pursuant to CPR 17.6 when he ordered that the relevant sums be paid to the account of the respondents’ solicitor with an undertaking by the solicitor that the funds would be preserved. The order made by the learned judge was an alternative to paying the sums into court, which is the normal and usual order based on one of the facts that the relevant sums were not readily available within the Federation of Saint Christopher and Nevis. The Court was of the view that the learned trial judge embarked on an exercise to properly case manage the matters before him pursuant to the powers given to the court under CPR 26. The Court found no fault in the procedure adopted by the learned trial judge in conducting that case management exercise. The Court therefore found that there was no realistic prospect of success nor was there any compelling reason why leave to appeal should be granted. The Court accordingly dismissed the application for leave to appeal. The Court discontinued the stay of the proceedings granted by this Court on 23 rd April 2024. The application for the stay of the summary judgment application before the trial judge was also refused. The Court was not of the view that: (1) the trial judge predetermined the matter; (2) that the trial judge closed his mind to an objective determination of the application. The Court was not of the view that 1. the trial judge pre-determined the issues based on the transcript where he indicated that he was open to hearing the parties on the adjourned date with respect to the application; and 2. with respect to the stay of proceedings granted by this Court, the Court was not of the view that even if leave to appeal was granted that the appeal would have been stifled in any way. At the end of the day, the solicitors for the respondents hold funds on trust and have given an undertaking to the court not to interfere with or dissipate those funds in any way. Case Name: Social Security Board v

[1]First Caribbean International Bank (Barbados) Limited

[2]Exclusive Retreats Limited [SKBHCVAP2022/0007] ( Saint Christopher and Nevis ) Date: Monday, 17 th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Applicant: Ms. Angelina Gracy Sookoo-Bobb with her Ms. Jeneice Carty Respondents: Mr. Damian Kelsick KC with him Hadya Dolphin for the 1 st respondent No appearance for the 2 nd respondent Issues: Civil appeal – Application for leave to appeal- Application for extension of time for leave to appeal – Reason for delay – Whether there was a good reason for the delay – Whether the intended appeal had a realistic prospect of success Type of Order: Oral Decision Result / Order: IT IS HEREBY ORDERED THAT:

1.The application for an extension of time for leave to appeal is granted.

2.Leave is granted to the appellant to appeal the judgment of the learned master delivered 9 th May 2022.

3.The notice of appeal filed on 25 th May 2022 is deemed properly filed. Reason: The appellant wished to appeal the judgment delivered by the learned master in this matter on 9 th May 2022. The appellant filed a notice of appeal dated 25 th May 2022 without having made an application for leave to appeal as required by rule 62.2(1) of the Civil Procedure Rules (Revised Edition) 2023. The appellant eventually filed an application for leave to appeal on 7 th June 2024 in which they sought an extension of time to file said notice and to deem the said notice of appeal filed on 25 th May 2022 properly filed. Rule 62.2(1) of the Civil Procedure Rules (Revised Edition) 2023 requires a party who applies for leave to appeal must do so within 21 days of the decision. Further CPR 62.2(8) provides that leave to appeal will only be granted when a.) the court considers that the appeal has a realistic prospect of success or b.) there is some other compelling reason why the appeal should be heard. In this case, as accepted by the appellant, there was an inordinate delay in filing the application for leave to appeal, a period of some 2 years. Additionally, the appellant agreed that there was no good reason provided to the Court for the inordinate delay. The Court having observed that the notice of appeal was filed on 25 th May 2022 and being of the view that there was no prejudice to the respondent and that the threshold of a realistic prospect of success has been met by the appellant, was minded to grant leave to appeal to the appellant. The Court therefore extended the time for filing the said application for leave to appeal to 7 th June 2024 and deemed the notice of appeal filed on 25 th May 2022 properly filed. The Court also noted for the record, its displeasure with the delay in the matter and that the reason proffered for such delay was no excuse whatsoever. Case Name: Social Security Board v

[1]First Caribbean International Bank (Barbados) Limited

[2]Exclusive Retreats Limited [SKBHCVAP2022/0007] ( Saint Christopher and Nevis ) Date: Monday, 17 th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Appellant: Mrs. Angelina Gracy Sookoo-Bobb with her Ms. Jeneice Carty Respondents: Mr. Damian Kelsick KC with him Ms. Hadya Dolphin for the 1 st respondent No appearance for the 2 nd respondent Issues: Civil Appeal – Whether the learned master erred in finding that the appellant did not provide any evidence that it had instituted civil proceedings against the 2nd respondent in relation to the debt claimed by the appellant – Whether the master erred in finding that the judgments had to be registered in the High Court – Whether the master failed to give due consideration to the Social Security Act Cap. 22.10 which prescribed the magistrate’s court as the appellant’s court of competent jurisdiction – Whether the master failed to give due consideration to the fact that by virtue of section 73 (now 75) of the income Tax Act Cap. 20.22 there was no need for a judgment to be registered in the High Court – Whether the master erred by finding that the word “property” as defined in the Income Tax Act does not include real property – Whether the master erred by concluding that section 3 of the Tax Administration and Procedures Act Cap. 20.52 must be read in conjunction with section 44 of the Social Security Act and sections 70 to 75 (now 72 to 77) of the Income Tax Act – Whether the master erred in finding that the sums owed by the 2nd respondent were taxes under the Tax Administration and Procedures Act and therefore, subject to section 30 of that Act, the appellant did not rank in priority over the 1st respondent – Whether the master failed to give due consideration to the effect of the 1st respondent’s bad faith in moving to settle the scheme of division without notice to the appellant and in breach of section 81 of the Title by Registration Act Cap. 10.19 – Whether the master failed to give due consideration the impact of the 1st respondent’s breach of section 73 (now 75) of the Income Tax Act on the application to settle the scheme of division Type of order: N/A Result/Order: IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Bank of Nevis International Limited v

