C.O. Williams Construction (ST. Lucia) Ltd Applicant/Defendant v Inter-Island Dredging Company Ltd Respondent/Claimant [ECSC]

• Jurisdiction: St Lucia
• Judge: EDWARDS, J.A.,Ola Mae Edwards,Janice M. Pereira,Davidson Kelvin Baptiste,Justice of Appeal
• Judgment Date: 19 March 2012
• Judgment citation (vLex): [2012] ECSC J0319-1
• Court: Court of Appeal (Saint Lucia)
• Docket Number: HCVAP 2011/017
• Date: 19 March 2012

[2012] ECSC J0319-1

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice M. Pereira Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCVAP 2011/017

Between:

C.O. Williams Construction (ST. Lucia) Limited

Applicant/Defendant

and

Inter-Island Dredging Co. Ltd.

Respondent/Claimant

Civil appeal — Application for leave to appeal order of learned judge denying application for extension of time to file defence — Whether application for relief from sanctions must accompany application for extension of time — Rules 26.7, 26.8, 27.8 and 26.9 of the Civil Procedure Rules 2000 — Criteria to be satisfied in making application for extension of time where there is no express sanction for non-compliance with rule, practice direction, statutory provision or court order which prescribes time limit

C.O. Williams Construction (St. Lucia) Limited ("COW") and Inter-Island Dredging Co. Ltd. ("IDC") were the parties to a dredging contract which IDC contended had been unlawfully terminated by COW on 31^st March 2009. IDC claimed a sum of US$677,646.82 for costs incurred and monies due and owing under the contract, as well as damages, interest and costs for breach of contract. Proceedings were served on COW and COW duly acknowledged service, stating that it intended to defend the claim. Two days before the expiration of the 28 days for service of COW's defence, counsel for COW wrote to counsel for IDC requesting further information to facilitate the preparation of the defence. They sought the consent of IDC to a 42 day extension of time to file their defence (which would have included the 21 day period within which IDC had to reply to the request for further information). IDC denied COW's request, resulting in COW's application to the court for certain orders, including an extension of time to file their defence. The learned judge denied the application, on the ground that a separate application for relief from sanctions should have accompanied the application for extension of time.

COW appealed to this court, challenging the approach of the learned judge in her application of the case law which she relied on in arriving at her decision. Additionally, COW contended that the two affidavits filed in support of their application for an extension of time satisfied the "check-list" for applications for relief from sanctions in sub-rules 26.8(2) and (3) of the Civil Procedure Rules 2000 ("CPR 2000"), and the learned judge failed to consider this in determining whether their application should be granted.

Held: granting the application for leave to appeal and treating that application as the appeal, allowing the appeal, setting aside paragraphs 2 and 3 of the order of the learned judge, and giving the applicant 30 days from the date of delivery of this judgment within which to file its defence, that:

• 1. The learned judge erred in refusing to consider the merits of the application for extension of time because no application for relief from sanctions was filed.

• 2. CPR 26.7(2) admits of only one interpretation and extending this rule to apply to CPR 10.3(1) and other factual situations which fit uncomfortably under the rule, having regard to the scheme of CPR 2000, produces results which are untenable and inconsistent with the overriding objective.

• 3. CPR 27.8 stipulates the circumstances that must exist for a party to apply for an extension of time and relief from sanctions. That party would have to be seeking to vary a date which the court has fixed for: a case management conference; or for a party to do something where the order specifies a sanction for non-compliance; or for pre-trial review, return of a listing questionnaire, or a trial; or for the variation of a date set by the court or the rules for doing any act which will affect any of the previously mentioned dates. It is only where those circumstances exist and the party seeks to vary a date set in the timetable after the deadline date has passed that CPR 27.8(4) requires that the party must apply for an extension of time and relief from the sanction to which the party has become subject under these Rules or any court order.

• 4. The circumstances envisaged in CPR 27.8 did not exist for the applicant. Neither was there any express sanction to which the applicant had become subject under CPR 2000 or any court order. The applicant would be subject to an implied sanction on the authority of Sayers v Clarke Walker (a firm), only where the learned judge found the case to be complex; and the criteria to be applied to the application for extension of time in that case would be left to the discretion of the judge depending on how the judge saw it.

