Court of Appeal Sitting – 26th to 30th October 2020

EASTERN CARIBBEAN SUPREME COURT COURT OF APPEAL SITTING ST. KITTS AND NEVIS th – 30 th October 2020 JUDGMENT Case Name: STANFORD INTERNATIONAL BANK LIMITED (IN LIQUIDATION) (ACTING BY AND THROUGH ITS JOINT LIQUIDATORS, MARCUS A. WIDE AND HUGH DICKSON) Appellant/Respondent v PROSKAUER ROSE LLP First Respondent/Counter-Appellant THOMAS V. SJOBLOM Second Respondent ANUHCVAP2018/0011 Date: 29th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Malcom Arthurs and Ms. Nicolette Doherty Respondents: Dr. David Dorsett for First Respondent Issues: Civil appeal – Interlocutory appeal – Service out of jurisdiction – Whether learned judge erred in granting application to set aside the order to serve out of the jurisdiction – Rules 7.3(3)(a) and 7.3(4) of the Civil Procedure Rules 2000 – Whether learned judge erred in concluding that appellant satisfied contract and tort gateways to standard of a good arguable case – Whether appellant had a good cause of action and consequently a serious issue to be tried on merits – Whether learned judge erred in concluding that Antigua was not the appropriate forum for trial of the claims Type of Order Result / Order: Held: allowing the counter-appeal, dismissing the appeal, awarding cost to the respondent on the appeal and on the cross appeal to be assessed by a master or judge of the High Court unless otherwise agreed within 21 days which shall be no more than two thirds of the costs in the High Court, that; It is settled law that in order to obtain leave to serve outside of the jurisdiction, three prerequisites must be satisfied. The applicant must establish that there is a serious issue to be tried on the merits of the claim, there is a good arguable case against each of the foreign defendants which falls within the relevant jurisdictional gateway in the CPR, and that the local court is clearly or distinctly the appropriate forum in which to resolve the issues between the parties. In so far as it relates to the standard of proof for the application of the relevant jurisdictional gateway, the applicant is required to establish that there is a good arguable case for its application, with a plausible evidential basis showing that it has the better argument. Nilon Limited and Another v Royal Westminster Investments SA and Others [2015] UKPC 2 applied; Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80 applied; Goldman Sachs International v Novo Banco SA [2018] UKSC 34 applied. In respect of the contract and tort gateways on which SIB relied to ground their application for leave to serve out of Antigua, it is clear that the pleaded claim form and statement of claim together with the evidence adduced by SIB failed to substantiate its claim that there was a breach of contract of the Proskauer Retainer committed in Antigua. At the very least, SIB was required to establish that some part of the contract should be performed in Antigua and there was a breach of that part. Similarly, the extent of the evidence adduced by SIB failed to demonstrate that there was any tort committed in Antigua or that damage was sustained within the jurisdiction flowing from the commission of that tort. The fiduciary claims, being contingent on the claims in contract or tort, also fail. In this regard, having considered the evidence adduced by both Proskauer and SIB, it is evident that SIB failed to prove that it has the better of the arguments in relation to the jurisdictional gateways. Accordingly, there was no basis on which the learned judge could have reasonably concluded that SIB had a good arguable case in relation to the jurisdictional gateways and consequently, the fiduciary claims. Rules 7.3(3)(a) and 7.3(4) of the Civil Procedure Rules 2000 applied; Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80 applied; Goldman Sachs International v Novo Banco SA [2018] UKSC 34 applied; Seaconsar Far East Ltd v Markazi Jomhouri Islami Iran [1994] 1 AC 438 applied; Altimo Holdings and Investments Limited and Others v Kyrgyz Mobil Tel Ltd and Others [2011] UKPC 7 applied. Having failed to show that there is a good arguable case for the application of the relevant jurisdictional gateways, it therefore follows that SIB would have no reasonable prospect of success in establishing that there was a breach of contract committed in Antigua or that any substantial acts causing damage were committed by Mr. Sjoblom in Antigua or that significant damage resulting therefrom was sustained in Antigua. Accordingly, the learned judge erred in concluding that there was a serious issue to be tried on the merits. Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80 applied. Consequently, the set aside order should have been granted on the alternative basis that SIB had failed to satisfy the jurisdictional gateways to the standard of a good arguable case and to establish that there was a serious issue to be tried on the merits. This effectively disposes of the appeal and cross appeal. Case Name: St. Kitts Marriott Resort v Deborah Stevens SKBMCVAP2016/0001 Date: th October 2020 Coram: The Hon. Dame. Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Garth Wilkin Respondent: Ms. Natasha Grey Issues: Civil Appeal – Employment Law – Wrongful dismissal – Whether magistrate erred in finding that appellant wrongfully dismissed respondent – Appellate court’s interference with findings of fact by a lower court – Section 5(2) of the Protection of Employment Act – Reliance on past conduct to justify summary dismissal – Notice of termination – Reasonable notice of termination – Whether in circumstances magistrate erred in finding that respondent was entitled to reasonable notice of termination – Whether common law right of wrongful dismissal abrogated by passage of Protection of Employment Act – Whether magistrate erred in assessment of respondent’s income – Section 152 of the Magistrate’s Code of Procedure Act – Whether magistrate erred in costs order Type of Order Judgment Result / Order: Held: dismissing the appeal, affirming the orders made by the Magistrate and awarding costs of the appeal of $3,333.00 to the respondent, that: 1. The law on the approach to be taken by an appellate court when reviewing the findings of fact by a lower court is well settled. An appellate court is generally reluctant to interfere with the findings of fact by a lower court since that court had the opportunity of seeing and hearing the witnesses give their evidence and to assess their demeanor and credibility. To succeed an appellant must satisfy this Court that either the lower court erred in principle in considering the evidence, or that the lower court did not take proper advantage of having seen and heard the witnesses, or that its findings on the evidence were plainly wrong. Applying these principles, it is clear that there is no basis for this Court to interfere with the Magistrate’s findings that Ms. Stevens was not involved in the activities of Ms. Weekes in handing over food and beverages to her relatives, and that Ms. Stevens’ conduct in allowing her supervisor to use her micros card was not in the circumstances a sufficiently serious breach of the Hotel’s policies and procedures to justify summary dismissal. These are straightforward findings of fact by the Magistrate that she was entitled to make based on her assessment of the evidence before her. Watt (or Thomas) v Thomas [1947] 1 All ER 582 applied; Yates Associates Construction Company Ltd v Blue Sand Investments Limited BVIHCVAP2012/0028 (delivered 20th April 2016, unreported applied; Henry v Mount Gay Distilleries Limited (Barbados) [1999] UKPC 39 applied; Ingrid Brantford-Hughes v Golden Years Home for the Elderly MNILTAP2019/0002 (delivered 26th May 2020, unreported) applied. 2. Section 5(2) of the Act provides that where an employer is relying on past conduct to justify summary dismissal the conduct must have occurred within six months of the dismissal and the employee must have been warned of the consequences of repeating the misconduct. The alleged historical misconduct in this case took place well in excess of six months before the dismissal and should not be considered in assessing whether the dismissal in July 2014 was proper. The historical misconduct should be regarded only as background in the context of the reasons for dismissal. Section 5(2) of the Protection of Employment Act Cap. 18.27, Revised Laws of Saint Christopher and Nevis, 2017; Ingrid Brantford-Hughes v Golden Years Home for the Elderly MNILTAP2019/0002 (delivered 26th May 2020, unreported) applied. 3. The Act introduced into the Federation of Saint Christopher and Nevis the right for an employer or employee to bring a statutory claim for breaches of the Act and related matters. It is a matter of interpretation whether the Act abrogated the existing common law right not to be wrongfully dismissed. The general rule is that a statute should not be construed so as to abolish or restrict a common-law right or remedy in the absence of unequivocal language or necessary implication. There is nothing in the Act that suggests that the common law action for wrongful dismissal, which includes the requirement to give reasonable notice, was abrogated by the passage of the Act in 1986, or by the repeal of the proviso to section 3 of the Act in 2014. The common law action for wrongful dismissal continues to exist in Saint Christopher and Nevis. An employee like Ms. Stevens who was summarily dismissed therefore retains the right to bring a common law action for wrongful dismissal and, if successful, is entitled to damages based on reasonable notice of termination. The Magistrate was correct in awarding damages to Ms. Stevens calculated by reference to the common law principle of reasonable notice. Further, the Magistrate was also correct in finding that based on Ms. Stevens’ term of employment with the Hotel, her age and the fact that she has not been able to find a job for over a year, she was entitled to damages based on three month’s salary. Burrill and another v Schrader and another (1995) 50 WIR 193 applied; R (Rottman) v Commissioner of Police for the Metropolis [2002] UKHL 20 considered; Alicia Sardine-Browne v RBTT Bank SVGHCV2006/0520 (delivered 13th July 2015, unreported); Section 7 of the Protection of Employment Act Cap. 18.27, Revised Laws of Saint Christopher and Nevis, 2017 considered; Section 3 of the Protection of Employment Act Cap. 18.27, Revised Laws of Saint Christopher and Nevis, 2017 considered; Section 56 of the Protection of Employment Act Cap. 18.27, Revised Laws of Saint Christopher and Nevis, 2017 considered; Section 35 of the Protection of Employment Act No. 20 of 2003, Laws of Saint Vincent and the Grenadines considered. 4. It was open to the Hotel, which would have had the complete records of Ms. Stevens’ employment, to adduce evidence to refute Ms. Stevens’ evidence. However, this was not done. Taking this into account the Court finds that the Magistrate did not err in accepting Ms. Stevens’ evidence about her earnings and the Magistrate should not be criticised for accepting the evidence that Ms. Stevens made $2,964.80 per month. 