BBL Ltd v Canouan Resorts Development Ltd

• Jurisdiction: St Vincent and the Grenadines
• Judge: Farara JA
• Judgment Date: 12 January 2021
• Neutral Citation: VC 2021 CA 2
• Date: 12 January 2021
• Docket Number: SVGHCVAP2019/0006
• Court: Court of Appeal (Saint Vincent)

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Gerard St. C. Farara, QC Justice of Appeal [Ag.]

SVGHCVAP2019/0006

Between:

[1] BBL Limited

[2] Irina Savelieva

Appellants

and

[1] Canouan Resorts Development Limited

[2] Canouan Realty Limited

Respondents

Appearances:

Mr. Keith Scotland and Ms. Maia Eustace for the Appellants

Mr. Joseph A. Delves for the First Respondent

Mr. G. Grahame Bollers for the Second Respondent

Interlocutory appeal — — Appeal from refusal of application for relief from sanctions and extension of time to comply with unless order — — Failure to file witness statements in compliance with unless order — — Application for extension of time and relief from sanctions made before sanction took effect — — Whether learned judge erred in dealing with application as one for relief from sanctions and not for extension of time — — Whether application made before sanction takes effect ought properly to be for an extension of time or for relief from sanctions — — Rules 26.1(2)(k) and 26.8 of Civil Procedure Rules 2000 — — Considerations for grant of an extension of time — — Length of delay — — Reasons for delay — — Prejudice to respondents — — Chances of success

In 2010, the appellants filed a claim in the High Court against the respondents for damages for breach of contract and for aggravated damages. The respondents filed a defence and counterclaim, and the appellants filed a reply to counterclaim. In February 2016, at the first case management conference, the parties were ordered to file and serve their witness statements by 30 ^th June 2016. Neither party complied with that order. The appellants accordingly applied to the court for an extension of time. At the second case management conference in October 2017, the parties were granted further time to file their witness statements. Again, the parties did not file their witness statements as ordered. On 4 ^th October 2018, with the consent of the parties, a learned judge of the High Court made an unless order further extending the time to 5 ^th November 2018 for the filing and exchange of the witness statements by the parties, failing which the statement of case of the defaulting party would be struck out.

The respondents filed their witness statements in compliance with the unless order. However, 5 days prior to the time fixed in the unless order, the appellants filed another application seeking to extend the time to file and exchange their witness statements and for relief from sanctions. The application was argued by the parties as one for relief from sanctions under rule 26.8 of the Civil Procedure Rules 2000 (“CPR”) and the judge dealt with the application as such. On 16 ^th November 2018, the learned judge refused the application and concluded that the appellants did not satisfy the requirements under CPR 26.8(2) based on the affidavit evidence and the history of the appellants' prior applications to extend time to comply with directions for the filing and exchange of witness statements.

The appellants appealed and, one day before the hearing of the appeal, filed the witness statements in relation to which the extensions of time were sought. The appeal raised two issues for the Court's consideration: (i) whether the learned judge erred in treating the application as one for relief from sanctions and not for an extension of time to comply with the unless order, the application having been filed before the sanction specified in the unless order took effect; and (ii) whether the learned judge ought to have granted the relief or extension sought by the appellants in the court below.

Held: allowing the appeal; setting aside the order of the learned judge dated 16 ^th November 2018; granting the appellants' application to extend the time for filing the witness statements; deeming the witness statements properly filed; ordering the appellants to serve the witness statements on the legal practitioners for the respondents within 7 days of the delivery of this judgment following which the parties shall exchange witness statements; ordering the appellants to pay the respondents' costs of the application and hearing below, to be assessed by a judge or master of the court, if not agreed within 21 days; and ordering the appellants to pay the respondents' cost in the appeal to be assessed by a judge or master of the court, if not agreed within 21 days, that:

• 1. The court has wide case management powers. These include the power pursuant to CPR 26.1(2)(k) to extend or shorten the time for compliance with any rule, practice direction, order or direction of the court even if the application for an extension is made after the time for compliance has passed and to take any step, give any direction, or make any other order for the purpose of managing the case and furthering the overriding objective pursuant to CPR 26.1(2)(w). On the other hand, CPR 26.7 and 26.8 provide that where a party has failed to comply with a rule, direction or order which specifies a sanction for non-compliance, that sanction takes effect unless the party in default applies for and obtains relief from the sanction. As to the timing of the application for relief from sanctions, the rules do not differentiate between circumstances where the application for relief from sanction is filed before or after the sanction takes effect. However, it is pellucid that rule 26.8 of the CPR applies only where a sanction has already taken effect.