  Sayers v Clarke Walker (a firm) [2002] EWCA Civ 645 applied.

• 5. The instant case did not present any complex circumstances as to cause an invocation of CPR 26.8 where the Sayers approach is applied. In such a case the learned judge would be exercising her case management powers to extend time under CPR 26.1(2)(k) only, and not under CPR 27.8(4). In that regard, CPR 26.9 would be applicable. The learned judge would be making an order to put matters right under CPR 26.9(3) in the absence of any stated consequence of failure stipulated by a rule, practice direction, or order.

• 6. An application for extension of time to perform an interlocutory step in the proceedings prior to a scheduled case management conference, would require different considerations and a different approach from an application for extension of time involving a failure to comply with case management directions, or a failure to file an appeal against a decision on the merits after a trial, or a failure to make a timely application for leave to appeal an interlocutory decision.

• 7. The absence of express criteria in the Rules for applications for extension of time falling outside of the purview of CPR 26.7(2) and (3), CPR 26.8, and CPR 27.8(3) and (4), does not mean that there is no established criteria for determining applications for extension of time.

• 8. The Court has a very broad discretionary power under CPR 26.9 which cannot be exercised in a vacuum or on a whim, but must be exercised judicially in accordance with well-established principles. Overall, in the exercise of this discretion, the court must seek to give effect to the overriding objective which is to ensure that justice is done as between the parties. On applications for extension of time generally, where no sanction is specified for failure to comply with the rule which prescribes the relevant time limit, the court, in the exercise of its discretion, will consider: (1) the length of the delay; (2) the reasons for delay; (3) the chances of the appeal succeeding if the extension is granted; and (4) the degree of prejudice if the application is granted.

  Carleen Pemberton v Mark Brantley Saint Christopher and Nevis HCVAP 2011/009 (delivered 14^th October 2011, unreported) followed; John Cecil Rose v Anne Marie Uralis Rose Saint Lucia Civil Appeal No. 19 of 2003 (delivered 22^nd September 2003, unreported) followed.

EDWARDS, J.A.

1 This is an application filed on 24^th June 2011 for leave to appeal against a case management decision of the learned judge. The applicant/defendant, C.O. Williams Construction (St. Lucia) Limited ("COW"), filed an application on 16^th December 2010, which the judge heard on 8^th June 2011. In this application, COW sought an order to compel the respondent/claimant, Inter-Island Dredging Co. Ltd. ("IDC"), to comply with the Request for Further Information, which was filed and served on IDC on 9^th December 2010. The deadline sought for compliance was on or before 30^th December 2010. COW also asked that the learned judge grant 21 days extension of time for COW to file its defence. The 21 days extension of time sought was to run from the date that IDC filed and served its answers to COW's request. COW's application for leave to appeal relates to that part of the learned judge's order refusing an extension of time.

2 The rule governing extension of time exists in Rule 26.1(2)(k) of the Civil Procedure Rules 2000 (" CPR 2000") which states:

"26.1(2) Except where the these rules provide otherwise, the court may —

…

(k) 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."

3 CPR 2000 does not specify any criteria for granting an application for extension of time. However, CPR 1.2 states that "The court must seek to give effect to the overriding objective when it — (a) exercises any discretion given to it by the Rules; or (b) interprets any rule."

4 The overriding objective is defined by CPR 1.1. This rule states:

"The overriding objective

1.1

• (1) The overriding objective of these Rules is to enable the court to deal with cases justly.

• (2) Dealing justly with the case includes —

  • (a) ensuring, so far as is practicable, that the parties are on an equal footing;

  • (b) saving expense;

  • (c) dealing with cases in ways which are proportionate to the —

    • (i) amount of money involved;

    • (ii) importance of the case;

    • (iii) complexity of the issues; and

    • (iv) financial position of each party;

  • (d) ensuring that it is dealt with expeditiously; and

  • (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

The Order of the Judge

5 It is important to set out in full the learned judge's Order, as it referred to a decision of this Court which has frequently and fundamentally guided the approach of the Courts in our jurisdiction in determining applications for extension of time. While the correctness of that authority has not been challenged, the approach of the learned judge in applying this authority is...