[1] Emmanuela JN Phillip [2] Patricia Calixte [3] Theresa Moore [4] Francis JN Phillip [5] Martinus JN Phillip [6] Winston JN Phillip Appellants v Martha JN Phillip Respondent [ECSC]
| Jurisdiction | St Lucia |
| Judge | BARROW, J.A.,Denys Barrow, SC,Justice of Appeal |
| Judgment Date | 08 March 2007 |
| Judgment citation (vLex) | [2007] ECSC J0308-1 |
| Court | Court of Appeal (Saint Lucia) |
| Docket Number | CIVIL APPEAL NO.36 OF 2005 |
| Date | 08 March 2007 |
IN THE COURT OF APPEAL
The Hon. Mr. Denys Barrow, SC Justice of Appeal
CIVIL APPEAL NO.36 OF 2005
Monplaisir & Company for the Appellants
Peter I. Foster & Associates for the Respondent
It was because of impecuniosity, the appellants alleged, that they failed to file the record of appeal within the time limited by theCivil Procedure Rules 2000 (CPR 2000). They applied for an extension of time of 120 days within which to file the record. However, before considering the interesting question of how to deal with lack of means as a reason for failing to comply with the rules, I must first be satisfied that it is a genuine reason because the respondent contended that it was not.
The appeal is against a decision of Shanks J (Ag.) given on 29 July 2005 in favour of the respondent on a claim that was commenced 5 years earlier. The claim was brought against the respondent in the names of her mother and some of her siblings claiming the respondent had procured the mother to execute a deed of sale in the respondent's favour by fraud. The appeal was filed in September 2005 and the registrar of the High Court served the notice that the transcript was available on 6th October 2006. Rule 62.12 (3) states that an appellant must file the record of appeal within 42 days of receipt of the registrar's notice. The time for filing therefore expired on 17th November 2006. As the respondent framed it, the appellants did nothing before time expired but waited 19 days after time expired to file the present application, on 6th December 2006, asking for an extension of time.
Initially the application was supported only by the affidavit of a secretary in the office of the appellants' lawyer who stated that their office had notified the third named appellant, who lived in England, of the availability of the transcript and that appellant explained that in addition to having had problems with her telephone she had lost her job because of prolonged illness and needed time to settle her retainer. It was stated in the notice of application that the third named appellant, Mrs. Moore, had assumed responsibility for the appeal.
Subsequently Mrs. Moore filed an affidavit, on 15th January 2007, which amplified these matters. Mrs. Moore stated she was the eldest child and the leader of the family. When she gave counsel instructions to file an appeal counsel told her that a transcript of proceedings would be prepared and a fee would be charged. However, she deposed, "during the time of the preparation of the transcript that is on 7th September 2005 and 26th September 2006 [she] took ill and had to have prolonged leave of absence from work. The nature and extent of [her] illness promoted early retirement from work."
Then her sister died, Mrs. Moore stated, and the main financial responsibility for the funeral fell on Mrs. Moore despite the contributions made by her siblings. This was in addition to the financial responsibility she and her husband carried of the day-to-day care for her mother and paying the mortgage on the house at Rodney Heights, Gros Islet, in which the mother lived. Because of these unforeseen circumstances she was unable to pay the interim retainer due to her lawyer for him to prepare the record of appeal. She said she was making arrangements to pay by instalments and consequently required an extension of 60 days (from the date of her affidavit) to "straighten" her affairs as she was not working and received only a pension as income. She intended to apply for alternative work, which would assist her to pay.
In response the respondent filed an affidavit that stated the fourth named appellant had testified on her behalf at the trial and had informed her that he gave no one permission to include his name in the High Court or appellate proceedings. The respondent told of the steps she took to enforce the judgment given in her favour and to see that the appeal against her proceed with despatch, including monitoring the preparation of the transcript. The respondent's position was that if the appellants could not afford to file the record or pay their solicitors the respondent should "not be left hanging on unable to deal with [her] property until they find the money." This was terribly unfair to her, she stated, and had led to the appeal being not listed for the February 2007 sitting of the court of appeal.
The respondent stated that only Mrs. Moore lived in England and all the other appellants lived in St. Lucia. She related information given to her by another sister (not a party) that made her challenge the truth of Mrs. Moore's one-year illness. She also noted that Mrs. Moore filed no document to support her claim of illness. In addition, the respondent stated Mrs. Moore was about 65 to 69 years of age so the respondent was surprised that Mrs. Moore should say early retirement overtook her.
As regards the death of the sister for whose funeral Mrs. Moore said she bore the "main financial responsibility" the respondent stated that the sister died on 14th December 2006, more than six weeks after the record of appeal was due to be filed. The respondent exhibited a copy of the death certificate to prove the date of death. This could not be the reason for the delay, the respondent noted, and expressed her sadness that Mrs. Moore used their sister's death as a reason for her non-compliance because it was an outright untruth.
Further, the respondent stated, Mrs. Moore did not have main responsibility for the funeral but she, the respondent, had. She paid for everything from the outset, from casket to drinks, a total of $11,229.74. She exhibited a letter that she said was issued by Mrs. Moore covering a payment of $5,000.00 comprising $1,000.00 from each of 5 family members. The respondent also exhibited a receipt issued in her name by the funeral home for $7,630.00 as full payment of funeral expenses. The respondent relied on that letter as confirmation that she, and not Mrs. Moore, was the one who bore the main financial responsibility for the cost of the funeral. The respondent also stated that Mrs. Moore arrived in St. Lucia the day before the funeral, from which one infers that all arrangements would have been made before Mrs. Moore arrived.
The respondent's affidavit ended with the assertions that the reasons given for failing to file the record are untrue and that the delay of 141 days that the appellants are seeking is unfair to her. There are six appellants, the respondent noted, and if none of them has the money to pursue the appeal they should not have filed it. Finally, the respondent said, Mrs. Moore did not even say she had the money but that she would be trying to get a job to get the money and this is uncertain.
The submissions for the appellants began, quite improperly, with statements of fact that should have been given in an affidavit, that Mrs. Moore had since the filing of her affidavit of 16th January 2007 faxed to her lawyers a medical certificate and had since put the lawyers in funds sufficient to acquire the transcript. The submissions stated there was still a balance due from Mrs. Moore. The medical certificate was attached to the submissions. It was dated 9th February 2007 and said that Mrs. Moore was suffering from back pain with sciatica from 2nd September 2006 and was unable to work till 10th October 2006. Rather than supporting Mrs. Moore's claim of illness for a year the medical certificate tended to support the respondent's challenge, in response to which the certificate was submitted, that Mrs. Moore was not ill for the protracted period that she claimed. Apart from imparting the new 'facts' the submissions contained no treatment or interpretation of the facts.
In its treatment of the law the submissions on behalf of the appellants referred to this court's decision inDominica Agricultural and Industrial Development Bank v Mavis Williams1 but only for the fact that the court "decided that relief from sanctions for non-compliance is found in…Rule 26.8" which the submissions reproduced. The relevant portions of rule 26.8 read as follows:
-
(1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be —
-
(a) made promptly; and
-
(b) supported by evidence on affidavit.
-
-
(2) The court may grant relief only if it is satisfied that —
-
(a) the failure to comply was not intentional;
-
(b) there is a good explanation for the failure; and
-
(c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions.
-
-
(3)...
To continue reading
Request your trial