[1]Nevis IP Holdings LLC

[2]St Kitts-Nevis Anguilla National Bank [ NEVHCVAP2022/0017] ( Saint Christopher and Nevis) Date: Tuesday, 18 th June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant/Respondent: Ms. Kalisia Marks 1st Respondent/Applicant: Ms. Edisha Greene 2nd respondent: No appearance Issues: Application to strike out notice of appeal for want of prosecution – Notice of appeal filed on 13th December 2022 – Stay of execution granted in appellant’s favour on 31st January 2023 – No further steps taken by the appellant to prosecute appeal since the grant of the stay – No objection filed by the appellant in response to the strike out application – Whether the notice of appeal ought to be struck out for want of prosecution Type of Order: Oral decision Result / Order: IT IS HEREBY ORDERED THAT:

1.The application to strike out the notice of appeal is granted.

2.The notice of appeal filed on 13 th December 2022 is struck out.

3.The stay of execution granted on 31 st January 2023 hereby falls away. The appellant shall pay the 1 st respondent’s costs of the application in the sum of $1,500.00 EC within 14 days of the date of this order. Reason: Before the Court was an application by the 1 st respondent (“the applicant”) to strike out the notice of appeal filed by the appellant on 13 th December 2022 challenging the order of Thompson Jr J dated 9 th December 2022 granting an attachment order in favour of the applicant in relation to funds standing to the appellant’s credit held in a bank account held with the 2 nd respondent. Subsequent to filing its appeal, the appellant sought and obtained an interim stay of execution of the said order of Thompson Jr J and this was granted by a single judge of this Court on 29 th December 2022. By order dated 31 st January 2023, the stay was extended pending the hearing and determination of the appeal. The applicant sought to strike out the appeal for want of prosecution for two reasons: (1) the appellant’s failure to file its skeleton arguments within the time prescribed by rule 62.11 of the Civil Procedure Rules 2000 (“CPR”) which requires an appellant to file its skeleton argument within 52 days of receipt of the notice issued by the High Court pursuant to CPR 62.12 notifying the parties of the availability of the transcript; and (2) that the appellant has failed to file the record of appeal and core bundle despite the availability of the transcript which was procured through the efforts of the applicant since June 2023. The affidavit in support of the application to strike averred that the applicant’s several efforts to reach out to the appellant between June and October 2023 produced no response from the appellant. Considering an application to strike, the Court must have in mind, as first base, the overriding objective of the CPR which is to enable the Court to deal with cases justly. The need to ensure that matters are dealt with expeditiously is one among a number of non-exhaustive factors listed in subsection 2 to which a Court must have regard. The principles which guide the Court when presented with an application to strike out a notice of appeal are well known and have been clearly articulated by this Court in several decisions, including Michael Baptiste v Yolande Bain-Joseph GDAHCVAP2006/026 (delivered 7 th February 2008, unreported) and First Domestic Insurance Company Ltd v Industrial Enterprises Ltd. et al DOMHCVAP2014/0024 (delivered 27 th May 2020, unreported ). In short, the aim is to do justice between the parties in furtherance of the overriding objective. Factors relevant to the attainment of that objective include the length of the delay, the reasons for the delay, the merits of the appeal and the prejudice to the litigants. The appeal should not be struck out where there is a satisfactory explanation for failure to file the record of appeal and skeleton arguments and the delay is neither intentional nor inordinate and has occasioned no prejudice to the respondent. In such a case, furthering the overriding objective might require the court to fashion a remedy that does justice as between the parties. With those principles in mind, the relevant considerations would be assessed. The length of the delay: The court office did not issue a notice pursuant to rule 62.12. The evidence was that the applicant, of its own initiative, procured the production of the transcript and notified the appellant of its availability and provided the appellant with a copy of it on or around 23 rd June 2023 and uploaded it to the E-litigation portal on 17 th October 2023. As this Court has held in Wycliffe Baird v David Goldgar et al SKBHCVAP2019/0038 (delivered 22 nd December 2023, unreported) the need for the court office to issue such a notice is otiose where a copy of the transcript is already in existence and is in possession of the parties. In this case, the transcript was made available to the appellant and had been uploaded to the portal. Accordingly, reckoning the delay from 23 rd June 2023, when the appellant was served with a copy of the transcript, until the application to strike out was filed, the period of delay is approximately 6 months. This period of delay is inordinate. The reasons for the delay: In this case the appellant has not engaged with the application at all, so obviously the question of assessing the reasonableness or otherwise of such reasons does not arise. There was simply no reason advanced for the delay, which amounts to no good reasons. Prospects of success of the appeal: On a consideration of the grounds of the appeal, it was apparent that the nub of the appellant’s complaint was that “Thompson Jr J’s exercise of his discretion on 9 th December 2022 in granting the attachment application was clearly or plainly wrong and is hence susceptible to the appeal herein”. It was said further that the judge erred in law and/or in fact in failing to give any or sufficient consideration to (1) the fact that the appellant had filed a suspicious activity report with the Financial Intelligence Unit; (2) the application by the appellant to adjourn the hearing to January 2023 to provide an opportunity for the FIU to form a view and indicate its position with respect to the suspicious activity report; and (3) gave too much weight to the fact that the suspicious activity report was only recently made. In essence, the appellant sought to challenge the exercise of the judge’s discretion in relation to each of these matters. The principles that inform an appellate Court’s interference with the exercise of a judge’s discretion were articulated by Sir Vincent Floissac CJ as he then was in Dufour and others v Helenair Corporation Ltd and others (1996) 52 WIR 188 . In summary, an appeal will not be allowed unless the appellate court is satisfied that in exercising his/her judicial discretion the judge erred in principle either by failing to take into account relevant factors and consideration or by taking into account or by being influenced by irrelevant factors and considerations and that as a result of the error or the degree of error, the trial judge’s decision exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong. Based on the grounds of appeal, the appellant faced an uphill task and the Court was not persuaded on what was before it that the appeal had a real prospect of succeeding. Prejudice: The applicant has undoubtedly been prejudiced and continued to be prejudiced, in that the appellant’s delay in prosecuting the appeal has meant that they have been kept out of funds because of a stay obtained by the appellant/ respondent. For all of the foregoing reasons, the application to strike out the notice of appeal was granted and the notice of appeal filed on 13 th December 2022 was struck out. The stay of execution granted on 31 st January 2023 thereby fell away. Case Name: Joleyne Jeffers v Seana Williams [SKBMCVAP2022/0001] ( Saint Christopher and Nevis ) Date: Tuesday, 18 th June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Applicant/Respondent: Ms. Renal Edwards Respondent/Appellant: In person Issues: Application to strike out appeal for failure to enter into a recognizance or give security – Application to withdraw appeal – Costs Type of Order: Oral Decision Result / Order: IT IS HEREBY ORDERED THAT:

