November 6th, 2007

CHAMBER HEARING Tuesday 6th November, 2007 CORAM The Hon. Hugh Rawlins, Justice of Appeal SAINT LUCIA Case Name Rachel Atkinson v Gertrude Mathurin [Civil Appeal No. 2 of 2007] Appearances Appellant Mr. Ermin Moise Respondent Mrs. Lydia Faisal Party present Mr. Nathaniel Thomas who has Power of Attorney for the 1st Defendant also attended. Issue: Application to determine whether a stay of execution should be granted. Result: It was ordered that: (1) The Order dated 8th October 2007 granting a stay of execution of the judgment of the Honourable Justice Sandra Mason, QC, is hereby discharged. (2) The Application by the Respondent for an Order that the Appellant shall forthwith satisfy the prescribed costs Order and that the costs estimated in the High court at $32,165.56 be paid by the Respondents into an Escrow Account pending the determination of the Appeal is granted, in part. (3) The Appellant shall pay the sum of $32,165.56 into an escrow account in a bank in St. Lucia, which is to be in the names of Solicitors for the Appellant and Respondent. (4) The continuation of the Appeal shall be conditional upon the Appellant meeting the requirements of paragraph 3 of this Order. (5) Costs on these applications are reserved pending the determination of the Appeal, or upon the matter being brought up for mention by solicitors for the Respondent. Reason: The stay was granted as a holding measure pending the hearing of further submissions with respect to whether the stay should continue because the appellant might not be able to prosecute the appeal for financial reasons if the stay is not granted. However, the court lifted the stay and granted the application by the respondent to order the appellant to satisfy the costs order as a precondition to continuing to prosecute the appeal because it found that the appellant has not sufficiently particularized the financial hardships pleaded to the satisfaction of the court. CORAM The Hon. Denys Barrow, SC, Justice of Appeal Case Name Martinus Jn. Phillip v Philmore Davis [Civ. App. No. 30 of 2007] Appearances: Appellant: Mr. Horace Fraser Respondent: Ms. Lydia Faisal Issue: Application for grounds of appeal to be struck out Result:

1.The Appellant shall file an Amended Notice of Appeal on or before 20th December, 2007.

2.Costs of $500 to be paid by the Appellant. Case Name Theodocia Emmanuel v Cletus Hippolyte [Civ. App. No. 36 of 2007] Appearances: Appellant: Ms. Carol Gideon Respondent: Mr. Dexter Theodore Issue: Application for Leave to Appeal Result: 1. Leave to appeal was granted. 2. Compliance with the usual requirement for this procedural appeal, including the filing of arguments was dispensed with and the appeal was summarily determined in favour of the Appellant with no opposition by the respondent.

3.The judgment dated 25th September, 2007 and entered on 27th September, 2007 was set aside and the claim remitted for hearing by the High Court.