5. The Magistrate has a discretion under section 152 of the Magistrate’s Code of Procedure Act to award reasonable costs up to $10,000.00. The Magistrate exercised her discretion properly by awarding costs in the amount that she did to the successful party. This appears to be a reasonable amount for a heavily contested trial in the lower court and there is no basis for this Court to interfere with the exercise of the Magistrate’s discretion. Section 152 of the Magistrate’s Code of Procedure Act Cap. 3.17, Revised Laws of Saint Christopher and Nevis, 2009 applied. Reason: The appellant sought to make an application for an extension of time to file his appeal. The court noted however that there appeared to be no record before the court and the last order dated 17 th March 2020, indicated that the court office was having difficulty obtaining the notes of evidence for preparing a minute of conviction and sentence. The registrar of the high court indicated that they had found the tapes of the trial and would need to get them transcribed in Saint Lucia. The court was accordingly minded to adjourn the matter to the next sitting of the court for the State of St. Kitts and Nevis commencing 22nd March 2021. APPLICATIONS Case Name: Sean Kelly v Clement Kelly SKBMCVAP2019/0007 Date: 26th October 2020 Coram: The Hon. Dame Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard Farara , Justice of Appeal [Ag.] Appearances: Applicant: No appearance from counsel Mr. Hesketh Benjamin Respondent: Ms. Deidre Williams Issues: Application to strike out notice of appeal Type of Order Oral decision Result / Order: Oral Delivery: IT IS HEREBY ORDERED THAT: The appeal herein having been discontinued by the appellant, by a notice of discontinuance filed 6th October 2020 the same is hereby discontinued with costs to the respondent agreed in the sum of $1,500.00 to be paid no later than 6th November 2020. Reason: Counsel for the respondent indicated that the parties had reached an agreement that the appellant would pay costs to respondent in sum of $1500 by end of today. She requested that same could be reflected in an order of the Court. The Court considered whether there should be more time given to the appellant and proposed that they have until 6th November 2020 for payment of the costs, the respondent did not object. Case Name: Keith Herbert v The Queen SKBHCRAP2018/0005 Date: 26th October, 2020 Coram: The Hon. Dame Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard Farara , Justice of Appeal [Ag.] Appearances: Applicant: Appellant appeared in person, unrepresented Respondent: Ms. Lanein Blanchette Issues: Application for extension of time to appeal Type of Order Adjournment Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: The application is adjourned to next sitting of the Court of Appeal in the Federation of Saint Christopher and Nevis scheduled for the week commencing 22nd March 2021. Reason: The appellant sought to make an application for an extension of time to file his appeal. The court noted however that there appeared to be no record before the court and the last order dated 17th March 2020, indicated that the court office was having difficulty obtaining the notes of evidence for preparing a minute of conviction and sentence. The registrar of the high court indicated that they had found the tapes of the trial and would need to get them transcribed in Saint Lucia. The court was accordingly minded to adjourn the matter to the next sitting of the court for the State of St. Kitts and Nevis commencing 22nd March 2021. Case Name: St. Kitts-Nevis-Anguilla National Bank Limited v 1. The Estate of Peter Procope 2. Gail Flemming 3. AG of Saint Christopher and Nevis SKBHCVAP2020/0010 Date: th October 2020 Coram: The Hon. Dame Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard Farara , Justice of Appeal [Ag.] Appearances: Applicant: Mr. Garth Wilkin and Ms. Natika Rawlins (internal counsel Respondents: No appearance on behalf of the first respondent Mr. Sylvester Anthony, Mrs. Angela Gracie Sookoo-Bobb and Ms. Renal Edwards for second respondent Mrs. Nisharma Rattan-Mack for third respondent Issues: Application for an extension of time to file a notice of appeal –– Application for permission intervene in appeal –– Application for a stay Type of Order Directions Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: 1. The Court will delist this application and counsel can request a relisting when certain aspects of this matter are put in place or counsel has taken such steps as he considers fit. 2. Costs to be paid by the applicant to second respondent, Gail Flemming fixed in the sum of $750.00 to be paid by 6th November 2020. Reason: The Court noted that the application was one which required service but there was no personal representative appointed for the first respondent. Neither was there an appeal on foot in respect of any of the parties in the proceedings below. The Court noted that the applications being pursued may have an adverse impact on the first respondent and was therefore of the view that the matter could not proceed in its current state. Case Name: America 2030 Capital Limited v 1. Sunpower Business Group PTE Limited 2. Tournan Trading PTE Limited 3. Guo Hong Xing 4. Ma Ming SKBHCVAP2020/0016 Date: th October, 2020 Coram: The Hon. Dame Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard Farara , Justice of Appeal [Ag.] Appearances: Applicant: Ms. Angela Cozier Respondent: Mr. Nicholas Peacock, Ms. Elizabeth Harper and Ms. Michelle Slack Issues: Application to discharge order of single judge –– application for an extension of time –– application for a stay –– whether the court had power to restrain an arbitration –– whether there was a good reason for failing to file leave to appeal within time. Type of Order Oral Decision Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: The Court will deliver its decision in this matter on 30 th October 2020. Reason: This matter was heard together with SKBHCVAP2020/0015. The applicants sought the discharge of the orders of Blenman JA made on 28 th July 2020. The applicant posited that whereas the applicant made applications for leave to appeal albeit a day out of time that those applications ought not to have been refused;, and the learned judge should have set those matters for hearing before the full court or set matters right under CPR 26.9. The court indicated that there being no application for an extension of time within which to seek leave before the judge when she made the order, she had no discretion to refer the matter to the full court. The applicant conceded this point and moved on to make submissions on the application for an extension of time for leave to appeal. The applicant submitted that there was a real prospect of success in the proposed appeals as the court does not have power to grant anti-arbitration injunctions when there is an express arbitration clause. The applicant submitted that the court has no authority to restrain an arbitration but instead it should allow the arbitration to continue and then can determine if it was properly done. They further argued that the fixed date claim brought by the respondents should not have been brought as there was an agreement to arbitrate. The respondents argued that while it was suggested that the Court had no jurisdiction because of the arbitration clause it could properly exercise the power that it undoubtedly has as a supervisory court. They further submitted that there was no good reason advanced to justify an extension of time, the proposed appeals having little or no prospect of success and no basis upon which application for stay may be made. Case Name: 1. America 2030 Capital Limited 2. Mark Simon Bentley (aka) Val Sklarov v 1. Sunpower Business Group PTE Limited 2. Tournan Trading PTE Limited SKBHCVAP2020/0015 Date: th October 2020 Coram: The Hon. Dame Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard Farara QC, Justice of Appeal [Ag.] Appearances: Applicants: Ms. Angela Cozier Respondents: Mr. Nicholas Peacock, Ms. Elizabeth Harper and Ms. Michelle Slack Issues: Application to discharge order of single judge –– application for an extension of time –– application for a stay –– whether the court had power to restrain an arbitration –– whether there was a good reason for failing to file the appeal within time Type of Order Oral Decision Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: The Court will deliver its decision in this matter on 30 th October 2020. Reason: This matter was heard together with Appeal Number SKBHCVAP2020/0016. APPEALS Case Name: Sandy Nisbett V The Director of Public Prosecutions SKBHCRAP2012/0014 Date: 26th October 2020 Coram: The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Dr. Henry Brown QC appearing with Mr. O’Grenville Brown Appellant was present Respondent: Mr. Teshaun Vasquez, Crown Counsel Issues: Criminal appeal – Mental health evaluation Type of Order Adjournment Result / Order: Oral Delivery: IT IS HEREBY ORDERED BY CONSENT THAT: 1. The appellant Sandy Nisbett is to be assessed by a psychiatrist on or before the 31st of January 2021. 2. The hearing of the appeal is adjourned to the next sitting of the Court of Appeal for the Federation of St. Christopher and Nevis during the week commencing 22nd March 2021. Reason: Dr. Henry Brown QC indicated to the court that the appellant, Sandy Nisbett, was sentenced to life imprisonment. However, upon a review of the record, it appeared to him that the appellant has serious mental issues. These issues have necessitated the appellant being seen by a psychologist and a psychiatrist. Dr. Brown QC further informed the court that the last psychiatric report was 2 years ago and it was agreed between the parties that an up-to-date psychiatrist report would be procured so they and the Court could get a more current appreciation of his mental status. Dr. Browne QC therefore requested an adjournment to the next sitting of the Court of Appeal in St. Kitts and Nevis at which time he anticipates that the up-to-date psychiatric report would be ready. Mr. Vasquez agreed that the parties had discussed the circumstances as indicated by Dr. Brown QC and had agreed to that course of conduct. The Court noted that the last psychiatric report was 2 years ago and that it would be instructive to have a more updated report on the record. Case Name: Otis French v Dujon Bassue trading as High Tech Solutions SKBMCVAP2018/0019 Date: 26th October 2020 Coram: The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. John Orestes Cato Appellant was not present Respondent: Mr. Jason Hamilton Issues: Magisterial civil appeal – Recovery of debt Type of Order Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: 1. Hearing of the appeal is adjourned to the next sitting of the Court of Appeal for the Federation of St. Christopher and Nevis during the week commencing 22nd March 2021 2. The appellant is to be served personally with respect to the dates of the adjourned hearing. Reason: Mr. Cato, though appearing on record for the appellant, indicated that he had no instructions on the appeal. He outlined that the appellant had informed him that he was arrested on a warrant for the same matter, paid thousands of dollars, was released from custody and therefore had no further interest in the matter and no instructions to give. Mr. Hamilton informed the court that he was unaware of any of Mr. Cato’s assertions. He outlined that he had filed the necessary submissions and was in the hands of the court. The Court took note that the appellant was not served personally with notice of the date of the hearing of the appeal. Case Name: William DeGrass v Rory Flett SKBMCVAP2018/0015 Date: 26th October 2020 Coram: The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. John Orestes Cato Respondent: Ms. Marsha Henderson Respondent present Issues: Magisterial civil appeal –– Breach of contract –– Type of Order Oral Judgment Result / Order: Oral Judgment IT IS HEREBY ORDERED THAT: 1. The appeal is allowed only to the extent of varying the amount of the judgment from $24,670.77 to $21,912.26 and the costs from $2,000.00 to $1,500.00. 