The Attorney General of Saint Lucia v Darrel Montrope

• Jurisdiction: St Lucia
• Judge: Pereira CJ
• Judgment Date: 09 July 2020
• Judgment citation (vLex): [2020] ECSC J0709-2
• Docket Number: SLUHCVAP2019/0021
• Court: Court of Appeal (Saint Lucia)
• Date: 09 July 2020

[2020] ECSC J0709-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

SLUHCVAP2019/0021

Between:

The Attorney General of Saint Lucia

Appellant

and

Darrel Montrope

Respondent

Appearances:

Mr. Garth Patterson, QC with him, Mr. Mark Maragh and Mr. Rene Williams for the Appellant

Mr. Anthony Astaphan, SC with him, Dr. Kenny D. Anthony and Mr. Kendrickson Kentish for the Respondent

Mr. Vern Gill for the Public Service Commission (the first-named defendant to the substantive claim in the court below)

Interlocutory appeal — Procedure applicable to claims by way of originating motion — Requirement for leave to amend statement of case — Whether leave was required to amend originating motion — Effect of ambiguous notice of hearing issued by court office — — Whether notice of hearing fixed date for first case management conference or for hearing of preliminary objection — Whether leave is required to amend statement of case where an application to strike out the statement of case has been filed but not determined — Effect of application pursuant to rule 9.7 of the Civil Procedure Rules 2000 — Whether an application to strike pursuant to rule 9.7 operates as a stay of all further proceedings pending the determination of the application — Whether learned judge erred in permitting amendments to statement to case — Whether amendments to statement of case in the interest of justice

The respondent, Darrel Montrope (“Mr. Montrope”), was the Cabinet Secretary for the government of Saint Lucia up until January 2017, when he was removed from his post by a decision of the Governor General and transferred to the office of Permanent Secretary in the Department of Labour. As a consequence of the Governor General's decision, Mr. Montrope filed an originating motion in the High Court against the appellant, the Attorney General, and the Public Service Commission, alleging that his transfer was unconstitutional and unlawful. In response, the Attorney General filed an application under rules 9.7 and 9.7A of the Civil Procedure Rules 2000 (the “CPR”) challenging the court's jurisdiction to hear Mr. Montrope's claim, and seeking an order that the originating motion be struck out (“the application to strike”).

A notice of hearing for 21 ^st September 2017 was issued by the High Court office. The notice did not indicate whether it related to the originating motion or to the application to strike, or to both. On 21 ^st September 2017, the matter came up for hearing before the learned judge. The judge gave directions on the application to strike and adjourned the hearing to a subsequent date. Following this hearing, Mr. Montrope, without seeking the leave of the court, amended and refiled his originating motion. On the next occasion the matter came up, the Attorney General raised a preliminary objection to Mr. Montrope's amendments to his originating motion, and argued that Mr. Montrope required leave to amend his pleadings but that no such leave had been obtained. The judge dismissed the preliminary objection and found that the notice of hearing issued by the High Court office was not a notice of first hearing, and therefore that leave to amend the originating motion was not required as no date had been fixed for the case management conference in the matter; the filing of the application to strike did not prevent Mr. Montrope from amending his originating motion without the court's leave; the filing of the application to strike pursuant to CPR 9.7 did not operate as a stay of the proceedings pending its determination; and that, in any event, it was appropriate in the circumstances to grant Mr. Montrope leave to amend his originating motion. The judge made no findings on the application to strike.

Being dissatisfied with the learned judge's decision, the Attorney General appealed. The issues raised before the Court of Appeal were: (i) whether the notice of hearing issued by the court office related to the originating motion or the application to strike; (ii) whether the filing of an application to strike prevented Mr. Montrope from amending his originating motion without leave of the court; (iii) whether the filing of an application to strike pursuant to CPR 9.7 operates to stay all further proceedings pending the determination of the application; and (iv) if Mr. Montrope required leave to amend the originating motion, whether it was appropriate in the circumstances for the learned judge to have granted leave.