1.Leave is granted to withdraw the appeal which stands dismissed.

2.The respondent/appellant shall pay costs to the applicant in the sum of $600.00 within 21 days of the date of this order. Reason: Upon the matter coming on for hearing for the appeal to be struck out and upon the appellant/respondent indicating that she sought leave to withdraw the appeal, the Court granted leave to withdraw the appeal which effectively dismissed the appeal. Case Name: Beaumont Park Limited v Technology Development and Investments Ltd [SKBHCVAP2020/0018] ( Saint Christopher and Nevis ) Date: Tuesday, 18 th June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Damian Kelsick KC with him Ms. Hadya Dolphin and Ms. Chanté Francis Respondent: Ms. Jean M. Dyer Issues: Civil appeal – Compromise and settlement agreement – Repayment of sums advanced – Whether the learned judge’s decision should be upheld because it cannot be said to be manifestly wrong – Whether the settlement agreement covered the sums advanced that were due and owing by the respondent and as such were not recoverable – Whether the learned judge erred in finding that the appellant’s claim is barred by virtue of clauses 17 to 19 of the settlement agreement – Whether the learned judge erred in holding that the loan arose in the respondent’s capacity as a shareholder because it was used to discharge its obligations under the shareholder agreement – Whether the respondent must repay the sums advanced to it by the appellant as they were used to discharge the respondent’s obligation under the shareholder agreement – Whether derivative claims were within the contemplation of the parties in the context of the settlement agreement – Whether the learned judge erred in his decision by conflating the claim against the respondent for the repayment of sums advanced with the claim against Mr. Kryuchkov and/or the respondent in relation to fiduciary duties Type of order: N/A Result/Order: [Oral Delivery] IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Shonnia Kavelle Darway- Brookes v Nassibou Butler [SKBMCVAP2023/0005] ( Saint Christopher and Nevis ) Date: Wednesday, 19 th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal Appearances: Applicant/Respondent: Ms. Indira Butler Respondent/Appellant: Ms. Derriann Charles and Ms. Christiane Prowell Issues: Application to strike out appeal – Jurisdiction of magistrate to review decision – Whether it was open to the learned magistrate to review his decision outside of the time frame stipulated by statute – Section 151 of the Magistrate Code of Procedure Act Type of Order: Oral Decision Result/Order: IT IS HEREBY ORDERED THAT:

1.The application to strike out the notice of appeal filed on 6 th July 2023 is granted.

