Christian Brown (representing the Estate of Wayne Brown) Appellant v [1] Paul Limrick [2] Theresa Limrick (nee Balkaran) Respondents [ECSC]

• Jurisdiction: St Lucia
• Judge: Mitchell JA,Don Mitchell,Justice of Appeal [Ag.]
• Judgment Date: 31 January 2013
• Judgment citation (vLex): [2013] ECSC J0131-1
• Docket Number: HCVAP 2012/026
• Court: Court of Appeal (Saint Lucia)
• Date: 31 January 2013

[2013] ECSC J0131-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]

HCVAP 2012/026

In the Matter of an Interlocutory Appeal

In the Matter of Part 62.10 of the Civil Procedure Rules

Between:

Christian Brown (representing the Estate of Wayne Brown)

Appellant

and

[1] Paul Limrick

[2] Theresa Limrick (nee Balkaran)

Respondents

Interlocutory appeal — Parties dissatisfied with award made by arbitrator — Allegations of misconduct on part of arbitrator — Claim filed in High Court to set aside arbitral award pursuant to ss. 18 and 19 of the Arbitration Act — Application for High Court claim to be dismissed — Whether there were no reasonable grounds for making claim to High Court

A dispute arose between the appellant and respondents based on a building contract between them. The matter was referred to an arbitrator to be resolved. The respondents, who were dissatisfied with the award made by the arbitrator and alleged misconduct in the carrying out of her functions, filed a claim in the High Court, which claim the appellant applied to have dismissed. The appellant's application was heard and dismissed by the master, who gave directions for the High Court matter to be listed for a first hearing before a judge of the High Court. The appellant appealed the master's decision.

Held: dismissing the appeal with costs to the Limricks assessed at $1,500.00, that:

• 1. The facts stated by the respondents in their statement of claim, if true, do constitute a recognisable claim against the appellant.

• 2. The master rightly held that the High Court should determine the question brought before it before the award made by the arbitrator is enforced.

  IPOC International Growth Fund Ltd. v LV Finance Group Ltd. British Virgin Islands High Court Civil Appeal No. 30 of 2006 (delivered 18^th June 2007, unreported) distinguished.

• 3. No injustice is caused to the appellant in the master leaving the necessary directions related to the fixed date claim to be addressed by the High Court judge. The judge will, at this stage be perfectly positioned to direct the parties.

  Intrust Trustees (Nevis) Ltd. et al v Naomi Darren (also known as Naomi Darabaner) Saint Christopher and Nevis High Court Civil Appeal No. 1A of 2009 (delivered 9^th June 2009, unreported) cited.

1 Mitchell JA[AG.]: Wayne Brown was a contractor who undertook to construct a building at Cap Estate in the Quarter of Gros Islet in Saint Lucia for Paul and Theresa Limrick ("the Limricks"). The contract contained what I may describe as the usual arbitration clause. When Wayne Brown died, the construction work was continued by agreement by his son, Christian Brown ("Mr. Brown"). A dispute arose between Mr. Brown and the Limricks, and they agreed to refer the dispute to an arbitrator. The parties settled on Mrs. Cynthia C. F. Combie Martyr, a prominent attorney of Castries, as their arbitrator ("the Arbitrator"). The Arbitrator gave directions and proceeded to hear the witnesses for the parties. In due course, she made her award ("the Award"). She found the Limricks were liable to pay an amount of EC$124,354.87 to Mr. Brown, and Mr. Brown was obliged to refund an amount of EC$26,835.00, leaving a balance due to him of EC$97,519.87.

Mitchell JA

2 Being dissatisfied with the Award, the Limricks issued a claim form supported by a statement of claim out of the High Court. The Limricks claimed an order to remit for consideration and/or set aside the Award pursuant to sections 18 and 19 of theArbitration Act1 ("the Act"). The claim was that in making the Award the Arbitrator misconducted herself. The statement of claim provided several particulars of alleged misconduct, such as the Arbitrator wrongfully delegated to the expert witness her duty to determine the factual issues; the Arbitrator determined the issues based on legal authorities that were not argued by the parties; the Arbitrator exceeded the jurisdiction granted to her in that she determined a sum due and owing to Mr. Brown for works carried out following the finalising of the accounts when Mr. Brown did not make any claim for that amount; and that the Arbitrator failed to follow the London Court of International Arbitration Arbitration Rules ("the LCIA Arbitration Rules").

3 Mr. Brown applied to the High Court for the claim to be dismissed on a number of grounds, including that it disclosed no reasonable grounds for bringing the case. The application for dismissal was heard by Master Kimberly Cenac-Phulgence ("the Master"), who dismissed the application, gave directions for the claim form to be treated as a fixed date claim form, and remitted the matter to the High Court for it to be listed for a...