Cage St Lucia Ltd and Treasure Bay StLucia Ltd v The Gaming Authority and Others

1
SAINT LUCIA
IN THE COURT OF APPEAL
HCVAP 2011/045
In the matter of part 56 of the
Civil Procedure Rules 2000
and
In the matter of the Gaming
Control Act Cap 13:13 of the
Revised Laws of Saint Lucia,
2001
and
In the matter of the National
Lotteries Authorities Act Cap
13:20 of the Revised Laws of
Saint Lucia, 2001
BETWEEN:
CAGE ST. LUCIA LIMITED
Respondent
and
TREASURE BAY (ST. LUCIA) LIMITED
Applicant
and
[1] THE GAMING AUTHORITY
[2] THE ATTORNEY GENERAL OF SAINT LUCIA
[3] THE NATIONAL LOTTERIES AUTHORITY
Respondents
Before:
The Hon. Mde. Ola Mae Edwards Chief Justice [Ag.]
The Hon. Mr. Don Mitchell Justice of Appeal [Ag.]
The Hon. Mde. Gertel Thom Justice of Appeal [Ag.]
2
Appearances:
Mr. Garth St. E. W. Patterson, QC, instructed by Nicholas John & Co. for the
Respondent, CAGE St. Lucia Ltd.
Mr. Anthony Astaphan, Senior Counsel, Ms. Renee St. Rose with him, for the
Applicant, Treasure Bay (St. Lucia) Ltd.
Ms. Esther Greene-Ernest for the Gaming Authority with a watching brief
Mr. Dwight Lay for the Attorney-General of Saint Lucia with a watching brief
Mr. Vern Gill for the National Lotteries Authority with a watching brief

2011: December 14;
2012: January 23.

Civil appeal – Application to review the decisions of two single judges of the Court of
Appeal – Whether the respondent to an application for leave to appeal is entitled to oppose
the application – Whether the respondent to an application for leave to appeal may invoke
the jurisdiction of the Court of Appeal to review the decision of a single judge and consider
the merits of the proposed appeal, where the single judge granted leave to appeal to the
applicant without hearing the respondent – Whether the respondent whose counsel was
present and heard by a single judge at a further consideration of the applicant’s application
for a stay of proceedings may apply to the full court for the decision granting stay to be
revoked, varied or discharged
This is an action arising from an application made to a High Court judge by CAGE St.
Lucia Limited (“CAGE”), to be joined as a party to judicial review proceedings which were
ongoing in the court below. The parties to the High Court proceedings were Treasure Bay
(St. Lucia) Limited (“Treasure Bay”), and The Gaming Authority, the Attorney General and
The National Lotteries Authority. CAGE claimed a right to be made a party to the
proceedings, because they included claims for injunctions and orders against CAGE
which, if granted, would have a significant, negative impact on CAGE’s business.
The learned judge dismissed CAGE’s application and awarded costs to Treasure Bay.
CAGE applied without notice to the Court of Appeal for leave to appeal that ruling and for a
stay of execution and a stay of proceedings. Treasure Bay duly filed a Notice of Objection
to the application for leave.
CAGE’s application for leave to appeal came on before a single judge of the Court of
Appeal for determination on paper and without an oral hearing. This judge was not aware
of Treasure Bay’s filed Notice of Objection, which had not yet formed part of the court file.
CAGE’s application for leave was granted, along with a temporary stay pending an inter
partes hearing at a later date. At the subsequent date, another judge of the Court, after
hearing both CAGE and Treasure Bay, made an order further staying the judicial review
proceedings in the High Court pending the hearing of the appeal. Treasure Bay then
3
made the present application to the Full Court to vary, revoke or discharge both the orders
of the single judges.
Held: dismissing the application to revoke, vary or discharge the order of Pereira J.A.
which granted CAGE leave to appeal the order of Wilkinson J.; setting aside the order of
Baptiste J.A. which stayed the judicial review proceedings in the court below; and making
no order as to costs, that:
1. CPR 62.16(A), which gives the Court jurisdiction to vary, discharge or revoke any
order, direction or decision given by a single judge, applies only to interlocutory
orders made within the context of a pending appeal. In the instant case, until
leave was granted, there was no appeal in existence. The order granting leave to
appeal was therefore not an interlocutory order made during the pendency of an
appeal.