2. Costs of the appeal to the appellant of $500.00. Reason: In August 2016 the respondent engaged the services of the appellant, a mechanic, to repair his damaged motor vehicle. The respondent purchased the parts for carrying out the repairs and delivered the vehicle, the parts and a deposit of $4,000.00 to the appellant. The appellant failed to carry out the repairs or to return the vehicle parts deposit to the respondent. In February 2018 the respondent filed a claim in the magistrates court for $21,892.70, comprising: Value of vehicle $15,000 Cost of parts provided $6692.70 Cost and service of the demand letter $200.00 There was no appearance by the appellant when the case was called in the Magistrate’s Court on 18 April 2018. The appellant was called three times by police officer Lesroy Bartlett. There was no response by the appellant and officer Bartlett confirmed this in sworn oral evidence. The learned magistrate had regard to the sworn evidence endorsed on the reverse side of the Summons to Appear that the appellant was personally served with the summons on 20 March 2018 for appearance in court on 18 April 2018. The learned magistrate stated in his Reasons for Decision that: “It was proved to the satisfaction of the court by his sworn affidavit sworn on 28 March 2018 that the summons was duly served on the defendant on 20 March 2018. The defendant was called by court orderly No 701 Lesroy Bartlett on the 18th and 25th April 2018. The defendant failed to appear on both occasions.” Having satisfied himself that the defendant/appellant was properly served, the magistrate commenced the trial of the claim by taking evidence of the respondent. Before the respondent’s evidence was completed the learned magistrate adjourned the trial to 25 April 2018. The defendant was not served with a notice of the adjourned trial to 25 April 2018 and he did not appear on that date. The magistrate proceeded to complete the trial and entered judgment for the claimant for the increased amount of $24,676.77, which is $2,770.07 more than the amount in the claim as filed. Ms. Marsha Henderson who appeared for the respondent confirmed that the increased amount was not based on an application for an amendment of the claim but was done by the magistrate based on his calculation of the amount that had been proved. The appellant appealed against the magistrate’s decision. The two issues that arose for consideration by the Court were: (i) whether the learned magistrate erred in proceeding ex parte on the 18 April 2018, and continuing the trial on 20 April 2018 without the appellant being notified of the adjourned date; and (ii) whether the Magistrate erred in awarding a sum greater than the amount in the claim. The Court was satisfied that the learned magistrate was correct in finding that the appellant was served with the summons to appear on 18 April 2018 and that he had jurisdiction to proceed with the matter ex parte. They found that it is trite that a defendant who has been served runs the risk that if he or she does not appear at the time and place mentioned in the action may proceed ex parte. They were also satisfied that there is no legal requirement for the court or the respondent to serve the appellant with a notice of the adjournment of the trial to the 25 April 2018. The court was of the view that neither the court nor the Claimant was under an obligation to issue and serve notices to the absent party to attend the further hearings of the claim. It is entirely a matter of discretion whether the magistrate, on a case-by-case basis, issues such a notice and there was no basis for interfering with the magistrate not doing so in this case. The obligation was on the defendant/appellant to appear in court when summoned and to follow the progress of the claim in court. The court therefore found that the Magistrate had jurisdiction to commence the trial ex parte on 18 April 2018 and to continue and complete the matter on 25 April 2018. The award The record did not disclose how or why the magistrate awarded an amount greater than the amount claimed in the Particulars of Claim. The Court was advised by Ms. Henderson that the learned magistrate did so of his own motion based on the evidence in the case. The court was not of the view that that approach was the correct one, especially in the case where the defendant was not present in court. The magistrate should have set out in the record his reason for increasing the amount claimed and the details of how he arrived at the new amount. Accordingly, the court set aside the increase in the amount of the claim. Case Name: Denver Fyfield v The Director of Public Prosecutions SKBHCRAP2015/0009 Date: 27th October 2020 Coram: The Hon. Dame Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Dr. Henry Browne, QC with Mr. O’Grenville Browne Respondent: Ms. Greatess Gordon Issues: Criminal appeal against conviction and sentence Type of Order Adjournment Result / Order: Oral Delivery: IT IS HEREBY ORDERED THAT: The hearing of this matter, at the request of counsel for the prosecution, advising of the illness of the Director of Public Prosecutions, is adjourned to the next sitting of the Court for the Federation of St. Kitts and Nevis which is scheduled to commence the week of 22nd March 2021. Reason: The court was informed that the learned Director of Public Prosecutions, Mr. Valston Graham, was suddenly ill and unable to attend. The respondent therefore requested an adjournment as Mr. Graham had full conduct of the matter and Ms. Gordon was not in position to defend the matter as she did not have records or submissions before her, nor had she had an opportunity to familiarize herself with the matter. APPLICATIONS Case Name: Adam Bilzerian v 1. Zachary Getz 2. St. Christopher Club Condominiums 3. St. Christopher Club Condominiums Homeowners Association SKBHCVAP2019/0029 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Applicant: Mr. Victor Elliot-Hamilton Respondents: Ms. Miselle O’Brien for first and third respondent Ms. Jessica Rodgers appeared as a lay representative for the third respondent Issues: Application for leave to admit fresh evidence Type of Order Oral Decision Result / Order: Oral Delivery: IT IS HEREBY ORDERED THAT: Insofar as the respondents have filed a notice of withdrawal of opposition, the application to adduce fresh evidence is granted. Reason: The court noted that a notice of withdrawal of the opposition to the application filed by the first and third respondents on 27th July 2020. APPEALS Case Name: 1. Gregory Gilpin Payne 2. International Investments and Consulting Ltd v 1. Stephen First 2. Corporate Capital (Asia) Ltd. SKBHCVAP2019/0028 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellants: Mr. Victor Elliot-Hamilton Mr. Paul Bilzerian director of the second appellant was present Respondents: Ms. Vanessa Fennel holding a watching brief for the first respondent Issues: Civil interlocutory appeal –– Refusal of recusal application –– Test for apparent bias –– Whether there was apparent bias on the part of the trial judge –– Whether errors made by learned judge showed a closing of his mind to the appellants –– Whether Mr. Paul Bilzerian had a right to audience before trial judge –– Rights of audience under a power of attorney ­–– Whether Mr. Paul Bilzerian had a right of audience in his capacity as director of a company and in accordance with Civil Procedure Rules 2000 –– Scope of rights of a McKenzie Friend Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: Adam Bilzerian v 1. Zachary Getz 2. St. Christopher Club Condominiums 3. St. Christopher Club Condominiums Homeowners Association SKBHCVAP2019/0029 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Victor Elliot-Hamilton Respondents: Ms. Miselle O’Brien for first and third respondent Ms. Jessica Rodgers appeared as a lay representative for the third respondent Issues: Civil interlocutory appeal –– Refusal of recusal application –– Test for apparent bias –– Whether there was apparent bias on the part of the trial judge –– Whether errors made by learned judge showed a closing of his mind to the appellant –– Whether Mr. Paul Bilzerian had a right to audience before trial judge –– Rights of audience under a power of attorney ­–– Whether Mr. Paul Bilzerian had a right of audience in his capacity as director of a company and in accordance with Civil Procedure Rules 2000 –– Scope of rights of a McKenzie Friend Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: Adam Bilzerian v Kevin Horstwood SKBHCVAP2019/0030 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Victor Elliot-Hamilton Mr. Paul Bilzerian appeared as attorney-in-fact Respondent: Mr. Terrence Byron Issues: Civil interlocutory appeal –– Refusal of recusal application –– Test for apparent bias –– Whether there was apparent bias on the part of the trial judge –– Whether errors made by learned judge showed a closing of his mind to the appellant –– Whether Mr. Paul Bilzerian had a right to audience before trial judge –– Rights of audience under a power of attorney ­–– Whether Mr. Paul Bilzerian had a right of audience in his capacity as director of a company and in accordance with Civil Procedure Rules 2000 –– Scope of rights of a McKenzie Friend Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: 1. Keyapaha International Ltd. 2. Dan Bilzerian et al v 1. Laura Getz 2. Robert Getz 3. Victor Doche 4. Vistas International, LLC SKBHCVAP2019/0031 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellants: Mr. Victor Elliot-Hamilton Mr. Paul Bilzerian appeared as director for first appellant and as attorney in fact for the second appellant Respondent: Ms. Angelina Gracie Sookoo-Bobb holding a watching brief for the third respondent Mr. Rafik Doche appeared as a representative for the third respondent Issues: Civil interlocutory appeal –– Refusal of recusal application –– Test for apparent bias –– Whether there was apparent bias on the part of the trial judge –– Whether errors made by learned judge showed a closing of his mind to the appellants –– Whether Mr. Paul Bilzerian a right to audience before trial judge –– Rights of audience under a power of attorney ­–– Whether Mr. Paul Bilzerian had a right of audience in his capacity as director of a company and in accordance with Civil Procedure Rules 2000 –– Scope of rights of a McKenzie Friend Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: 1. Adam Bilzerian 2. Lemon Grove Company Limited 3. Caribbean Building System (St. Kitts) Ltd. v 1. Terrence V. Byron 2. Byron & Byron 3. Kevin Horstwood SKBHCVAP2019/0032 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellants: Mr. Victor Elliot-Hamilton Mr. Paul Bilzerian