2.The respondent/appellant to pay costs to the applicant/respondent in the sum of $1,500.00. Reason: The applicant/ respondent applied by way of amended notice of application filed on 27 th May 2024 to strike out the notice of appeal filed by the respondent/appellant on 6 th July 2023. The respondent/appellant’s application both written and oral before the learned magistrate dated 21 st June 2023 were not made within 1 month of the learned magistrate’s original decision dated 16 th November 2022 contrary to section 151 of the Magistrate’s Code of Procedure Act, Cap 3.17 of the Laws of St.Kitts and Nevis. Consequently, any decision made by the magistrate on 21 st June 2023 was made without jurisdiction and therefore any ruling made by the magistrate pursuant to the application made by the respondent/appellant on 21 st June 2023 was null, void and of no effect. Therefore, the Court granted the application to strike out the notice of appeal filed on 6 th July 2023 with costs to the applicant/ respondent. Case Name: Vanita Henry v

[1]The Superintendent of Public Works (now styled The Director of Public Works also as Surveyor of Roads)

[2]The Attorney General of St. Kitts and Nevis [ SKBHCVAP2018/0024] ( Saint Christopher and Nevis) Date: Wednesday, 19 th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal Appearances: Appellant: Ms. Chauntelle Hobson Respondents: Mr. Christopher Forde Issues: Civil Appeal – Breach of statutory duty – Negligence – Section 7 of the Roads Act Cap 15.05 – Whether there was a statutory duty imposed on the first respondent to keep the roadway and the verge in question in a proper state of repair and whether there was a breach of that duty – Whether the alleged breach gave rise to a private cause of action – Whether there existed a separate cause of action in the tort of negligence, in the event that the alleged breach of the statutory duty did not give rise to a private cause of action – Whether the common law rule exempting public authorities from liability for nonfeasance operated to preclude the respondents from incurring liability in the tort of negligence Type of Order: N/A Result / Order: [Oral Delivery] IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Bank of Nevis International Limited v Ocean Consulting Services Ltd [SKBHCVAP2024/0001] ( Saint Christopher and Nevis ) Date: Wednesday, 19 th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal Appearances: Appellant: Ms. Kalisia Marks Respondent: Mr. Benjamin Drakes and Ms. Joia Reece Mr. Chris Miseresky and Mr. David Collins as interested parties Issues: Interlocutory Appeal – Appointment of Receiver – Whether judge erred by granting an order for the appointment of receivers on an application that was argued before and considered by another judge – Whether the judge erred in law by denying the appellant an opportunity to be heard on the application for the appointment of the receiver prior to making her order – Absence of transcript of proceedings Type of Order: Adjournment Result / Order: IT IS HEREBY ORDERED THAT:

1.The transcript of proceedings of 15th December 2023 be provided to the Court within two months of the date of this order.

2.The matter is adjourned to a date to be fixed by the Chief Registrar. Reason: After hearing counsel for the appellant, the Court decided that the transcript of proceedings of 15th December 2023 would be needed in order to make a final determination in the matter. Accordingly, the Court made an order for the production of the transcript and adjourned the hearing of the substantive appeal to a date to be fixed by the Chief Registrar. Case Name: Bank of Nevis International Limited v ZNX LTD [NEVHCVAP2024/0010] ( Saint Christopher and Nevis ) Date: Thursday, 20 th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Applicant: Ms. Kalisia Marks Respondent: Ms. Kurlyn Merchant Issues: Application for stay of execution – Whether the appeal has a realistic prospect of success – Whether the appeal will be stifled or rendered nugatory if a stay is not granted – Whether the prejudice to the applicant if a stay is not granted will outweigh any prejudice to the respondent if a stay is granted Type of Order: Oral Decision Result/Order: IT IS HEREBY ORDERED THAT:

1.The notice of appeal and submissions, having already been ordered to be filed and served on or before 28 th June 2024, shall be filed along with all the other documents required to be filed as set out in CPR 62.13(1).

2.The respondent is to file its submissions within 14 days of service of the notice of appeal, along with the other documents as specified in CPR 62.13(5).

3.The appeal is set down for hearing on paper by consent on an expedited basis for hearing by the Full Court on a date to be set by the Chief Registrar.

4.The interim stay granted by Ward JA on 7 th June 2024 shall continue until the hearing and disposal of the appeal.