2. An application for leave to appeal is essentially a “without notice” procedure.
Applications for leave to appeal are not strictly interlocutory applications and
therefore the practice of the Court of Appeal Registry serving notices requesting
“compliance with applicable requirements of Practice Directions Nos. 2 and 3 of
2008” on parties named as applicants and respondents who incidentally are the
parties in the court below is misleading, as it erroneously induces a respondent to
file a notice of opposition and other documents, contrary to the procedure
envisaged under CPR 62.2. Treasure Bay was not entitled to file a notice of
objection or otherwise to oppose CAGE’s application for leave to appeal.
Jolly v Jay [2002] All E.R. (D) 104 cited.
3. The application of Treasure Bay which called into question the order of the single
judge, Pereira J.A., was effectively appealing the order in circumstances which
were prohibited by English law, regardless of whether the exercise of the Court’s
discretion had been referred to as a reconsideration, review, or appeal. The
English Civil Procedure Rules 52.9(2) and 52.16(6)(a) provide no authority for
saying that the Court of Appeal has jurisdiction to permit a respondent to challenge
the grant of unlimited permission to appeal.
4. With no Notice of Appeal having been filed subsequent to the order granting
CAGE leave to appeal, there was no appeal pending before the Court of Appeal
when the order which stayed the judicial review proceedings was made.
Consequently, this court had no jurisdiction to make that order, which would be a
nullity.
Rule 62.16(1)(b) Civil Procedure Rules 2000 applied.
4
DECISION
[1] MITCHELL, J.A. [AG.]: This is an application to the Full Court to review the
decisions of two single judges of the Court concerning an application for leave to
appeal in judicial review proceedings. The facts are not important at this stage,
but they may be summarised in this way. CAGE St. Lucia Limited (“CAGE”), a
company which was not a party to the judicial review proceedings between
Treasure Bay (St. Lucia) Limited (“Treasure Bay”) and the respondent government
authorities, applied to a High Court judge to be joined as a party to the judicial
review proceedings. CAGE claimed a right to be made a party to the proceedings
because the proceedings, although they are for judicial review of the actions of
public authorities, include claims for injunctions and orders against CAGE which, if
granted, would impact on CAGE’s business. CAGE urged that it would suffer
catastrophic loss, including the closure of its business, if the reliefs claimed in the
judicial review proceedings were granted.
[2] CAGE applied to be joined as a party to the proceedings under Part 19 of the Civil
Procedure Rules 2000 (“CPR”) which governs the “addition and substitution of
parties” in the High Court. In particular, CPR 19.3(2) provides that:
“(2) An application for permission to add, substitute or remove a party may
be made by –
(a) an existing party; or
(b) a person who wishes to become a party.”
Part 56 CPR governs judicial review proceedings. It does not contain any rule for
joining a party to the judicial review proceedings. Instead, CPR 56.11(2)(a)
provides that at the first hearing of the claim:
“(2) … the judge may –
(a) allow any person or body appearing to have sufficient interest in
the subject matter of the claim to be heard whether or not served
with the claim form.”
5
Additionally, CPR 56.13(1) provides that:
“(1) At the hearing of the application the judge may allow any person or
body which appears to have a sufficient interest in the subject matter of
the claim to make submissions whether or not served with the claim form.”
[3] The judge dismissed CAGE’s application under Part 56 CPR to be joined as a
party to the judicial review proceedings and awarded costs of $7,500.00 in favour
of Treasure Bay. She held that CAGE was sufficiently entitled to be heard at the
trial pursuant to Part 56 CPR and that there was no power to join CAGE to the
judicial review proceedings as a party under CPR 19.3. CAGE applied to the
Court of Appeal for leave to appeal that ruling and for a stay of execution and a
stay of proceedings. This application was served by CAGE on Treasure Bay.
Treasure Bay duly filed a Notice of Objection to these Court of Appeal
proceedings.
[4] CAGE’s application for leave to appeal came on before a single judge for
determination on paper and without an oral hearing. She was not aware of
Treasure Bay’s filed Notice of Objection which had not as yet made its way to the
court file. She granted CAGE’s application for leave, and granted a temporary
stay pending an inter partes hearing at a later date. At the subsequent date,
another judge of the Court, after hearing both CAGE and Treasure Bay, made an
order further staying the judicial review proceedings in the High Court pending the
hearing of the appeal. It is these two orders that Treasure Bay has applied to the
Full Court to review. Treasure Bay’s application to the Full Court is to vary, revoke
or discharge the orders of the single judges of the Court previously described.