appeared as director of the second and third appellants and as attorney in fact for first appellant Respondents: Mr. Terrence Byron as litigant in person and as counsel for the second and third respondents Issues: Civil interlocutory appeal –– Refusal of recusal application –– Test for apparent bias –– Whether there was apparent bias on the part of the trial judge –– Whether errors made by learned judge showed a closing of his mind to the appellants –– Whether Mr. Paul Bilzerian had a right to audience before trial judge –– Rights of audience under a power of attorney ­–– Whether Mr. Paul Bilzerian had a right of audience in his capacity as director of a company and in accordance with Civil Procedure Rules 2000 –– Scope of rights of a McKenzie Friend Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: Adam Bilzerian v 1. Gerald Lou Weiner 2. Kathleen Weiner SKBHCVAP2019/0033 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Victor Elliot Hamilton Mr. Paul Bilzerian appeared as the attorney-in-fact Respondents: Ms. Jean Dyer Issues: Civil interlocutory appeal –– Refusal of recusal application –– Test for apparent bias –– Whether there was apparent bias on the part of the trial judge –– Whether errors made by learned judge showed a closing of his mind to the appellants –– Whether Mr. Paul Bilzerian had a right to audience before trial judge –– Rights of audience under a power of attorney ­–– Whether Mr. Paul Bilzerian had a right of audience in his capacity as director of a company and in accordance with Civil Procedure Rules 2000 –– Scope of rights of a McKenzie Friend Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: Adam Bilzerian v 1. Gerald Lou Weiner 2. Kathleen Weiner SKBHCVAP2019/0040 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Victor Elliot-Hamilton Mr. Paul Bilzerian appeared as the attorney-in-fact Respondent: Ms. Jean Dyer holding a watching brief for the respondents Issues: Bias –– Whether there was apparent bias on the part of the trial judge Test for apparent bias –– Whether there was apparent bias on the part of the trial judge –– Whether errors made by learned judge showed a closing of his mind to the appellants –– Natural justice –– Whether the appellant’s right to a hearing was violated Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: 1. Gregory Gilpin-Payne 2. International Investments & Consulting Ltd. v 1. Stephen First 2. Corporate Capital (Asia) Ltd SKBHCVAP2019/0044 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellants: Mr. Victor Elliot-Hamilton for appellants Mr. Paul Bilzerian appeared as director of the 2nd respondent Respondents: Ms. Vanessa Fennell Issues: Power of a trial judge to change order before it is perfected –– Whether the learned judge wrongly exercised discretion not to change an order –– Right of a party to represent themselves in court –– Right of an authorized officer to represent a company in court –– Whether Mr. Paul Bilzerian had a right of audience in his capacity as director of a company and in accordance with Civil Procedure Rules 2000 –– Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: 1. Adam Bilzerian 2. Lemon Grove Company Limited 3. Caribbean Building System (St. Kitts) Ltd. v 1. Terrence V. Byron 2. Byron & Byron 3. Kevin Horstwood SKBHCVAP2020/0003 Date: 27th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellants: Mr. Victor Elliot-Hamilton Mr. Paul Bilzerian as director for the second and third appellants and as attorney in fact for the first appellant Respondent: Mr. Terrence Byron as litigant in person and the second and third respondents Issues: Right of a party to represent themselves –– Right of an authorized officer to represent a company –– Whether Mr. Paul Bilzerian had a right of audience in his capacity as director of a company and in accordance with Civil Procedure Rules 2000 –– Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: 1. Heritage Plantation Inc. 2. Mervin Grant v 1. Heritage Plantation Condominiums Ltd. 2. Doche & Doche Inc. Date: th October 2020 Coram: The Hon. Mr. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Applicants: Dr. Henry Brown QC with Mr. O’Grenville Brown for the appellants The second appellant was present Respondents: Mr. Sylvester Anthony with Ms. Angelina Gracie Sookoo-Bobb instructed by Ms. Renal Edwards Mr. Rafik Doche and Mr. Victor Doche appeared as representatives of the respondents Issues: Civil appeal –– Unfair prejudice –– Whether the learned judge erred in concluding that the respondents had not breached the agreements –– whether the learned judge erred in dismissing the applicants’ unfair prejudice claim –– Whether the learned judge erred in dismissing the applicants’ mortgage claim Type of Order Judgment reserved Result / Order: Oral Delivery: IT IS HEREBY ORDERED THAT: Judgment is reserved APPLICATION Case Name: St. Kitts Nevis Anguilla National Bank Limited v Pinneys Hotel Development Limited SKBHCVAP2020/0014 Date: th October 2020 Coram: The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Gerard Farara QC, Justice of Appeal [Ag.] The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Applicant: Mr. Damien Kelsick appearing with Ms. Dannie Maynard Respondent: Ms. Angela Cozier Issues: Application to vary order of single judge Type of Order Oral decision Result / Order: Oral Delivery: IT IS HEREBY ORDERED THAT: 1. The application is withdrawn. 2. Decision on costs is reserved. Reason: The substantive appeal being before the court the appellant was of the view that the interlocutory application for a stay pending the appeal became moot and decided not to proceed with it. Ms. Angela Cozier did not agree that the application became moot and made an application for cost as there was no consensus between the parties as to an appropriate cost order. She requested cost in the sum of $1500. The Court invited Mr. Kelsick to make submissions on the issue of cost after the end of the substantive appeal. APPEALS Case Name: St. Kitts Nevis Anguilla National Bank Limited v Pinneys Hotel Development Limited SKBHCVAP2020/0014 Date: th October 2020 Coram: The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Gerard Farara QC, Justice of Appeal [Ag.] The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Damien Kelsick appearing with Ms. Dannie Maynard Respondent: Ms. Angela Cozier Issues: Civil interlocutory appeal –– Whether there was a first case management conference held –– Whether the appellant required leave to file an amended defence –– Effect of striking out of parts of a statement of case due to prolixity Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: Josephine Huggins v 1. SKN Choice Times Limited 2. Dwight Cozier SKBHCVAP2019/0049 Date: th October 2020 Coram: The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. Gerard Farara QC, Justice of Appeal [Ag.] The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellant: Ms. JeNise Carty Appellant was present Respondents: Ms. Angela Cozier Issues: Civil interlocutory appeal –– Jurisdiction of a high court judge to set aside order of a court of coordinate jurisdiction –– Enforcement of cost orders made at case management by way of judgment summons –– Reasonable costs to be awarded Type of Order Oral decision Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: 1. Appeal allowed 2. The judgment summonses are restored and are set down for hearing in the High Court 3. Costs to the appellant in the court below in the sum of $1,500, and two-thirds of that amount for this appeal. 4. The respondent shall repay, to the appellant the costs of $6,000 awarded by Ventose J to the respondents in the court below, together with the $2,500 awarded herein, within 14 days of the date of this order. Reason: This was an appeal against an order of Ventose J dismissing four judgment summons applications made by the appellant (as judgment creditor) seeking to enforce cost orders made against the respondents (as judgment debtors). Two of the cost awards sought to be enforced were Master’s orders and the other two were Court of Appeal orders. The judge’s dismissal of the judgment summons applications was based on his determination that they were made at case management conferences – so that, in accordance with the ruling of this Court in MNIHCV2014/0028 Bertrand Burke v Mildred Kirwan et al and Rule 65.7 of the Civil Procedure Rules – the costs are to be paid at the end of the trial and are not enforceable by judgment summons at this stage. Upon examination of the cost orders which were the subject matter of the judgment summonses, the court noted that although the orders may have been made during the case management process, none of them appear to have been made at an actual case management conference, which alone will invite the application of Burke v Kirwan. The court was therefore of the view that the appeal should be allowed. APPEALS Case Name: The Commissioner of Police v Akile Glasgow SKBMCRAP2017/0003 Date: th October 2020 Coram: The Hon. Davidson Kelvin Baptiste, Justice of Appeal The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Gerard St. C. Farara, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Teshaun Vasquez, Crown Counsel Respondent: Dr. Henry Browne QC, with Mr. O’Grenville Browne Issues: Criminal appeal – Appeal against sentence – Proposed appeal by crown against sentence imposed by magistrate – Whether the court had jurisdiction pursuant to the proviso to section 164(3) of Magistrate Code of Procedure Act to hear an appeal by the crown – Whether crown required leave to appeal Type of Order Oral decision Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: 1. The notice of appeal filed on 15 th February 2017 is a nullity. 2. The appeal is dismissed 3. There is no order as to cost. Reason: The respondent, Akile Glasgow, was convicted of a number of offences and was sentenced to a fine of $200,000 to be paid in two months, or two years’ imprisonment in default of such fine. The Crown was dissatisfied with the sentence imposed by the learned judge and filed an appeal on 15 th February 2017. Crown Counsel relied on section 164(3) to the Magistrates Code of Procedure Act to ground a right of appeal. The Court, having reviewed section 164 of the Act, was not persuaded that the section or its proviso gave the Crown a right of appeal against a sentence imposed by a magistrate. They found that even if the Crown had a right of appeal under the proviso, leave of the Court must first have been obtained. The Court was of the view that as no leave had been obtained in this matter the notice of appeal was, as a result, a nullity. Dr. Browne QC sought costs against the crown. However, in the circumstances the court was not minded to make an order as to costs. Case Name: Kevin Andrew Horstwood v 1. The Attorney General of St. Christopher and Nevis 2. Director of Public Prosecutions 3. Inspector Charles Smithen 4. Constable Grego Glasgow 5. Corporal Fitzroy Morton 6. Inspector Vaughn Henderson 7. Franklin Dorset 8. Constable Green 9. Inspector Rodgers 10. Lyle Rawlins 11. Royal St. Christopher and Nevis Police Force 12. Constable Chelroy Ceasar SKBHCVAP2019/0037 Date: th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington, Justice of Appeal [Ag.] Appearances: Appellant: Ms. Emily Shields Respondents: Mr. Dane Hamilton, QC along with Mr. Victor Elliot-Hamilton Issues: Civil interlocutory appeal –– Expert evidence ––Requirements of an application for expert evidence –– Exercise of a judge’s discretion –– Overriding objective –– Type of Order Oral decision Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: 1. The appeal is allowed and order of Ward J delivered on the 9th August, 2019 is set aside. 