5.Costs in the application shall be costs in the appeal. Reason: The applicant filed a notice of application for a stay of execution on 4 th June 2024, requesting a stay of the order of Thompson J dismissing its application to amend its defence. An interim stay was granted by Ward JA on 7 th June 2024. The Court, having considered both the oral and written submissions of the parties, the interests of justice, and the principles to be applied on the grant of a stay as set out in the well-known case of C-Mobile Services Limited v Huawei Technologies Co. Limited (delivered 2nd October 2014, unreported ), found that the stay of execution ought to be granted. The Court further ordered that the substantive appeal be heard on an expedited basis, and the parties agreed to have said appeal heard on the papers. Case Name: St. Kitts Nevis Anguilla Trading and Development Company Limited v Jennifer Archibald [ SKBHCVAP2022/0003] ( Saint Christopher and Nevis) Date: Thursday, 20 th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Damian Kelsick KC with him Ms. Hadya Dolphin Respondent: Mr. Leon Charles Issues: Civil Appeal – Personal Injury – Whether trial judge erred in finding that the respondent’s fibromyalgia was caused by a fall on the appellant’s premises – Expert reports – Whether expert reports should have been considered by the judge as they were disclosed but were not entered into evidence – Causal link- Whether there was no epidemiologic or statistical evidence to support any of the statements by any of the experts/ the injury suffered – Whether the trial judge erred in his assessment of damages for the fibromyalgia injury – Counter Notice of Appeal – Award of special damages- Loss of future earnings – Whether judge erred in calculating the respondent’s loss of future pension payments by using a multiplier of 5 – Loss of earnings – Whether the judge erred in making an award for loss of income up to the date of the appellant’s retirement and not up to the date of the trial Type of Order: N/A Result / Order: IT IS HEREBY ORDERED THAT: Judgment is reserved. Case Name: Kevin A. Horstwood v Adam Bilzerian [SKBHCVAP2023/0005] ( Saint Christopher and Nevis ) Date: Thursday, 20th June 2024 Coram: The Hon. Mde. Margaret Price Findlay, Justice of Appeal The Hon. Mde. Vicki Ann Ellis, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mrs. Michelle Slack-Clarke Respondent: Ms. Christiane Prowell with Ms. Derriann Charles Issues: Interlocutory Appeal – CPR 19.2(5)(b) – Exercise of discretion – The Court’s discretion to order the substitution of a new party for an existing one – Whether the Learned Judge erred in the exercise of her discretion pursuant to CPR 19.2(5) by granting the Order to substitute International Investments Limited for the Claimant – Whether the learned Judge erred when she made an order substituting a new party for an existing one without any evidence being presented to the Court to substantiate the Claimant’s assertion that its interest had passed to the new party – Whether the learned Judge further erred in granting an order that the Claimant had satisfied CPR 19.2(5) when the Claimant presented no evidence from which the Court could properly conclude that it could resolve the matters in dispute more effectively by substituting the new party for the existing party – Whether the Learned Judge erred in law in making an order for the Appellant to pay the Claimant’s costs on its substitution application when the application was the Claimant’s application for an amendment of its statement of case Type of Order: Oral Judgment Result / Order: IT IS HEREBY ORDERED THAT:

1.The appeal is allowed.

2.The order made by the learned judge on the 23 rd of June 2023 is set aside in its entirety.

3.The appellant shall have his costs in the appeal to be assessed if not agreed within 21 days of the date of this order.