[5] The order made in the High Court by the learned trial judge was an interlocutory
order. That is why CAGE applied for leave to appeal. Applications for leave to
appeal are governed by CPR 62.2 as amended. This provides:
“62.2 (1) Where an appeal may be made only with the leave of the
court below or the court, a party wishing to appeal must
apply for leave within 14 days of the order against which
leave to appeal is sought.
6
(1A) Where an application for leave has been refused by the
court below, an application for leave may be made to the
court within 7 days of such refusal.
(2) The application for leave to appeal must be made in
writing and set out concisely the grounds of the proposed
appeal.
(3) An application for leave to appeal made to the court may
be considered by a single judge of the court.
(4) The judge considering an application under Rule 62.2(3)
may give leave without hearing the applicant.
(5) However if the judge considering an application under
Rule 63.2(3) is minded to refuse leave he or she must
direct –
(a) that a hearing be fixed; and
(b) whether that hearing is to be by a single
judge or the court.”
[6] There is no provision in CPR 62.2 on an application for leave to appeal for notice
of the application to be served on the proposed respondent. Compare this with
CPR 62.7 which governs notices of appeal. This provides expressly that the
notice of appeal must be served on all the parties. However, there has apparently
grown up a practice in the court office of serving all parties with a Notice that the
application will be considered by a single judge on a particular date. The notice
requests the parties to comply with Practice Directions 2 and 3 of 2008, which
relate, among other things, to the filing of submissions. This practice no doubt
ensures that parties are made aware of applications that affect their interest. It
also provides an encouragement for parties to the proceedings to object to
applications for leave to appeal at this early stage.
[7] Applications for leave to appeal are generally in the nature of ex parte or without
notice proceedings. There is no provision in the Rules for the respondent or any
other person to be given notice of the application for leave. The approach
adopted by the English Court of Appeal in Jolly v Jay1 commends itself. There,
the court observed:
1 [2002] All E.R. (D) 104; [2002] EWCA Civ 277.
7
“Unless directed to do so by the court, a respondent should only file
submissions at the stage of an application for permission to appeal if they
are addressed to the point that the appeal would not meet the relevant
threshold test or tests, or if there is some material inaccuracy in the papers
placed before the court, such that the court might reasonably be led to
grant permission when it would not have done so if it had received
accurate information. If the respondent wishes to advance submissions
on the merits of the appeal, the appropriate time to do so is at the appeal
itself, if the matter gets that far. In general it is not desirable that
respondents should make submissions at the permission stage, since it is
essentially a ‘without notice’ procedure, and this may well lead to delay in
dealing with the permission application and take up the resources of the
appeal court unnecessarily.”
So, without deciding the issue, it appears that applications for leave to appeal are
intended by the Rules to be a “weeding out” process, to ensure that unmeritorious
appeals are not filed. They should not normally be intended to be contested at
such an early stage. Respondents and other parties will have their opportunity to
make their points and to object to the appeal when the appeal comes on for
hearing.
[8] Part 52 of the UK Civil Procedure Rules governs appeals to the UK Court of
Appeal, while our rule is CPR 62.2. In the Eastern Caribbean, the previous CPR
62.16(4) which provided that an order made by a single judge of the court may be
varied or discharged by the court has been deleted and replaced by the
Amendment Rules of October 2011 previously referred to. The new CPR 62.16(A)
reads:
“62.16(A) Any order, direction or decision made or given by a single judge
may be varied discharged or revoked by two judges where the order,
direction or decision relates to an appeal of a class which may be heard
and determined by two judges and by the full court in any other case.”
The jurisdiction of the Full Court to review an order made by a single judge of the
court is based on the inherent jurisdiction of the court. The court as a matter of
law and practice has always had jurisdiction to review any decision of a single
judge on any matter relating to a pending appeal. CPR 62.16(A) applies only to
8
interlocutory orders made within the context of a pending appeal. The language of
the Rule speaks to an order made or given by a single judge which “relates to an
appeal”. The order granting leave to appeal was not an interlocutory order made
during the pendency of an appeal.2 Until leave was granted, there was no appeal
in existence. It was therefore an order made prior to an appeal. The law on the
mounting of a challenge to the grant of leave to appeal to the Court of Appeal
remains as it was before. As George-Creque J.A. said in Danone Asia Pte. Ltd.
and Others v Golden Dynasty Enterprise Ltd. and Others:3
“[12] From a comparison of those provisions appearing in 52.16 [UK] it
becomes apparent that those provisions reflect a wholly different
regime than those governing our CPR, and I, for my part, would
be reluctant to import the English CPR 52.16 into our practice as
this may lead to inconsistency with certain provisions of our CPR
as well as introduce novel features not contemplated by any
provisions of our rules. CPR does not provide for court officers.