4.Each party was ordered to bear his/her own costs. DIRECTIONS ANGUILLA Case Name Jeffrey A. Carty v. Raphael Edwards [Civ. App. No. 1 of 2004] Appearances: Appellant: Mr. Thomas Astaphan Respondent: In person Issue: Application for security for costs Result: 1. The Appellant shall give security for costs of the appeal in the sum of US$22,000 either in cash or by a bond or guarantee given by a licensed financial institution or insurance company not later than 2nd December, 2007 provided that the parties shall be at liberty to agree on some other form of security. 2. Costs of this Application in the sum of EC$500 to the Applicant. Reason: In principle the applicant was entitled to an order for security for costs. ANTIGUA AND BARBUDA Case Name Romaneta Francis v Fitzroy Spaulding [Mag. Civ. App. No. 1 of 2007] Appearances: Appellant: Ms. E. Deniscia Thomas Respondent: Dane Hamilton & Associates Issue: Application for extension of time to appeal Result: The Application was refused. Costs to the Respondent in the sum of $500. Reason: No good reason was given for the delay in applying for the extension of time. Case Name Caribbean Development (Antigua) Ltd. trading as Jolly Harbour Marina v Ian Ferguson et al [Civ. App. No. 15 of 2007] Appearances: Appellant: Watt & Associates Respondent: Hill & Hill Issue: Application for Stay of Execution Result: 1. The Appellant shall pay to the Respondents their costs of $73,087.35 on or before the 19th day of October, 2007 and enter into a bond with a local bank in the sum of $490,746.98 and deposit same with the Registrar on or before the 16th day of November, 2007 and that upon such actions no proceedings will be taken to enforce the Judgment pending the Appellant’s appeal. 2. The Respondents undertake to repay the Appellant the said costs of $73,087.35 if they are unsuccessful in their appeal. Reason: Terms agreed. DOMINICA Case Name Luke John v Curtis George [Mag. Civ. App. No. 10 of 2007] Appearances: Appellant: In person Respondent: In person Issue: Application for extension of time to file Notice of Appeal Result: The Application was adjourned. Reason: Service had not been effected. GRENADA Case Name Sandra Claudia Roberts v Glenford Thomas [Civ. App. No. 19 of 2005] Appearances: Appellant: Mr. Michael J. St. B. Sylvester Respondent: Mr. Anselm B. Clouden Issue: Application for Discharge Order Result: 1. The Application was dismissed without prejudice to any renewed application which the Applicant may wish to make after he has applied to dismiss the appeal for want of prosecution or otherwise, if the Applicant indeed has a proper basis for so applying. 2. No order as to costs. Reason: The proper course for the applicant is to have the entire appeal dismissed, if the factual assertions are true Case Name Volker Stevin Construction Europe B.V v Vos Limited [Civ. App. No. 13 of 2007] Appearances: Appellant: Seon & Associates Respondent: Wilkinson, Wilkinson & Wilkinson Issue: Application for paragraphs to be struck out from Notice of Appeal Result: It was directed that: 1. Skeleton Argument in support of the Application to strike out the specified paragraphs in the Notice of Appeal is to be filed by the Appellant on or by 16th November, 2007. 2. Skeleton Argument in opposition is to be filed by the Respondent on or by 30th November, 2007. 3. The Application shall thereafter be considered on the written arguments by a single judge of the Court of Appeal. Case Name Dr. The Hon Keith Mitchell v Lloyd Noel et al [Civ. App. No. 23 of 2007] Appearances: Appellant: Mr. A. Olowu Respondent: No appearances Issue: Application for Leave to Appeal Result: 1. Leave to Appeal was granted. 2. Each party shall file an affidavit as to the facts surrounding the entry and the setting aside of the judgment along with its Skeleton Argument. 3. The Appellant shall file a Notice of Appeal on or before 20th November, 2007. Reason: Leave to Appeal was granted notwithstanding the non-service on the Respondent as it was not necessary to hear him. The nature of the Order indicates that the Master made a decision of her own initiative and without an application. In the circumstances, it was the more efficient use of the court’s time to permit this matter to proceed as a procedural appeal. SAINT KITTS & NEVIS Case Name Debbie Gumbs v Stanley Franks [Civ. App. No. 2 of 2007] Appearances Appellant Mr. John Cato Respondent Dublin & Johnson Issue Application for extension of time Result The Application was refused and costs awarded to the Respondent in the sum of $500. Reason The Appellant had failed to satisfactorily explain the delay in the making of the Application. TORTOLA Case Name Multiperils International Inc. v Marple Point Energy Ltd. [Civ. App. No. 26 of 2007] Appearances: Appellant: Farara Kerins Respondent: Maples & Calder Issue: Application for Leave to Appeal Application for security for costs Result: 1. Leave to Appeal was granted. 2. Costs of this Application shall be costs in the appeal. 3. The Notice of Application for Security for Costs shall proceed as follows: (i) The Applicant shall file Skeleton Arguments and not full submissions on or before 20th November, 2007. (ii) The Respondent shall file Skeleton Arguments in opposition and not full submissions on or before 4th December, 2007. (iii) Each party shall be at liberty to file affidavits during the time limited for the filing of its Skeleton Argument. (iv) The Applicant for security for costs shall be heard thereafter by a judge on the written arguments. Reason: The Appellant has a realistic prospect of success on the appeal. MONTSERRAT Case Name Montserrat Electricity Services Ltd. v Ernest Henry [Civ. App. No. 2 of 2007] Appearances: Appellant: Allen Markham & Associates Respondent: In person Issue: Application for Notice of Appeal to be dismissed Result: 1. The Notice of Appeal filed by the Appellant on 23rd July, 2007 was dismissed. 2. Costs to the Applicant in the sum of $500. Reason: Montserrat Electricity had appealed against the interlocutory decision of Octave J dated 16th July, 2007 without first obtaining leave. Section 31(1)(g) of the Supreme Court (Montserrat) Act provides that an appeal from an interlocutory decision may only be brought with leave. As was decided in Oliver MacDonna v Benjamin Richardson Civ. App. No 3 of 2005, an appeal brought without leave where leave is required is a nullity. Case Name Ernest Henry v Montserrat Services Ltd [Civ. App. No. 3 of 2007] Appearances: Appellant: In person Respondent: Allen Markham & Associates Issue: Application for Leave to Appeal out of time Result: 1. The Application for Leave to Appeal out of time was refused. 2. Costs to the Respondent in the sum of $500. Reason: As the decision in Dominica Agricultural and Industrial Development Bank v Mavis Williams Civ. App. No 20 of 2005 delivered on 18 September, 2006 shows, a decision to delay filing an appeal within the time limited by the Rules is usually fatal. The principle is that litigants must comply with the Rules as to the time for taking steps and are not at liberty to decide the time within which a step will be taken. The ultimate object of this principle is to have matters settled in certain time limits and therefore produce certainty in litigation and in the lives of parties. The Application, having been made a year out of time, was accordingly refused.