Held: allowing the appeal; setting aside the decision of the learned judge; disallowing the amendments made by Mr. Montrope to his originating motion; striking out Mr. Montrope's amended originating motion; remitting the appellant's CPR 9.7 application to the court below; and making no order as to costs, that:

• 1. CPR 20.1 requires a party to obtain leave to amend its statement of case at any time after the date fixed for the first case management conference, which, in the case of an originating motion, is the date fixed for the first hearing of the motion. As the court office invariably schedules the hearing of applications in accordance with the chronological order of their filing, the learned judge ought to have construed the notice of hearing as the notice of first hearing for the originating motion, which was filed prior in time to the application to strike. In the circumstances, a date had been fixed by the court office for the first case management conference in this matter. Accordingly, Mr. Montrope required the court's leave to properly amend his pleadings, as the date fixed for the first case management conference had already passed by the time he amended his originating motion.

  St. Kitts Nevis Anguilla National Bank Limited v Caribbean 6/49 Limited Saint Christopher and Nevis High Court Civil Appeal No. 6 of 2002 (delivered 31st March 2003, unreported) applied; Comodo Holdings Limited v Renaissance Ventures Limited and Joseph Katz BVIHCMAP2014/0032 (delivered 3rd May 2016, unreported) applied; Rules 8.4, 20.1, 27.2, 56.7 and 56.11 of the Civil Procedure Rules 2000 considered.

• 2. The principle in Index Communication Network Limited v Capital Solutions Limited and others and Maria Agard v Mia Mottley and Anor is that the filing of an application to strike has the effect of prohibiting a party whose pleadings are under attack from amending its pleadings without the court's leave. While it is true that there is no rule in the CPR which imposes such a requirement for leave, if leave to amend were not required, a party seeking to attack or strike out pleadings would have to address any subsequent amendments made without the court's leave, by perhaps mounting subsequent applications if there remained any basis for doing so. Such an approach would sanction one party ‘stealing a march’ on the other by curing defects in its pleadings which the application to strike sought to impugn, and would not be in keeping with the overriding objective. The learned judge ought to have been alive to the unfairness which would result in such circumstances, and accordingly erred by failing to apply the principle set out in the Index and Maria Agard decisions. Applying Index and Maria Agard to this case, even if no date had been fixed for the first case management conference, Mr. Montrope would still have required leave to amend his pleadings, he having sought to do so after the appellant had filed the application to strike.

  Index Communication Network Limited v Capital Solutions Limited and others [2012] JMSC Civ No. 50 followed; Maria Agard v Mia Mottley and Anor Barbados High Court Claim No 1753 of 2015 (unreported) followed; Dr. Ralph E. Gonsalves v Elwardo Lynch et al Saint Vincent and the Grenadines Civil Appeal No. 9 of 2003 (delivered 2nd July 2003, unreported) distinguished; Diamantis Diamantides v JP Morgan Chase Bank and others [2005] EWCA Civ. 1612 considered; Real Time Systems Limited v Renraw Investments Limited and others [2014] UKPC 6 considered.

• 3. It is settled that the effect of an application under CPR 9.7 seeking to dispute the jurisdiction of the court is to stay proceedings pending the determination of the application. Such an application ought to be determined by the court before any other issue arising on a claim is dealt with. The learned judge accordingly erred when he heard and determined Mr. Montrope's oral application to amend his originating motion before he considered the application to strike pursuant to CPR 9.7, which was filed before the oral application was made.

  St. Kitts Nevis Anguilla National Bank Limited v Caribbean 6/49 Limited Saint Christopher and Nevis High Court Civil Appeal No. 6 of 2002 (delivered 31st March 2003, unreported) applied; Diamantis Diamantides v JP Morgan Chase Bank and others [2005] EWCA Civ 1612 distinguished.

• 4. Even if leave of the court was not required to amend Mr. Montrope's originating motion (which it was), the judge ought only to have permitted the amendments if it was in the interest of justice to do so, and if the amendments were not fanciful or served some real purpose. The amendments permitted by the judge were either factually unsubstantiated by Mr. Montrope, expressly found to be fanciful by the learned judge, or outside the scope of the preliminary objection filed by the respondent and therefore served no real purpose. In the circumstances, the learned judge improperly exercised his discretion by permitting the amendments.

  George Allert et al v Joshua Matheson et al GDAHCVAP2014/0007 (delivered 24th November 2014, unreported) applied; Comodo Holdings Limited v Renaissance Ventures Limited and Joseph Katz BVIHCMAP2014/0032 (delivered 3rd May 2016, unreported) applied; Three Rivers District Council and others v Bank of England (No.3) [2001] 2 All...