The comparable provisions in our law of the English CPR 52.16
are CPR 62.16 and 2.5(2) and (3) which set out our own
personnel regime in terms of who is empowered to do what,
which is clearly different from the English counterpart. Further,
English CPR 52.3 which governs permission to appeal must also
be read in the context of English CPR 52.9 which deals with the
power of the court to strike out appeals and set aside permission
to appeal. The English CPR 52.9(2) says that this power will only
be exercised where there is a compelling reason (for example
where the appellant misled the court on the application for
permission made without notice) for so doing. Also, it is normally
the case that at the permission stage the respondent is not
engaged and is therefore not prejudiced by the grant or refusal of
leave and is not exposed to unnecessary costs. The refusal of
leave would certainly be of no concern whatsoever to a potential
respondent. The permission stage, it is said, serves as a useful
filter in weeding out unmeritorious appeals without the heavier
costs consequences flowing from an appeal in the normal course.
CPR 62.2(4) provides for the granting of leave virtually in
summary form. However, 62.2(5), in my view, provides for the
likelihood of refusal and the procedure which should follow
although not couched in mandatory terms. It says that if the judge
2 Christenbury Eye Center and Others v First Fidelity Trust Limited and Others, Saint Christopher and Nevis
HCVAP 2007/014, (delivered 19th November 2008, unreported) per Barrow J.A. at para. 5.
3 Territory of the Virgin Islands HCVAP 2009/002 (delivered 28th September 2009, unreported) at para. 12.
9
is minded to refuse leave then he/she may direct a hearing in
chambers before a single judge or by the court. When these two
rules are considered together, it becomes clear that they seek to
provide to an appellant who may potentially be refused leave, an
avenue and opportunity for arguing fully the merits of his case for
leave before the full court in keeping with the broadest principles
of natural justice. To my mind, it would be a counsel of prudence
for a single judge, once minded to refuse leave, to put 62.2(5) to
good use. Accordingly, I do not consider that a lacunae [sic]
exists warranting the importation of the English CPR 52.16. In my
view, it was simply not intended by the framers of CPR to provide
for a challenge by a respondent to the grant of leave by seeking
to overturn the grant of leave based on the strength of the
appellant’s case.”
[9] The application before us is Treasure Bay’s application to set aside the two
previously described orders of single judges of the Court, granting CAGE leave to
appeal and staying the judicial review proceedings in the court below. There is no
provision in CPR 2000 that is equivalent to CPR 52.9 [UK], which expressly
confers jurisdiction on the English Court of Appeal to set aside an order granting
permission to appeal. Treasure Bay was not entitled to file a notice of objection or
otherwise to oppose CAGE’s application for leave to appeal. An application for
leave to appeal is essentially a “without notice” procedure. It might be better if in
future the court office did not automatically send notice to respondents of
applications for leave to appeal, as this procedure is not only not authorised by the
Rules, but might send the wrong signal to respondents.
[10] I have had the opportunity to read the judgment of my learned sister Edwards J.A.,
and in particular the order which concludes her judgment, with which I respectfully
agree.
Don Mitchell
Justice of Appeal [Ag.]
10
[11] EDWARDS, C.J. [AG.]: I have had the opportunity to read the judgment of my
brother Mitchell J.A. [Ag.]. I agree with his statement of the facts as to what took
place in the court below, and his conclusions at paragraph 9 of his decision on the
result of the application as it affects the Order granting leave to appeal. My
brother has not addressed Treasure Bay’s application as it relates to the Order
granting stay of the judicial review proceedings. Consequently, I state my own
views concerning the application we heard. There is no need for me to repeat
facts that my brother has established in his decision except where it is necessary.
[12] We heard arguments on 12th December 2011, on the application of Treasure Bay
(St. Lucia) Limited (“Treasure Bay”) made under CPR 62.16. This application
seeks to revoke vary or discharge two orders made by single judges on the
application of CAGE St. Lucia Ltd (“CAGE”) for leave to appeal the interlocutory
order made by Wilkinson J. on 7th November 2011, and a stay of the judicial
review proceedings in the High Court pending the determination of the appeal.
The application of Treasure Bay was not supported by any affidavit evidence.
[13] The application of CAGE for leave to appeal and stay was filed on 17th November
2011. The Order of Pereira J.A. made on 29th November 2011 without a hearing,
granted leave to CAGE to appeal and a stay of execution of proceedings in the
court below until 1st December 2011, when the application for stay was scheduled
for further consideration.