CHAMBER HEARING Tuesday 6th November, 2007 CORAM The Hon. Hugh Rawlins, Justice of Appeal SAINT LUCIA Case Name Rachel Atkinson v Gertrude Mathurin [Civil Appeal No. 2 of 2007] Appearances Appellant Mr. Ermin Moise Respondent Mrs. Lydia Faisal Party present Mr. Nathaniel Thomas who has Power of Attorney for the 1st Defendant also attended. Issue: Application to determine whether a stay of execution should be granted. Result: It was ordered that: (1) The Order dated 8th October 2007 granting a stay of execution of the judgment of the Honourable Justice Sandra Mason, QC, is hereby discharged. (2) The Application by the Respondent for an Order that the Appellant shall forthwith satisfy the prescribed costs Order and that the costs estimated in the High court at $32,165.56 be paid by the Respondents into an Escrow Account pending the determination of the Appeal is granted, in part. (3) The Appellant shall pay the sum of $32,165.56 into an escrow account in a bank in St. Lucia, which is to be in the names of Solicitors for the Appellant and Respondent. (4) The continuation of the Appeal shall be conditional upon the Appellant meeting the requirements of paragraph 3 of this Order. (5) Costs on these applications are reserved pending the determination of the Appeal, or upon the matter being brought up for mention by solicitors for the Respondent. Reason: The stay was granted as a holding measure pending the hearing of further submissions with respect to whether the stay should continue because the appellant might not be able to prosecute the appeal for financial reasons if the stay is not granted. However, the court lifted the stay and granted the application by the respondent to order the appellant to satisfy the costs order as a precondition to continuing to prosecute the appeal because it found that the appellant has not sufficiently particularized the financial hardships pleaded to the satisfaction of the court. CORAM The Hon. Denys Barrow, SC, Justice of Appeal Case Name Martinus Jn. Phillip v Philmore Davis [Civ. App. No. 30 of 2007] Appearances: Appellant: Mr. Horace Fraser Respondent: Ms. Lydia Faisal Issue: Application for grounds of appeal to be struck out Result: 1. The Appellant shall file an Amended Notice of Appeal on or before 20th December, 2007.