2. Leave is granted to file the expert report within 14 days from the date of this order. 3. The matter is remitted to the court below for further case management. 4. Costs to be costs in the cause. Reason: This was an appeal from the judgment of the learned Justice Trevor Ward dated 9 th August 2019 where he struck out the appellant’s application to amend an application to admit expert evidence dated 26 th July 2020 and denied the appellant’s application to admit the expert evidence of Dr. Dirk Burkhardt dated 14 th June 2019. The genesis of this matter was an originating motion seeking declarations that the respondents contravened several of the appellant’s constitutional rights by mistreating him following to his arrest and detention for murder. Among the allegations was an allegation that, as a result of the alleged mistreatment, the appellant suffered “severe mental anguish and distress, including resulting fear and anxiety”. This allegation pleaded medical injuries, the type which could only be substantiated by expert medical evidence. On 16 th May 2019, the appellant was granted leave by the high court to file an application to adduce medical evidence along with submissions and authorities on or before 14 th June 2019. The application to admit Dr. Dirk Burkhardt as an expert in the matter was duly filed on that day. The appellant thereafter on 26 th July 2019 filed an application to amend its 14 th June 2020 application. They asserted that this application was to correct procedural errors in the 14 th June 2020 application by removing the doctors report and by annexing a proper Curriculum Vitae of Dr. Burkhardt. The learned judge held that the application to amend was made too late and there was no good reason why such a late amendment should be allowed. The judge expressed misgivings at the manner in which the matter was being conducted, highlighting numerous changes of counsel, applications, delays, and adjournments which he felt, if allowed would continue, would further derail the just and efficient management of the case. Having made this finding and striking out the application to amend, the learned judge held that the application to admit expert evidence was deficient and did not satisfy the Part 32 requirements of the Civil Procedure Rules as to what must be proved on affidavit in such an application with regard to qualifications, training, work experience and the averment that the expert understands his duty to the court. The appellant appealed, indicating that the learned judge was wrong to rule as he did because: 1. To allow the application to amend the application to admit expert evidence would not have caused any prejudice to the respondents as it was an application to merely correct procedural irregularities in the primary application. 2. Even if the learned judge did not agree with the application to amend, he still exercised his discretion wrongly in considering the 14 th July 2020 application as it did contain sufficient information as to the doctors qualifications, training, work experience and his statement that he understood his duty to the court, albeit that information was annexed to the Doctor’s report, which they accept was procedurally improper. The respondents strenuously opposed the appeal echoing largely the trial judge’s assessment of the matter. The court found that the judge had reason to grow frustrated with manner in which the matter had been proceeding and it was understandable that the learned judge sought to robustly case mange the proceedings. However, the court was of the view that the steps taken to strike out both the application to amend and the application to admit expert evidence were not the proper steps to take. The court found that the effect of the judge’s decision was, effectively, to deny the aspects of the Claimant’s claim which dealt with his mental anguish and his medical injury. The claimant could not otherwise reasonably prove these aspects of its claim without medical evidence. The court pointed out that it has consistently held that it is loath to allow procedural defects to deny a party access to the seat of justice. Furthermore, the court found that whilst the trial judge’s central complaints with the 14 th June application to adduce expert evidence was his finding that Dr. Burkhardt’s qualifications were not sufficiently included in the application, this was not the case. The court pointed to a letter exhibited to the affidavit which accompanied the application in which the qualifications of Dr. Burkhardt were outlined, along with the statement from him that he understood his duty to the court in keeping with the Civil Procedure Rules. The court found that the learned judge, notwithstanding the procedural irregularity of the said report, could have note of its contents. The Court was therefore of the view that the decision of the learned judge, went beyond the ambit of reasonable disagreement and should be set aside. Case Name: 1. Exclusive Retreats Limited 2. Kevin Andrew Horstwood v First Caribbean International (Barbados) Limited SKBHCVAP2019/0050 Date: th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington, Justice of Appeal [Ag.] Appearances: Appellants: Mr. Terrence Byron for the appellants Mr. Kevin Horstwood in person and as representative for the first appellant Respondent: Mr. Garth Wilkin Issues: Civil interlocutory appeal –– Stay of execution –– Whether the learned judge erred in making orders dismissing applications filed while there was a stay in place Type of Order Oral decision Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: 1. Appeal dismissed. 2. Cost to the respondent in the sum of $1000. Reason: This was an appeal from a decision dated 9 th December 2019 where the judge lifted a stay imposed on 4 th July 2018. The crux of the appeal was that the learned judge made two orders prior to the lifting of the stay on the 9 th December 2019. The orders in question were made on the 26 th September 2019 and on the 31 st October 2019. The appellants made clear that they were not appealing against the lifting of the stay, they however assert that the judge was judge was incorrect to make two orders while a stay was in place. The appellants submitted that the effect of the stay being in place on 26 th September 2019 meant that the order made by the learned judge on that day was not permitted. The orders were made following applications by the appellant for an injunction, which application was dismissed, and an application to set aside the order dismissing the injunction, which application was also dismissed. The Court found that it was wholly within the judge’s discretion to dismiss or adjourn indefinitely the first application filed by the appellant while the stay was in place. The Court further found that in the light of the finding that the learned judge acted properly in dismissing he first application, he was also within his ambit of power to dismiss the second application. The Court found that the state of affairs complained of by the appellant were put in play by the appellant himself and therefore assessed cost in the sum of $1000. Case Name: 1. Exclusive Retreats Limited 2. Kevin Horstwood v First Caribbean International Bank (Barbados) Limited SKBHCVAP2020/0008 Date: th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Mario Michel, Justice of Appeal The Hon. Mr. John Carrington, Justice of Appeal [Ag.] Appearances: Appellants: Ms. Emily Shields for the appellants Mr. Kevin Horstwood in person and as representative for the first appellant Respondent: Mr. Garth Wilkin Issues: Civil interlocutory appeal –– Appeal against refusal of an injunction –– Whether damages are adequate remedy –– Whether the fact that the subject matter involved land meant in and of itself that damages were not a sufficient remedy Type of Order Oral decision Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: 1. The appeal is dismissed and order of Justice Ventose dated 25 th February 2020 is affirmed. 2. Cost to the respondent in the sum of $1000 Reason: This was an appeal against the decision of the learned Justice Eddy Ventose dated 25 th February 2020 in which the learned judge refused to grant an injunction against the respondents. The appellants appealed and filed ten grounds of appeal which can be crystallized into a question of whether or not the judge erred in his application of the principles of American Cyanamid v Ethicon Ltd [1975] 1 All ER 504. The court considered the very helpful arguments and skeleton submissions of both Ms. Shields and Mr. Wilkins, considered the totality of the circumstances, gave deliberate consideration to the order of the learned judge and found that there was no discernable error on the record. The court found that the learned judge quite properly concluded that although there were circumstances in the appellants’ case that showed that there was a serious issue to be tried, damages would be an adequate remedy. Having so concluded, the learned judge was, in the view of the Court, not required to consider the other elements of American Cyanamid test and was correct to refuse the grant of the injunction. In support of their findings, the Court highlighted the judgment of National Commercial Bank v Olint [2009] UKPC 16 which reiterated the American Cyanamid principles. The Court held that insofar as the judge concluded that damages was an adequate remedy it could not impugn his decision. The court was therefore of the unanimous view that the appeal should be dismissed. JUDGMENT Case Name: America 2030 Capital Limited v 1. Sunpower Business Group PTE Limited 2. Tournan Trading PTE Limited 3. Guo Hong Xing 4. Ma Ming SKBHCVAP2020/0016 1. America 2030 Capital Limited 2. Mark Simon Bentley (aka) Val Sklarov v 1. Sunpower Business Group PTE Limited 2. Tournan Trading PTE Limited SKBHCVAP2020/0015 Date: th October, 2020 Coram: The Hon. Dame. Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Applicants: Ms. Angela Cozier Respondents: Mr. Nicholas Peacock, Ms. Elizabeth Harper and Ms. Michelle Slack Issues: Application to discharge order of single judge of Court of Appeal — Order of single dismissing applications for leave to appeal having been filed out of time — Applications for extension of time — Principles guiding grant of extension of time — Approach of appellate court to exercise of case management discretion of lower court judge Type of Order Judgment Result / Order: ORAL JUDGMENT [1] PEREIRA CJ: There are in essence three applications before the Court for determination, arising out of the two matters intituled as appeals numbered SKBHCVAP2020/0015 and SKBHCVAP2020/0016. The applications raise similar issues arising out of similar applications made in the claims below. The claims in the court below are claims numbered NEVHCVAP2019/023 and NEVHCVAP2019/0141. Claim NEVHCVAP2019/023 has been commonly referred to as the ‘Fixed Date claim’ (FDC) and was the claim filed first in time. Claim NEVHCVAP2019/0141 commonly called ‘the Fraud Claim’ was filed later. For convenience only, they will be referred to as the Fixed Date Claim (FDC) and the Fraud Claim. Central to the FDC and the Fraud Claim which involve similar or related parties, are stock loan agreements and amendments thereto in respect of the arbitration agreement contained therein. The applications before this Court are for: (a) the discharge of the orders of a single judge of this Court dismissing applications for leave to appeal; (b) extensions of time to seek leave to appeal; and (c) in respect of the Fraud Claim only, an interim stay of the proceedings below pending the determination of the proposed appeal. [2] By way of background summary, for placing the matters in context, in February 2019, the respondents in appeal SKBHCVAP2020/0016 namely, Sunpower Business Group PTE Limited (“Sunpower”), Tournan Trading PTE Limited (“Tournan”), Guo Hong Xin and Ma Ming filed the FDC in the Nevis High Court against America 2030 Capital Limited (“America 2030”), and Ms. Karen Hill Hector, the arbitrator purportedly appointed under the arbitration agreement in the stock loan agreement as amended. An interim injunction was also sought restraining the commencement of arbitration on the basis that arbitration had not been validly commenced, as well as for the removal of Ms. Karen Hill Hector as arbitrator on the basis of apparent bias. This application was supported by the affidavit evidence of Guo Hong Xin, director and beneficial owner of Sunpower, which was said to be also in support of the FDC. It was accepted that, under the stock loan agreement as amended, the Nevis High Court is the supervisory court for the purposes of the arbitration clause as amended. The injunction was granted and remains in place. [3] Case management hearings were undertaken and some 6 issues were eventually identified for determination at trial of the FDC, which was listed to take place around 17th December 2019. [4] On 5th December 2019, the respondents in appeal SKBHCVAP2020/0015 namely, Sunpower and Tournan, commenced the Fraud Claim against America 2030, Mr. Mark Simon Bentley (“Mr. Sklarov”) and the stockholder/broker, Weiser Global Capital Markets Ltd. (formerly known as Weiser Asset Management Ltd.) (“Weiser”) seeking, among other relief, recission of the stock loan agreement, including the arbitration agreement as well as for tracing orders to discover the whereabouts of the Sunpower shares or stock which had been pledged as security under the stock loan agreement, in circumstances where they assert no loans had in fact been provided to the respondents despite the deposit of their stocks. They also sought damages. The respondents considered that they were the victims of a stock loan fraud scheme by America 2030 and its guiding mind, Mr. Sklarov, assisted by Weiser, through the use of a web of various corporate entities. They alleged that, by December 2019, they had uncovered evidence which they believed showed that they had been the victims of a fraud. [5] On 6th December 2019, a worldwide freezing order was granted against America 2030 and Mr. Sklarov and a preservation order was granted against Weiser, prohibiting it from disposing of or diminishing the value of the Sunpower shares held by it or any proceeds of sale thereof. Underpinning the freezing order, were orders for disclosure of assets and for information relative to the stock. There has been no compliance with these orders to date and these appear to have been simply ignored. The respondents have not brought proceedings for contempt as they consider doing so would be pointless as no assets of the applicants appear to be situate in the State of Saint Kitts and Nevis. [6] The applicants failed to file any defences to the Fraud Claim within the time limited and default judgment was eventually entered against them. [7] On 3rd Feburary 2020, America 2030 issued an application to strike out the FDC alleging in general an abuse of process. Its challenge may be condensed as follows: (a) various breaches of the Civil Procedure Rules 2000 (CPR), in particular, CPR 8.1 (as to form) and CPR 30 as to portions being scandalous and irrelevant; (b) that the FDC was barred by res judicata or issue or party estoppel on the basis that the Singapore High Court had determined the issue of arbitration in Nevis as between the same parties; and (c) that the FDC failed to disclose any reasonable ground for bringing the claim. [8] In respect of the Fraud Claim, America 2030, Mr. Sklarov and Weiser asserted in the main that: (a) the claim was in breach of the CPR as it sought to re-litigate an issue namely, jurisdiction to determine the issue of breach of contract and the issue of arbitration such claim having been stayed by the Singapore High Court (the res judicata/issue estoppel point); and (b) the statement of claim was prolix, scandalous and portions thereof irrelevant. [9] The learned judge refused the strike out applications. In his written reasons, he referred to the parties in the Singapore proceedings and stated at paragraph 10 that neither Mr. Sklarov or Weiser were parties to the Singapore proceedings. They are however parties to the Fraud Claim. The trial judge accepted that the Singapore court was made aware of the Nevis High Court proceedings by way of the FDC by America 2030. He also accepted that Mr. Sklarov’s evidence before the Singapore court pointed out that no relief was being sought there rendering the stock loan agreement null and void. The learned judge further opined that the issues raised in the FDC “especially as it relates to the impartiality of the arbitrator and the process in general, were not before the court in Singapore”. The Singapore court granted a stay of Sunpower’s claim pursuant to section 6 of the International Arbitration Act of Singapore. No stay was granted in respect of the claims brought by Ma Ming and Mr. Guo Hong Xin as they were not parties to the stock loan agreement. [10] The learned judge dealt with the attacks made on the claims under the two broad heads of res judicata/issue estoppel, and whether the claims are an abuse of process having regard to the stay granted in respect of Sunpower’s claim in Singapore and finally the procedural defects in the claims so as to determine whether the nuclear option of striking out the claims were warranted. [11] In relation to the issue estoppel point, the learned judge concluded that no issue estoppel arose in that the stay order did not seek to trouble the process in Nevis, the Singapore court being fully aware of the proceedings which had been commenced in Nevis. As the learned judge puts it at paragraph 38 of his reasons, “[a]ll that was done was to stay the Singapore proceedings pending the outcome of the arbitration in Nevis”. He further opined that the Singapore court would have been aware of the Nevis court’s supervisory jurisdiction over the arbitration and that “the court’s desire to honour arbitration agreements are not designed to oust [the court’s] jurisdiction over disputes, but rather…to honour contractual arrangements entered into freely by parties”. He further found that the stay granted in Singapore was in no way intended to take away the jurisdiction of the Nevis court, being the supervisory court, to consider the claims made in the FDC to ensure the integrity of the arbitral process. He also referred to the fact that the respondents sought removal of the arbitrator on the basis of bias and that the Nevis court was seized with the power to do so and that the stay of the Singapore proceedings did not take away the right to seek that specific relief. He concluded that no issue estoppel could arise in such circumstances. [12] As it relates to the Fraud Claim, the learned judge concluded that although the claim does repeat in some respects the issues of breach of contract, they are to a great extent predicated on different issues. In essence, that the case was one alleging fraud. He found at paragraph 45 of his reasons that “the Fraud case unlike the case in Singapore seeks to rescind the agreement altogether rather than enforce it” on the basis of fraud and that the respondents were relying on the court’s power contained in sections 24(2) and (3) of the 1950 Arbitration Act of the UK which is in force in Saint Kitts and Nevis. He concluded at paragraph 53 of his reasons that the issues raised in the Fraud Claim were not similar to the issues in the Singapore claim, save for the issues relating to breach of contract. Even so, he concluded that those issues “had not been fully litigated given the fact that the proceedings…[had been] stayed”; the parties were not the same; and the issues had not been finally determined in Singapore. Accordingly, he found that there was no issue estoppel or res judicata barring the Nevis Fraud Claim. The learned judge also found for the same reasons that there was no abuse of the court’s process in any way, as asserted by the applicants. [13] On the procedural issues, the learned judge made plain that form would not be permitted to override substance. He found that the allegation that the FDC was not supported by affidavit was factually incorrect and recounted the steps of the FDC through the case management processes with the applicants filing affidavit evidence in response. He was satisfied that the applicants were well aware of the case they were called upon to meet. As it relates to the Fraud Claim, he found that the assertion that the claim was unsubstantiated was without merit, having considered that it was unnecessary to duplicate documents earlier exhibited to the affidavit filed in the claim in support of the freezing order. He further opined that a complaint of lack of information could be remedied by a request for information. He accordingly concluded that none of the procedural issues raised warranted striking out the claims. [14] Finally, on the complaint that no reasonable basis had been shown for bringing the claims, the learned judge concluded that the issues identified for trial by the case management judge were substantive issues relating to the validity of the commencement of the arbitration proceedings; the impartiality of the arbitrator and her removal in the FDC; and substantive allegations of fraud, and misrepresentation in respect of the Fraud Claim. He found the statement of claim to be detailed rather than prolix given the peculiar circumstances of the case. Accordingly, the learned judge held that the test relating to strike out applications had not been met and refused the strike out applications. [15] The applicants sought to appeal the dismissal of their strike out applications. The leave applications were filed a day out time, on 2nd July 2020. The applicants must be taken to have been aware of this given their explanation of electrical and associated internet problems experienced by them when they sought to file on the last day limited for making the application under the CPR. No applications to extend time were made. A single judge of this Court, on noting that the leave applications were filed out of time dismissed the applications for that reason on 28th July 2020. [16] The applicants then made the present rolled up applications seeking: to discharge the order of the single judge primarily on the basis that she had wrongly exercised her discretion in dismissing the leave