4.The appellant shall have its costs of the application in the court below in the sum of $1,500.00. Reason: Before the Court was a notice of interlocutory appeal filed on 14 th March 2024 by the appellant Kevin Horstwood. By this notice of appeal in respect of which leave to appeal was granted on 27 th February 2024 the appellant appealed against the decision and order of the learned judge delivered on 23 rd June 2023. By that decision and order the learned judge granted the application of the respondent Adam Bilzerian to have the company International Investment Ltd., a limited liability company incorporated under the laws of Saint Cristopher and Nevis to be substituted in place and instead of the said Adam Bilzerian in the proceedings below and made an order that the appellant shall pay the applicant’s costs of that application in the sum of EC $1,500.00 on or before 21 st July 2023. The appellant appealed against both orders. The matter came before the learned judge below by an application that was filed on 18 th May 2023 which was supported by the affidavit of the respondent filed on 19 th May 2023. Exhibited to that affidavit was a document headed “notice of consent” dated 18 th May 2023 by which the company International Investment Ltd. consented to be substituted in place and instead of Adam Bilzerian as the claimant in the proceedings below. The grounds of the application were set out in the application itself made pursuant to Civil Procedure Rules (Revised) 2023 (“CPR”) 19.2 (5). It was also stated that pursuant to CPR 19.3 (4) the written consent of the substituted claimant must be filed and that the claimant in this matter has assigned all his interest and liabilities to International Investment Ltd. The application was opposed by the appellant who filed an affidavit on 9 th June 2023 in the proceedings below by which the appellant relied on 4 grounds set out in the affidavit. The matter came before the master on 23 rd June 2023 and, as disclosed by the transcript of the proceedings below, after hearing argument from counsel on both sides, the master indicated that she would grant the order and then proceeded to treat with the terms of the order itself. The Court considered page 168 of the transcript. The grounds of appeal were set out in the appellant’s notice of appeal with a central ground of appeal being that the applicant did not put before the learned master a proper or sufficient evidential basis upon which the substitution order ought to be made or could be made, and secondly in relation to the costs order, that in relation to that kind of application the learned judge erred in making an order for costs against the appellant, it being the respondent’s application in relation to a matter of the respondent’s own making. The Court considered the written and oral submissions made by learned counsel on both sides and was satisfied that the learned master erred in making the substitution order. In particular, the learned master did not seem to treat with the various points of opposition advanced by the appellant to the application. More particularly the Court upheld the ground of opposition that the evidence produced was insufficient for the making of such order in that the transfer of the interests of Adam Bilzerian to the company had not been exhibited or put before the court for the court to scrutinize particularly as to whether that instrument, if it existed, pertained to the matters in issue in the proceedings below, and whether effectively there was a transfer of the interests and liabilities of Adam Bilzerian to the company. The Court agreed with the appellant’s submission that the document being the foundational document on which the substitution application rests, ought to have been produced in evidence for the learned master to scrutinize and absent that document, it was not a proper exercise of the master’s powers and discretion to make an order for substitution. In that respect the Court determined that learned master erred and that error was an error of principle which was sufficient to set aside the said order. The Court also considered the submissions in relation to the costs order and was of the view that the costs order was made on a wrong principle. However, on the outcome of the appeal, it was inevitable that the costs order would be set aside. Accordingly, the Court ordered that the order made by the learned master on the 23 rd of June 2023 is set aside in its entirety with costs to be paid to the appellant on assessment. Case Name: Everton Elliot v Anselm Caines [SKBHCVAP2023/0004] ( Saint Christopher and Nevis ) Date: Friday, 21 st June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Appellant/Respondent: Mr. Leon Charles Respondent/Applicant: Mr. Perry Joseph Issues: Application to strike out appeal – Whether appeal should be struck out for abuse of process and for want of prosecution – Delay in filing written submissions – Rule 62.13(1) of the Civil Procedure Rules (Revised Edition) 2023 – Rule 25.3(1)(a) of the Civil Procedure Rules (Revised Edition) 2023 – Failure to comply with a rule, practice direction, order or direction given by the Court in the proceedings- Length of delay – Whether the respondent’s 9 months delay in filing and serving written submissions was excessive and inordinate – Reasons for delay- Whether the respondent advanced a good explanation for the delay – Prejudice – Whether the delay amounts to prejudice to the applicant as applicant’s defamation claim has been pending in the High Court for some 2 years- Merits of the appeal – Whether the appellant’s appeal has good prospects of success Type of Order: Oral Decision Result/Order: IT IS HEREBY ORDERED THAT:

1.The application to strike out the notice of appeal is granted.

2.The notice of appeal filed on 10 th August 2023 is struck out.

3.The appellant shall pay to the respondent’s costs of the application in the sum of $2,500.00 to be paid within 28 days of the date of this order.