1.Skeleton Argument in support of The Application to strike out the specified paragraphs in the Notice of Appeal is to be filed by the Appellant on or by 16th November, 2007.

2.Costs of $500 to be paid by the Appellant. Case Name Theodocia Emmanuel v Cletus Hippolyte [Civ. App. No. 36 of 2007] Appearances: Appellant: Ms. Carol Gideon Respondent: Mr. Dexter Theodore Issue: Application for Leave to Appeal Result: 1. Leave to appeal was granted.

3.The judgment dated 25th September, 2007 and entered on 27th September, 2007 was set aside and the claim remitted for hearing by the High Court.

4.Each party was ordered to bear his/her own costs. DIRECTIONS ANGUILLA Case Name Jeffrey A. Carty v. Raphael Edwards [Civ. App. No. 1 of 2004] Appearances: Appellant: Mr. Thomas Astaphan Respondent: In person Issue: Application for security for costs Result: 1. The Appellant shall give security for costs of the appeal in the sum of US$22,000 either in cash or by a bond or guarantee given by a licensed financial institution or insurance company not later than 2nd December, 2007 provided that the parties shall be at liberty to agree on some other form of security.

2.Compliance with the usual requirement for this procedural appeal, including the filing of arguments was dispensed with and the appeal was summarily determined in favour of the Appellant with no opposition by the respondent.

2.Costs of this Application in the sum of EC$500 to the Applicant. Reason: In principle the applicant was entitled to an order for security for costs. ANTIGUA AND BARBUDA Case Name Romaneta Francis v Fitzroy Spaulding [Mag. Civ. App. No. 1 of 2007] Appearances: Appellant: Ms. E. Deniscia Thomas Respondent: Dane Hamilton & Associates Issue: Application for extension of time to appeal Result: The Application was refused. Costs to the Respondent in the sum of $500. Reason: No good reason was given for the delay in applying for the extension of time. Case Name Caribbean Development (Antigua) Ltd. trading as Jolly Harbour Marina v Ian Ferguson et al [Civ. App. No. 15 of 2007] Appearances: Appellant: Watt & Associates Respondent: Hill & Hill Issue: Application for Stay of Execution Result: 1. The Appellant shall pay to the Respondents their costs of $73,087.35 on or before the 19th day of October, 2007 and enter into a bond with a local bank in the sum of $490,746.98 and deposit same with the Registrar on or before the 16th day of November, 2007 and that upon such actions no proceedings will be taken to enforce the Judgment pending the Appellant’s appeal.

2.The Respondents undertake to repay the Appellant the said costs of $73,087.35 if they are unsuccessful in their appeal. Reason: Terms agreed. DOMINICA Case Name Luke John v Curtis George [Mag. Civ. App. No. 10 of 2007] Appearances: Appellant: In person Respondent: In person Issue: Application for extension of time to file Notice of Appeal Result: The Application was adjourned. Reason: Service had not been effected. GRENADA Case Name Sandra Claudia Roberts v Glenford Thomas [Civ. App. No. 19 of 2005] Appearances: Appellant: Mr. Michael J. St. B. Sylvester Respondent: Mr. Anselm B. Clouden Issue: Application for Discharge Order Result: 1. The Application was dismissed without prejudice to any renewed application which the Applicant may wish to make after he has applied to dismiss the appeal for want of prosecution or otherwise, if the Applicant indeed has a proper basis for so applying.

2.No order as to costs. Reason: The proper course for the applicant is to have the entire appeal dismissed, if the factual assertions are true Case Name Volker Stevin Construction Europe B.V v Vos Limited [Civ. App. No. 13 of 2007] Appearances: Appellant: Seon & Associates Respondent: Wilkinson, Wilkinson & Wilkinson Issue: Application for paragraphs to be struck out from Notice of Appeal Result: It was directed that:

2.Skeleton Argument in opposition is to be filed by the Respondent on or by 30th November, 2007.