applications; an extension of time to make the leave applications and for leave; and for a stay of proceedings in the Fraud Claim. They contend that the delay in making the applications was not inordinate; that they had provided a good explanation for the delay and importantly that their appeals had realistic prospects of success. [17] It is worth stating that the applications to discharge the single judge’s order has itself been made out of time with no extension of time being sought. That said, we are of the view that in any event, there is no basis for discharging the single judge’s order. As the leave applications were filed out of time and there being no applications to extend time, the learned judge quite rightly dismissed the applications as being not properly before the Court. This did not engage the exercise of a discretion. Rather, it was simply a recognition that there was no leave application properly before the Court. The Application to Extend Time to Seek Leave to Appeal [18] This brings us to a consideration of the application for extension of time. Notwithstanding the sheer volume and multiplicity of documents this matter has unnecessarily generated, the principles guiding the exercise of the discretion are well settled. The Court will have regard to all the circumstances of the case including the length of the delay; whether there is a good explanation for it; the prejudice and whether the proposed appeal has realistic prospects of success. It is the grant of an indulgence to a party who is in default. Length of Delay [19] While the delay in making their application may not be said to be inordinate, the applicants were seemingly aware that they were out of time from the very day of filing their leave applications. That period is sufficiently explained by the electrical and internet difficulties experienced by the applicants at that time. What has not been sufficiently explained is why the applicants failed to issue extension applications then and there but rather waited until the leave applications were dismissed for precisely the fact of being untimely, followed by a further period after what must have been appreciated would have been the consequence of untimeliness in respect of their leave applications. Rather, the applicants seemed content to challenge their dismissal by asserting that the single judge was in error for dismissing them even in the face of never seeking to place material before the single judge on which she could have exercised her discretion in putting matters right by extending time. The fact that the Court has a power to put matters right does not equate to the Court exercising that power in a vacuum. Prejudice [20] It cannot be gainsaid that the respondents now have a judgment in their favour in respect of the Fraud Claim. Furthermore, the Court has been told without demur that the applicants have failed to engage this claim on the merits in the court below. It does not appear that the applicants have taken any steps to set aside the default judgment, a step which would require them to put forward defences to the claim on the merits even while they seek from this Court a stay of the very proceedings in the court below which could only be taken to be asking, in effect, for a stay of execution of the judgment which has already been entered. They have flouted the disclosure and asset tracing orders of the court. In such circumstances, it cannot be said that the respondents will suffer no prejudice. Prospects of Success [21] It is this factor on which detailed arguments on both sides were focused. It is useful to remind ourselves that what was before the learned judge were applications to strike out the claims. He was very much alive to the fact that the power to strike is one of the most powerful weapons in the court’s arsenal in managing and dealing with a case justly in the exercise of the overriding objective. The power has been described by the Privy Council in Real Time Systems Limited v Renraw Investments Limited et al as one of the court’s nuclear options and thus one to be exercised sparingly and normally as a measure of last resort. The learned judge, from his reasoning, was also alive to the fact that in dealing with an application to strike out a case, he also had open to him the whole plenitude of case management powers on which to draw rather than acceding to this nuclear option. As the trial judge, he would have been managing the cases and is best placed to assess the general feel of them. [22] A party who seeks to overturn the exercise of a judge’s discretion in such circumstances has a heavy burden to discharge in showing how the exercise of his discretion refusing to strike out falls outside the generous ambit of the discretion reposed in him. For the purposes of this exercise, the applicants must show that their proposed appeals have realistic prospects of overturning the discretion exercised by him, and that this Court should in the exercise of its discretion extend time for the purpose of seeking leave. [23] The grant of leave itself requires that the proposed appeals meet the threshold of showing realistic prospects of success warranting the Court’s permission to appeal. The proposed appeals herein do not lie as of right and for good reason. They are from interlocutory decisions made by the court below in ongoing proceedings. Such appeals always have an impact on the flow and progress of the underlying proceedings with the potential for them to become protracted and delayed. The requirement for leave to appeal most interlocutory decisions provides a filter for safeguarding the Court’s process and resources by enabling the Court to weed out would-be unmeritorious appeals. [24] We now turn to the applicants’ arguments bearing in mind those observations. The applicants have placed heavy reliance on the 1981 decision of the UK House of Lords (now the UK Supreme Court) of Bremer Vulkan v South India Shipping Corporation Ltd. Counsel for the applicants contend that this case stands for the proposition that the court has no jurisdiction to restrain arbitration proceedings and, in essence, that the court having done so was in error thus giving rise to a realistic prospect of success on appeal. Counsel also repeated many of the arguments made before the trial judge as to the stay granted in the Singapore proceedings which she says requires the application of the principles of res judicata or issue estoppel barring the claims. She asserts that the FDC could not seek to stay the arbitration proceedings given the arbitration agreement and insists, in effect, that the intent of the stay granted by the Singapore court was for the purpose of the arbitration proceedings being carried out in Nevis with no recourse to the High Court being possible at this stage. [25] Having reviewed the Bremer Vulkan decision, we do not agree that it stands for that broad proposition as advanced by counsel. To the contrary, the court recognised the power to grant injunctions restraining an arbitration while making clear that such a power is to be exercised only in appropriate cases. This case is also of no assistance to the applicants because they are not seeking to appeal against the grant of the injunction. Rather, they seek to rely on it as a basis for striking out the claims altogether as an abuse of process in favour of the arbitration proceedings, notwithstanding that the respondents’ main thrust in the proceedings is to impeach the arbitration agreements as well as the arbitral process in respect of its commencement and the impartiality of the arbitrator. We are satisfied that the learned judge was alive to this distinction, and the nature of the proceedings before him based on his careful reasoning. [26] Having reviewed the reasoning of the learned judge, we have not discerned any basis tending to show that he may have committed some error in principle in his assessment of the evidence and the pleaded cases before him, or that he failed to take into account relevant matters or took into account irrelevant matters or that there is a real prospect that his decision may be plainly wrong in relation to those aspects or his treatment of the procedural issues. We are accordingly not of the view that the proposed appeals from the exercise of his discretion have any realistic prospect of success. It would be pointless to grant an extension of time to allow appeals with little or no hope of success to be launched in the circumstances. Such a course would not be in keeping with furthering the overriding objective of dealing with cases justly. The extensions of time are accordingly refused. It follows that the applications for leave to appeal fall away and that the application for a stay of proceedings or stay of execution in the Fraud Claim must be dismissed. Conclusion [27] For the reasons given, the applications to discharge the orders of the single judge are dismissed; the applications to extend time for seeking leave to appeal are refused. Accordingly, the applications for leave to appeal fall away and the application for a stay in the Fraud Claim is dismissed. Costs [28] The applicants shall bear the costs of the applications to be assessed by the court below, unless agreed by the parties in 30 days, such costs to be no more than two-thirds of the assessed costs in the court below. IT IS HEREBY ORDERED THAT: 1. The applications to discharge the orders of the single judge are dismissed. 2. The applications to extend time for seeking leave to appeal are refused and accordingly the applications for leave to appeal fall away. 3. The application for a stay in the Fraud Claim is dismissed 4. The applicants shall bear the costs of the applications to be assessed by the court below, unless agreed by the parties in 30 days, such costs to be no more than two-thirds of the assessed costs in the court below. Case Name: 1. Minister of Agriculture, Lands Housing, Cooperatives & Fisheries 2. The Nevis Housing and Land Development Corporation v Eustace Nisbett SKBHCVAP2019/0020 Date: th October 2020 Coram: The Hon. Dame. Janice Pereira, Chief Justice The Hon. Mde. Gertel Thom, Justice of Appeal The Hon. Mr. Paul Webster, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Terrence V. Byron Respondent: Mr. Patrice Nisbett Issues: Civil Appeal – Whether ordinary contracts of employment are amenable to judicial review proceedings – When would the termination of a contract of employment be subject to public law principles – What is the test to be applied to determine whether a matter is a public law matter as opposed to a private law matter Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved JUDGMENT Case Name: St. Kitts Nevis Anguilla National Bank Limited v Pinneys Hotel Development Limited SKBHCVAP2020/0014 Date: th October, 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Damien Kelsick and Ms. Dannie Maynard Respondent: Ms. Angela Cozier Issues: Civil interlocutory appeal –– Prolixity of a defence –– Effect of striking out parts of a statement of claim due to prolixity –– Amending a defence without permission –– Civil Procedure Rules Part 27 –– Whether a courts list is sufficient to prove that a first case management conference took place Type of Order Oral Judgment Result / Order: Oral Delivery: IT IS HEREBY ORDERED THAT:

1.The appeal is allowed.