  Rules 26.1(2), 26.7 and 26.8 of the Civil Procedure Rules 2000 considered.

• 2. An application to extend the time for compliance with an order, practice direction or rule which specifies a sanction for non-compliance (including an unless order) made prior to the expiration of the stipulated time for compliance, falls to be considered by the court pursuant to CPR 26.1(2)(k) and the overriding objective, and not CPR 26.8 pertaining to relief from sanctions. This is so even where the application is not heard and determined by the court until after the time stipulated in the order, practice direction or rule for the sanction to take effect. It cannot be correct as a matter of principle, nor is it just and in keeping with the overriding objective of the CPR, for an application for extension or variation of an order (including an unless order), filed before the expiry of the date upon which the sanction would take effect and which, if heard before a sanction bites, would be governed by CPR 26.1(2)(k) and the overriding objective, to be somehow transformed into or treated in accordance with the more stringent requirements of CPR 26.8(2) applicable to relief from sanctions, simply because the court is unable to deal with the application prior to the expiration of the time stipulated for compliance or prior to the sanction taking effect. In this case, the appellants' application for extension of time and relief from sanctions, having been filed before the sanction took effect, therefore fell to be determined as an application for an extension of time. The learned judge accordingly erred in treating with the application as one for relief from sanctions and the basis upon which the learned judge exercised her discretion was plainly wrong.

  Adam Bilzerian v Gerald Lou Weiner and Kathleen Ann Weiner [2016] ECSCJ No. 9, delivered 27 ^th January 2016 considered; Vanroy Romney v Sheridan Smith AXAHCVAP2015/0002 [2016] ECSCJ No. 149, delivered 14 ^th September 2016 applied; Everwarm Limited v BN Rendering Limited [2019] EWHC 2078 (TCC) followed; Robert v Momentum Services Ltd [2003] EWCA Civ. 299 considered; Kaneria v Kaneria [2014] EWHC 1165 (Ch) considered; Hallam Estates Ltd. v Teresa Baker [2014] EWCA Civ 661 considered; Nilon Limited and another v Royal Westminister Investments SA [2015] UKPC 2 applied.

• 3. The court has a wide discretion to extend the time to comply with any order, rule or practice direction, and to do so even where the application to extend time was made after the time for compliance has expired. This discretion is not to be exercised in a vacuum, but in accordance with well-established principles, and with a view to giving effect to the overriding objective. It is trite that in determining an application to extend time or to vary the time imposed in an order of the court for compliance, the court must consider the following factors which are not exhaustive: (i) the length of the delay, (ii) the reasons for the delay, (iii) any prejudice to the respondent; and (iv) whether the applicant's pleaded case is, in any event, a hopeless one — the chances of success.

  Carleen Pemberton v Mark Brantley [2011] ECSCJ No. 229, delivered 14 ^th October 2011 applied.

• 4. While there is not much to commend the cogency and persuasiveness of the appellants' reasons why they would not have been in a position to comply with the unless order, this Court must take a broad view of the appellants' application and evidence in determining whether it ought, in the exercise of its discretion de novo, to permit the extension sought by the appellants. In doing so, the Court took into account that (i) no trial date had been fixed at the time, and therefore a further extension of time for the appellants to comply with the unless order would have had no impact on any trial date; (ii) there are profound consequences to be visited upon the appellants if an extension of time for compliance with the unless order is not granted; (iii) the promptitude with which the appellants applied to the court to extend time (i.e. before the stipulated time expired); and (iv) that the respondents themselves had failed to comply with previous orders of the High Court in this matter, and only complied when the unless order was made. In all the circumstances, the justice of the case requires that this Court grants the...