3.The Application shall thereafter be considered on the written arguments by a single judge of the Court of Appeal. Case Name Dr. The Hon Keith Mitchell v Lloyd Noel et al [Civ. App. No. 23 of 2007] Appearances: Appellant: Mr. A. Olowu Respondent: No appearances Issue: Application for Leave to Appeal Result: 1. Leave to Appeal was granted.

2.Each party shall file an affidavit as to the facts surrounding the entry and the setting aside of the judgment along with its Skeleton Argument.

3.The Appellant shall file a Notice of Appeal on or before 20th November, 2007. Reason: Leave to Appeal was granted notwithstanding the non-service on the Respondent as it was not necessary to hear him. The nature of the Order indicates that the Master made a decision of her own initiative and without an application. In the circumstances, it was the more efficient use of the court’s time to permit this matter to proceed as a procedural appeal. SAINT KITTS & NEVIS Case Name Debbie Gumbs v Stanley Franks [Civ. App. No. 2 of 2007] Appearances Appellant Mr. John Cato Respondent Dublin & Johnson Issue Application for extension of time Result The Application was refused and costs awarded to the Respondent in the sum of $500. Reason The Appellant had failed to satisfactorily explain the delay in the making of the Application. TORTOLA Case Name Multiperils International Inc. v Marple Point Energy Ltd. [Civ. App. No. 26 of 2007] Appearances: Appellant: Farara Kerins Respondent: Maples & Calder Issue: Application for Leave to Appeal Application for security for costs Result: 1. Leave to Appeal was granted.

2.Costs of this Application shall be costs in the appeal.

3.The Notice of Application for Security for Costs shall proceed as follows: (i) The Applicant shall file Skeleton Arguments and not full submissions on or before 20th November, 2007. (ii) The Respondent shall file Skeleton Arguments in opposition and not full submissions on or before 4th December, 2007. (iii) Each party shall be at liberty to file affidavits during the time limited for the filing of its Skeleton Argument. (iv) The Applicant for security for costs shall be heard thereafter by a judge on the written arguments. Reason: The Appellant has a realistic prospect of success on the appeal. MONTSERRAT Case Name Montserrat Electricity Services Ltd. v Ernest Henry [Civ. App. No. 2 of 2007] Appearances: Appellant: Allen Markham & Associates Respondent: In person Issue: Application for Notice of Appeal to be dismissed Result: 1. The Notice of Appeal filed by the Appellant on 23rd July, 2007 was dismissed.

2.Costs to the Applicant in the sum of $500. Reason: Montserrat Electricity had appealed against the interlocutory decision of Octave J dated 16th July, 2007 without first obtaining leave. Section 31(1)(g) of the Supreme Court (Montserrat) Act provides that an appeal from an interlocutory decision may only be brought with leave. As was decided in Oliver MacDonna v Benjamin Richardson Civ. App. No 3 of 2005, an appeal brought without leave where leave is required is a nullity. Case Name Ernest Henry v Montserrat Services Ltd [Civ. App. No. 3 of 2007] Appearances: Appellant: In person Respondent: Allen Markham & Associates Issue: Application for Leave to Appeal out of time Result: 1. The Application for Leave to Appeal out of time was refused.

2.Costs to the Respondent in the sum of $500. Reason: As the decision in Dominica Agricultural and Industrial Development Bank v Mavis Williams Civ. App. No 20 of 2005 delivered on 18 September, 2006 shows, a decision to delay filing an appeal within the time limited by the Rules is usually fatal. The principle is that litigants must comply with the Rules as to the time for taking steps and are not at liberty to decide the time within which a step will be taken. The ultimate object of this principle is to have matters settled in certain time limits and therefore produce certainty in litigation and in the lives of parties. The Application, having been made a year out of time, was accordingly refused.