2.The orders made by Master Dyer on 18th June 2020 are set aside.

3.The Amended Defence filed by the Appellants on 3rd July 2018 was properly filed.

4.The matter shall hereafter proceed in accordance with the Civil Procedure Rules 2000.

5.The Respondent shall pay the costs of the application heard in the court below, and the costs of this appeal, in the sum of not more than two-thirds of the costs in the court below, such costs to be assessed if not agreed within 21 days of the date of this order. Reason: This was an appeal against the order of Master Dyer made on the 18 th June 2020 in which she struck out certain paragraphs of the appellants amended defence. The learned master stuck out the paragraphs after she had determined that those paragraphs which were added by the appellant to its amended defence were not in compliance with a prior order of Master Actie and were added without the prior permission of the court. Master Dyer in her order also directed the Appellant to file a Re-Amended Defence within 7 days failing which the entire defence would be struck out (“Unless Order”). The Appellant did not comply with the Unless Order and appealed the Master’s decision with leave of this court. The amendment to the defence arose out of a finding by Master Actie that certain paragraphs of the appellants defence were prolix. After making finding, Master Actie made an Order that those paragraphs be struck out and that an amended defence be filed within 7 days. The Appellant amended its defence by removing the offending paragraphs but also re-pleading the underlying facts from those impugned paragraphs in what it considered to be in a manner that did not offend the rule against prolixity. The Respondent’s response was to file another strike out Application, this time seeking also an Unless Order on the basis that the amendments were made without leave of the court on the basis that by the date of that pleading, the first case management conference in the proceedings had already taken place. Master Dyer agreed and made the 18 th June 2020 orders. Two issues were therefore canvassed on the appeal: a. Was the effect of Master Actie’s Order that the Appellant was entitled in amending its defence to re-plead the same facts in a different manner? b. Had the first case management conference taken place so that leave was required to amend the defence? Mr. Kelsick who appeared with Ms. Maynard for the Appellant submitted that Master’s Actie order to amend the pleadings should be read in the context of her finding that the offending paragraphs were prolix. He submitted that the direction to amend the defence should therefore be treated as including permission to amend to re-plead the same facts in a proper manner. The Court did not accept this submission. The Court found instead that while Master Actie’s Order may have been based on her finding that the offending paragraphs were prolix, her direction to amend clearly stated, that the offending paragraphs should be struck out and an amended pleading reflecting that Order should be filed. The court therefore found that the Order for the amended pleading, on the face of it, was therefore limited to the matters stated in the first paragraph of her Order, which did not include any other amendment to the existing pleading. On the second issue the Court noted that CPR 20.1 states that a statement of case (which includes a defence) can be amended once, without the court’s permission at any time prior to the date fixed by the court for the first case management conference. The Court found that while the ethos of the Civil Procedure Rules is that all cases are now managed by the court and the process of case management therefore commences from the time when service of a claim is acknowledged (when it is the court office that notifies the claimant of such acknowledgment under CPR Part 9.4) through to trial of the claim, this overarching process should not be confused with the specific event of a case management conference which is dealt with at CPR Part 27. The Court highlighted the fact that the court office fixes the case management conference under Part 27.3 and that particular event must be attended by the party or his representative under Part 27.4. The Court also pointed to the fact that the court must consider making specific orders at a case management conference under Part 27.5 and that costs of attending the case management conference, as distinct from the hearing of an application, are part of the prescribed costs under Part 65.7. The Court was therefore of the view that the date of the first case management conference, as it is a specific event, should be established as a matter of fact and the party who is relying on this fact should be able to satisfy the court as to this date. When taxed by the court, Mrs. Cozier who appeared for the Respondent, directed the court’s attention to several court lists on which the matter was listed for either “hearing of an application” or “further case management” and the Order made by Master Corbin on 18 July 2017 for “further case management” to take place in October 2017. However, the Court found that a court list is not a prescribed document under the CPR but is an administrative procedure adopted by the court office for the assistance of the court and parties and, as such the nomenclature given to proceedings in the court list is not conclusive. The court also determined that CPR 27.3(6), which stipulates that the court office must give all parties not less than 14 days’ notice of the date, time and place of the case management conference, will apply to the fixing of a case management conference whether set by the court or the court’s office. In view of the importance given to the holding of the first case management conference the Court reiterated that it should always be made clear when a case management conference is being listed and the procedural requirements for such conferences should be scrupulously observed. The Court was of the view that the respondent was not able to point conclusively to the date of any hearing in the nature of a case management conference, i.e. in which the court considered whether to give directions in relation to the matters set out in CPR Part 27.5. The court, despite the request from the respondent, was disinclined to infer that a case management conference must have taken place where the respondent had sought and obtained an Unless Order from the court below. The Court therefore held that the appeal should be allowed as the defence could have been amended by the appellant on the relevant date without the leave of the Court and invited counsel to make written submissions on the costs of an application withdrawn at the commencement of the appeal within 7 days. APPEALS Case Name: Manohardas Devidas Chandiramani v 1. Mark Brantley 2. The Attorney General NEVHCVAP2020/0001 Date: th October 2020 Coram: The Hon. Mde. Louise Esther Blenman, Justice of Appeal The Hon. Mr. Gerard Farara, Justice of Appeal [Ag.] The Hon. Mr. John Carrington QC, Justice of Appeal [Ag.] Appearances: Appellant: Mr. Damien Kelsick and Ms. Dannie Maynard Respondents: Ms. Rhonda Nisbett for the first respondent Ms. Simone Bullen for the second respondent Issues: Civil interlocutory appeal –– Compulsory acquisition of land –– Constitutional motion –– Compensation for land acquired –– Whether a mortgagee can bring a constitutional motion with respect to its rights as a mortgagee –– Procedure to request an apportionment at the board of assessment Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved Case Name: Bennette Roach V National Development Foundation Montserrat Limited MNIHCVAP2018/0002 Date: th October 2020 Coram: The Hon. Mde. Louise Esther Blenman The Hon. Mr. Gerard Farara QC [Ag.] The Hon. Mr. John Carrington QC [Ag.] Appearances: Appellant: Mr. Warren Cassell Respondent: Mr. Justin Simon, QC Issues: Civil appeal –– Revival of a Debt –– Statute of Limitations –– Whether a payment made after the limitation period for enforcing a debt can revive the debt –– Whether the revival of debt must be pleaded –– Whether the learned trial judge’s findings of fact ought to be disturbed –– Whether the parties entered into a new agreement which superseded the previous agreement Type of Order Reserved Result / Order: Oral Delivery IT IS HEREBY ORDERED THAT: Judgment is reserved