Frederick v Joseph et Al
| Jurisdiction | St Lucia |
| Judge | Barrow, J.A.,Rawlins, J.A. |
| Judgment Date | 15 January 2007 |
| Neutral Citation | LC 2007 CA 16 |
| Docket Number | Civil Appeal No. 32 of 2005 |
| Court | Court of Appeal (Saint Lucia) |
| Date | 15 January 2007 |
Court of Appeal
Gordon, J.A.; Barrow, J.A.; Rawlins, J.A.
Civil Appeal No. 32 of 2005
Mr. Alvin St. Clair for the appellant.
Mr. Dexter Theodore for the respondents.
Civil Practice and Procedure - Appeals — Time to file record of appeal — Leave to vary order refusing extension of time — Res judicata — Respondent bound by order.
The appellant applies to the full court to vary or discharge the decision of Rawlins, J.A., sitting as a single judge of this court, dismissing the appellant's application for (1) leave to amend the notice of appeal and (2) an extension of time to file and serve the record of appeal. [The power of the court to vary or discharge the decision of a single judge on an application for an extension of time is contained in rule 62.16 (4) of the Civil Procedure Rules 2000] In his judgment dated 16 October 2006 Rawlins, J.A. gave full reasons for the decision he had earlier pronounced.
In a judgment delivered on 22nd July 2005 Shanks, J. (Ag.) ordered the appellant, who was the defendant in the High Court proceedings, to pay damages for assault and trespass to three claimants, now the respondents. The appellant filed a notice of appeal on 19 th August 2005. On 26th January 2006 the Registrar of the High Court notified the appellant's lawyers that the transcript of the notes of evidence was available. Rule 62.12 (3) of the Civil Procedure Rules 2000 (CPR 2000) states that within 42 days of receipt of such notice “the appellant must prepare and file with the court office” six sets of the record comprising the documents specified in the rule.
The time for filing the record of appeal expired on 9th March 2006 without the appellant having filed the record. Instead the appellant had filed an application in the court of appeal to set aside the judgment of Shanks, J. on the ground, which he said he had recently become aware was available to him, that the claim in the High Court had been prescribed and was incapable of being revived, because the claim had not been served within the 3 year period limited by statute for the service of a claim in an action in delict.
The provision upon which the appellant seeks to rely in his appeal and on which he relies in this application is article 2085 of the Civil Procedure Code cap.
of the Revised Laws of St. Lucia, 1957, which states:
“2085. A judicial demand in proper form, served upon the person whose prescription it is sought to hinder, or filed and served conformably to the Code of Civil Procedure when personal service is not required, creates a civil interruption.”
Article 2122 provides that actions for damages resulting from delicts or quasi-delicts are prescribed by three years. The appellant had previously thought, allegedly in common with other members of the legal profession, that the filing of the claim form within 3 years interrupted prescription. He deposed that it was the pronouncement of a recent decision of this court Charles v. Windjammer Landing Company Limited, St. Lucia Civil Appeal No. 7 of 2005 (judgment delivered March 2006) that alerted him to the knowledge that it was the service of the claim form and not its issue alone that interrupted prescription. Counsel for the appellant submitted that a claim that is prescribed is extinguished, it is not merely that the remedy is barred, and counsel for the respondents did not demur. As will be examined later, the position of the appellant is that because the claim was extinguished the judgment of Shanks, J. allowing the claim was a nullity.
Rawlins, J.A. observed that it should have been obvious that a procedural application to set aside a judgment of the High Court was a wholly incorrect procedure and especially so in the face of an existing appeal. No doubt for that reason a single judge of this court had earlier dismissed the procedural application to set aside the High Court judgment; on 28 th March 2006. In the course of the hearing of the instant application counsel for the appellant repeatedly tried, without having applied to vary that decision, to argue that that decision was wrong. In my view that was a wholly impermissible attempt.
On 5th April 2006 the appellant filed an application in which he sought an order extending time (he was now 27 days out of time) within which to file and serve the record of appeal (and to amend the notice of appeal to add the prescription point as a ground of appeal).
When the appellant's application for an extension of time came on for hearing before a single justice of appeal, on 16th April 2006, no one appeared for the appellant and the judge dismissed the application for want of prosecution.
On 9th June 2006 the appellant filed another application to extend time for filing the record of appeal and to amend the grounds of appeal. By now the appellant was 92 days out of time for filing the record. On 13th June 2006 Rawlins, J.A. refused that application.
The reasons for the decision are clearly set out in the judgment of Rawlins, J.A. dated 16 th October 2006. Essentially the justice of appeal decided that the application “was abusive of the process of the court on a compendium of grounds”. [At paragraph [6] of the judgment.] Firstly, the judge pointed to the failure of the appellant to state in the application, as required by rule 11.7 (1) of CPR 2000, the grounds on which it was sought. Secondly, the judge held that filing an identical application to the one dismissed for want of prosecution was an improper procedure and that the appellant should have applied to restore the dismissed application and supported that application with an affidavit giving reasons why the application had not been prosecuted when it came before the court. Thirdly, the judge found that there was inordinate delay in bringing the application without a convincing explanation for the delay.
The judge gave extensive...
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