4.The substantive matter in the High Court is to proceed hereafter in accordance with the Civil Procedure Rules. Reason: Before the Court was an application filed on 8 th April 2024 by the respondent, who is the applicant, with supporting affidavit to strike out the notice of appeal filed by the appellant on 10 th August 2023 challenging the decision of Master Pariagsingh delivered on 12 th June 2023, arising from applications by the appellant on the one hand, to strike out a libel claim and disputing the jurisdiction of the court to try the claim and by the respondent on the other hand, to transfer the proceedings to Nevis Circuit from the Saint Kitts circuit. The applicant’s application to strike out the appeal is made pursuant to CPR rules 62.13(1) and 25.3(1)(a) on the grounds that the tardy filing of the appellant’s skeleton argument is an abuse of process and/or should be dismissed for want of prosecution and/or on the further ground that it is likely to obstruct the just disposal of the proceedings. The affidavit in support of the application to strike averred inter alia that the applicant’s several efforts to reach out to the appellant between June and October 2023 produced no response from the appellant with a view to advancing the appeal and further pointed to discussions held congenially between the parties initially in October and subsequently in February 2024 to agreed timelines. The absence of sound reasons for the delayed filings was another point taken by the appellant as well as what he described as prejudice to the respondent by reason that the substantive claim and the appeal proceedings have been stymied respectively over periods of two years and nine months. The appellant conceded that his application for an extension of time to file skeleton arguments and the filing of the skeleton arguments came late however he insisted that the delay in filing of the skeleton arguments was not inordinate. In considering an application to strike, the Court must have in mind the overriding objective of the Civil Procedure Rules which is to enable the court to deal with cases justly. The need to ensure that matters are dealt with expeditiously is among a number of non-exhaustive factors listed in the Civil Procedure Rules rule 1.1 to which a court must have regard. Further, the principles which guide this Court when considering an application to strike out a notice of appeal are well established and have been rehearsed in a number of cases including in Michael Baptiste v Yoland Bain-Joseph GDAHCVAP2006/0026 (delivered 7 th February 2008, unreported) and First Domestic Insurance Co. Ltd. v Industrial Enterprises Ltd. et al DOMHCVAP2014/0024 (delivered 27 th May 2020, unreported). The objective is to seek to do justice between the parties in the furtherance of the overriding objective. The Court must consider all of the circumstances and in particular four factors namely: the length of the delay, the reasons for the delay, the merits of the appeal and the prejudice to the parties. Bearing those principles in mind, those factors were then considered. The Court noted that the appeal in this matter was filed on 10 th August 2023, the appellant having obtained leave to appeal. The Court noted further that an application for stay was refused on 31 st October 2023. The applicant had made an application for an extension of time to file its defence which was adjourned pending the determination of the appeal by order dated 29 th September 2023. The Court noted further that while there was no stay, proceedings in the lower court have effectively been stayed with respect to the filing of the defence. It was a matter of record that the notice of appeal for this Court of Appeal hearing was issued in March 2024. The appellant thereafter on 21 st May 2024 finally filed his skeleton arguments and made an application belatedly on 27 th May 2024 for an extension of time to file those skeleton arguments and for those skeleton arguments to be deemed properly filed. With respect to the length of delay, arithmetically, nine months had elapsed between the filing of the notice of appeal in August 2023 and the filing of the skeleton arguments on 21 st May 2024. The Court in the leading decision of Byron CJ in The Barbuda Council v Attorney General et al Civil Appeal No. 12 of 1994 opined that in that case 8 months was inordinate and excessive. In this case, the Court considered that the 9 months which elapsed between the filing of the notice of appeal and the filing of the skeleton arguments was also excessive and inordinate. In relation to the reasons for the delay, the appellant attributed the delay largely to the conduct of his legal practitioner in relation to the period of 10 th August to the end of August. He indicated that his legal practitioner was away on vacation when the skeleton arguments should properly have been filed. Further, that between the period leading up to October 2023 and some period in February 2024, the parties were engaged in a series of discussions which resulted in the agreement of certain timelines by which they were to file their respective skeleton arguments. Further, the appellant indicated or asserted in his affidavit in opposition to this application, that his legal practitioner was unavoidably unable to complete filing of skeleton arguments in time for the February agreed timelines due to a family emergency occasioned by illness and thereafter by competing professional priorities and a combination of those factors militated against the filing within that period. The Court was not convinced that those reasons provided a good explanation for the delayed filings and would not satisfy the requirements of the Civil Procedure Rules and the precedents the Court alluded to. The Court bore in mind the dictum of Saunders JA in Francis v Saint Kitts and Nevis Finance Company Limited Civil Appeal No. 21 of 2003 where he opined that the court has to be careful not to set precedents which may have the effect of diluting the efficacy and intention of the Civil Procedure Rules which is to create and bring to the administration of justice in the Eastern Caribbean greater efficiencies. The Court could not ignore and endorsed that sentiment. As to prejudice, the applicant pointed the Court and reminded the Court that the allegations on which the substantive claim in the High Court are based are serious allegations to the extent that they relate to publications by which the appellant has allegedly made allegations of sexual misconduct by the applicant/respondent on the social media platform, Facebook. The Court agreed with the applicant that he was prejudiced by this fact to the extent that the delay in prosecuting the appeal has impacted on the progression of the substantive matter in the High Court with the effect that two years have elapsed since the filing of the claim and an additional two years since the allegations arose in 2019. To that extent the Court was satisfied that the applicant had been significantly prejudiced. On the part of the appellant/ respondent the Court saw no prejudice being occasioned to him. In relation to the prospects of success, the principles which guide the grant of a stay on the ground of forum non conveniens are well known and have been applied in several cases from this Court. It is well established that the remedies are discretionary and that a stay on the ground of forum non conveniens will only be granted where the court is satisfied that there is some other available forum having competent jurisdiction which is the appropriate forum for the trial of the action. In this context, appropriate means more suitable for the interest of all the parties and the ends of justice as enunciated in T he Spiliada or Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. Having reviewed the master’s decision, the Court was satisfied that the appellant had not discharged his burden of establishing that a good prospect of success on appeal in respect of the judicial exercise of the master’s discretion had been made out. As a consequence, the Court was satisfied that the appellant’s appeal did not have good prospects of success. For all of the foregoing reasons the application to strike out the appeal was granted and the notice of appeal filed on 10 th August 2023 was struck out. Case Name: Everton Elliot v Anselm Caines [ SKBHCVAP2023/0004] ( Saint Christopher and Nevis) Date: Friday, 21 st June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Appellant: Mr. Leon Charles Respondent: Mr. Perry Joseph Issues: Civil appeal Type of Order: N/A Result / Order: IT IS HEREBY ORDERED THAT: The notice of appeal filed on 10 th August 2023 is struck out. Reason: The Court granted the respondent’s application to strike out the appellant’s notice of appeal. The substantive appeal and application for extension of time to file skeleton arguments therefore fell away. Case Name: Nakita Rawlins v Linval Carey [SKBMCVAP2021/0007] ( Saint Christopher and Nevis ) Date: Friday, 21 st June 2024 Coram: The Hon. Mr. Trevor Ward, Justice of Appeal The Hon. Mr. Eddy Ventose, Justice of Appeal The Hon. Mde. Esco Henry, Justice of Appeal Appearances: Appellant: Mr. Jason Hamilton and Ms. Iasha Usher Respondent: Ms. Pauline Hendrickson Issues: Magisterial civil appeal – Whether magistrate’s decision was based on wrong principles of law – Weight magistrate ascribed to evidence that the respondent took 5 days off due to injury – Whether the decision is unreasonable having regard to the evidence – Award of damages – Whether magistrate’s assessment and award of damages was excessive and unduly severe – Whether injury suffered warrants the award made – Aggravated Damages – Uplift of award for aggravated damages – Whether the award of damages for injury to feelings was mischaracterized as aggravated damages – Whether decision of magistrate should be set aside and award of damages reduced Type of Order: Oral Judgment Result / Order: IT IS HEREBY ORDERED THAT:

