Eastern Caribbean Collective Organisation for Music Rights (Ecco) Inc. (Formierly Hewanorra Musical Society Ltd HMS Inc.) Applicant v Megi-Plex Entertament Corporation Respondent [ECSC]

JurisdictionSt Lucia
CourtCourt of Appeal (Saint Lucia)
JudgeMichel JA,Mario Michel,Justice of Appeal
Judgment Date10 September 2013
Judgment citation (vLex)[2013] ECSC J0910-2
Date10 September 2013
Docket NumberSLUHCVAP2013/0012
[2013] ECSC J0910-2

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Mario Michel Justice of Appeal

SLUHCVAP2013/0012

Between:
Eastern Caribbean Collective Organisation for Music Rights (Ecco) Inc.
(Formierly Hewanorra Musical Society Limited HMS Inc.)
Applicant
and
Megi-Plex Entertament Corporation
Respondent

Civil appeal — Interlocutory order — Application made in accordance with rule 62,5(3) of the Civil Procedure Rules 2000 — Application for extension of time within which to file notice of appeal — Whether Court should exercise its discretion to grant extension of time

Held: granting the application for an extension of time and ordering the applicant to pay the respondent's costs to be assessed if not agreed, that:

  • 1. In determining applications for extension of time for filing appeals, unless the case is of a complex nature like Sayers v Clarke Walker, the Court is not required to apply the provisions of rule 26.8 of the CPR, C.O. Williams Construction (St. Lucia) Limited v Inter-Island Dredging Co. Ltd Saint Lucia High Court Civil Appeal SLUHCVAP2011/0017 (delivered 19th March 2012, unreported) followed,

  • 2. The exercise of the Court's discretion to grant or refuse an application for an extension of time to appeal is fettered by a consideration of the following factors; (1) the extent of the delay in filing the notice of appeal, (2) the reason(s) for the delay, (3) the chances of the appeal succeeding if the extension of time is granted and (4) the degree of prejudice to the respondent if the extension is granted. In the present case, the delay does not appear to be inordinate, there does appear to be a valid reason for the delay, the applicant appears to have more than a fanciful chance of succeeding in the appeal if granted an extension of time to file the notice of appeal, and there does not appear to be any particular prejudice which would be occasioned to the respondent if the extension is granted, and so this Court will exercise its discretion and grant an extension of time to the applicant to file its notice of appeal.

John Cecil Rose v Anne Marie Oralis Rose Saint Lucia High Court Civil Appeal SLUHCVAP2003/0019 (delivered on 22nd September 2003, unreported) followed.

Michel JA
1

On 8th October 2010, the applicant filed a claim against the respondent concerning an alleged breach of copyright.

2

On 14th February 2013, Justice Rosalyn Wilkinson struck out the applicant's claim for failing to disclose any reasonable grounds for bringing the claim against the respondent (the "strike out order").

3

On 28th February 2013, the applicant filed an application seeking the leave of the High Court to appeal against the strike out order. The application for leave was granted by Wilkinson J on 15th March 2013, without a hearing (the "leave order").

4

On 24th April 2013, the applicant filed an application, with affidavit in support, seeking the leave of the Court of Appeal to file a notice of appeal after the expiration of the period of time prescribed by the rules. In the application and affidavit, the applicant claimed that it only received notice of the leave order on 17th April 2013, which was a date beyond the last date for the filing of the notice of appeal against the strike out order.

5

The application for leave to file the notice of appeal out of time was set down by this Court for consideration before a single judge of the Court of Appeal in Saint Lucia on 20th June 2013, and on 31st May 2013 counsel for the applicant and for the respondent were so notified.

6

On 19th June 2013, counsel for the respondent filed and served notice of opposition by the respondent to the application for leave to appeal out of time. On that same date, written submissions with authorities were filed by the applicant and served on the respondent.

7

On 20th June 2013, an affidavit in answer to the applicant's application and affidavit was filed and served on behalf of the respondent.

8

A hearing of the application to receive oral submissions from counsel for the parties was fixed for 21st June 2013, on which date an affidavit in reply to the respondent's affidavit in answer was filed on behalf of the applicant.

9

On 21st June aforesaid, there was a hearing in Chambers before me as a single judge of the Court of Appeal, at which hearing counsel for both parties made strong oral submissions and at the conclusion of which I gave leave to both parties to file written submissions on or before 31st July 2013, Submissions were filed on behalf of both parties on 31st July.

10

The application under consideration is in fact an application for leave to file a notice of appeal against the strike out order after the expiration of the period of time prescribed by theEastern Caribbean Supreme Court Civil Procedure Rules 2000 (the "CPR").

11

The strike out order is an interlocutory order, as defined by rule 62.1(3) of the CPR, because the order would not be determinative of the issues which arose on the claim whichever way the learned judge had ruled. It would certainly not havebeen determinative of the issues which arose on the claim if the judge had denied the application to strike out the claim. The order does not, therefore, pass the application test set in rule 62.1(3)(b) of the CPR and the intended appeal is accordingly an interlocutory appeal as defined by rule 62.1(2).

12

The intended appeal being interlocutory, the applicant sought and obtained the leave of the High Court to appeal against the strike out order.

13

The next step in the appeal process would be the filing of the notice of appeal, which — in accordance with rule 62.5(1) — must be within 21 days of the date when leave was granted, and not within 14 days as erroneously sworn to by Mr. Daniel Francis in his affidavit of 24th April 2013. By the time that Mr. Francis was swearing to this affidavit, rule 62.5 of the CPR had been amended nearly 18 months previously. Leave having been granted in this case on 15th March 2013, the notice of appeal should have been filed by 8th April 2013, and not 30th March 2013 as per Mr, Francis's affidavit, which latter date would have been incorrect in any event considering that it fell on a Saturday.

14

I pause to urge young attorneys like Mr. Daniel Francis to be a little more circumspect in dealing with such matters, especially where as in the present case — you end up swearing on affidavit to matters which are factually incorrect and which could so easily have been averted by the dotting of your i(s) and crossing of your t(s) before affixing your signature.

15

Since no notice of appeal was filed by 8th April, if the applicant wishes to proceed with its appeal it must obtain an extension of time within which to file the notice of appeal.

16

Rule 62.5(3) of the CPR provides that the Court of Appeal may grant an extension of time on an application made under Part 11 of the GPR. Such an application was made on 24th April 2013, and the respondent was served with the notice of application on 7th June. Although rule 62.5(3) provides that the application may be determined without a hearing, by notice dated 29th May 2013 the parties were notified that the application would come up for consideration before a single judge of the Court of Appeal on 20th June 2013. As previously stated, counsel for the parties were later invited by the Court to make and did make oral submissions to the Court on 21st June, followed by written submissions on 31st July.

17

Both the oral and written submissions of the parties focussed primarily on rule 26,8 of theCPR and cases decided in accordance with this rule.

18

Notwithstanding the erudite submissions of counsel, I do not regard the application before me to be an application for relief from sanctions to be determined in accordance with...

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