1.The appeal against the decision of the magistrate dated 27th July 2021 is dismissed.

2.The respondent is entitled to the costs in the appeal in the sum of $1,500.00 to be paid by the appellant within 28 days. Reason: This was an appeal against the decision of the learned magistrate dated 27th July 2021 in which the magistrate awarded the sum of $12,000.00 including aggravated damages and $5,000.00 in costs for assault and battery of the respondent by the appellant. The essential question raised in the appeal was whether the magistrate erred in his assessment of damages and that he awarded a sum that was excessive in the circumstances. The appellant submitted that: there was no evidence that the respondent was prescribed painkillers for 5 days; the decision of the magistrate to award the sum of $12,000.00 including aggravated damages; deviated without good reason from the decisions he considered; that the learned magistrate erred in making a separate award for aggravated damages and the amount awarded was punitive rather than compensatory; and that the sum awarded by the magistrate was excessive and that the appropriate sum should be $5,000.00. In Martin Alphonso et al v Deodath Ramnath BVI Civil Appeal No. 0001 of 1996 (delivered 21 st July 1997, unreported) , this Court stated that: “In appeals comparable in nature to the present one, it must be recognised that the burden on the appellant who invites interference with an award of damages that has commended itself to the trial judge is indeed a heavy one. The assessment of those damages is peculiarly in the province of the judge. A court of appeal has not the advantage of seeing the witnesses, especially the injured person, a matter which is of grave importance in drawing conclusions as to the quantum of damages from the evidence that they give. If the judge had taken all the proper elements of damage into consideration and had awarded what he deemed to be fair and reasonable compensation under all the circumstances of the case, we ought not, unless under very exceptional circumstances, to disturb this award. The mere fact that the judge’s award is for a larger or smaller sum than we would have given, is not of itself a sufficient reason for disturbing the award.” The Court considered the written decision of the learned magistrate, the authorities cited by the learned magistrate and those submitted by the respondent, the submissions of the appellant and the respondent and the oral submissions before the court at the hearing. The Court was not persuaded that the appellant had shown that having regard to all of the circumstances of the case, the sum awarded by the magistrate was out of proportion to the loss sustained or that the damages awarded were out of proportion to the circumstances of the case. The appellant also had not shown that the magistrate misapprehended the facts, took irrelevant factors into consideration, applied the wrong principles of law, or applied the wrong measure of damages which made his award a wholly erroneous estimate of the damages suffered. The decisions of the Court of Appeal have stated time and time again that the award of damages is for the exercise of a trial judge’s judicial discretion and unless the Court can say that the judge’s award exceeded the generous ambit within which reasonable disagreement is possible and was therefore clearly and blatantly wrong, this Court would not interfere. The appellant submitted that the learned magistrate was wrong to make the award of damages to the respondent as inclusive of aggravated damages. The respondent submitted that the award was made because the learned magistrate found as a fact that the respondent suffered an injury to his feelings, disgrace and humiliation as the altercation took place at a fete. The Court of Appeal in England and Wales in Richardson v Howie [2004] EWCA Civ 1127 explained that a court should not characterise the award of damages for injury to feelings, including any indignity, mental suffering, distress, humiliation or anger and indignation that might be caused by such an attack as aggravated damages. The UK Court of Appeal also explained that a court should bring that element of compensatory damages for injured feelings into account as part of general damages. It seemed to this Court that while the learned magistrate mentioned an uplift for aggravated damages, it was clear that this uplift was meant to reflect what he considered to be injury to the feelings of the respondent and the indignity, disgrace and humiliation that the respondent suffered. This should properly be considered as part of the compensatory damages to be awarded to the respondent. Read this way, the learned magistrate did not err in making the global award or for referring to the uplift as this was part of the compensatory damages awarded to the respondent. His error was simply to mischaracterise the nature of the uplift. This mischaracterisation did not entitle this Court to interfere with the global award made by the learned magistrate. Based on the foregoing the appeal against the decision of the learned magistrate was dismissed.