[14] The Order of Baptiste J.A. granting stay pending the determination of the appeal
was made on 1st December 2011 after hearing counsel for CAGE and Treasure
Bay, and counsel for The Gaming Authority and The National Lotteries Authority.
The 2nd respondent, the Attorney General, was unrepresented.
The Preliminary Jurisdiction Point
[15] At the hearing before us, learned Queen’s Counsel Mr. Garth Patterson raised the
preliminary point concerning the jurisdiction of the Court to review the two orders
11
made by single judges. Where Mr. Patterson’s argument succeeds on this point,
that would dispose of Treasure Bay’s application concerning the Order of Pereira
J.A. only, in my view. The question regarding stay is a different matter. The
application of Treasure Bay in relation to the Order of Baptiste J.A. granting stay
should be determined by us regardless of the outcome of the jurisdiction point
taken by Mr. Patterson, QC, in my view.
The Legislation and Rules Governing Stay
[16] Section 15(a) and (b) of the Eastern Caribbean Supreme Court (Saint Lucia)
Act4 states that:
“(a) this Act shall not disable the High Court or the Court of Appeal, if
it thinks fit so to do, from directing a stay of proceedings in any
cause or matter pending before it; and
(b) any person, whether a party or not to any such cause or matter
who would formerly have been entitled to apply to any court to
restrain the prosecution thereof … may apply to the High Court or
to the Court of Appeal, as the case may be, by motion in summary
way, for a stay of proceedings in the cause or matter, either
generally, or so far as may be necessary for the purposes of
justice, and the High Court or the Court of Appeal shall thereupon
make such order as shall be just.” (My emphasis).
[17] CPR 62.16 as amended states:
“62.16.(1) A single judge of the court may make orders for –
(a) …
(b) a stay of execution on any judgment or order against which an
appeal has been made pending the determination of the
appeal.” (My emphasis).
CPR 62.16 (A) states:
“62.16 (A) Any order, direction or decision made or given by a single judge
may be varied discharged or revoked by two judges where the order,
direction or decision relates to an appeal of a class which may be heard
and determined by two judges and by the full court in any other case.”
4 Chap. 2.01, Revised Laws of Saint Lucia 2008.
12
The Submissions
[18] Mr. Patterson, QC, in his submissions and oral arguments before us, contended,
among other things, that on the authority of Danone Asia Pte. Ltd. and Others v
Golden Dynasty Enterprise Ltd. and Others,5 the procedure granting leave to
appeal under CPR 62.14 was a special procedure prescribed by our rules which
did not permit Treasure Bay to participate at the stage when the application was
being considered by the single judge unless specifically directed by the judge. Mr.
Patterson, QC submitted further that since the application for leave was not an
interlocutory application made while an appeal was pending, the Court had no
jurisdiction under the new rule in CPR 62.16A to vary or discharge the orders of
the single judges.
[19] Learned Senior Counsel Mr. Astaphan submitted that on the authority of
Christenbury Eye Centre and Others v First Fidelity Trust Limited and
Others,6 and the inherent jurisdiction of the court, the procedure under the English
CPR 52.9 and 52.16(6) should be applied despite the decision in Danone where
our Civil Procedure Rules are silent on the matter.7
[20] The English CPR 52.9 permits a respondent who was not present at the hearing
for which permission to appeal was given to apply for an order that permission to
appeal be set aside in whole or in part or for imposition or variation of conditions
upon which the appeal may be brought where there is a compelling reason for
doing so. It states:
“52.9 The appeal court may –
(1) (a) strike out the whole or part of an appeal notice;
(b) set aside permission to appeal in whole or in part;
(c) impose or vary conditions upon which an appeal may
be brought.
5 Territory of the Virgin Islands HCVAP 2009/002 (delivered 28th September 2009, unreported).
6 Saint Christopher and Nevis HCVAP 2007/014 (delivered 19th November 2008, unreported).
7 See Eastern Caribbean Supreme Court (Saint Lucia) Act section 24, which states that the Court shall
exercise its jurisdiction as nearly in conformity with the law governing the practice and procedure in England
for the time being in force where no special provisions are contained in this Act and rules of court.
13
(2) The court will only exercise its powers under paragraph
(1) where there is a compelling reason for doing so.
(3) Where a party was present at the hearing at which
permission was given he may not subsequently apply for
an order that the court exercise its powers under subparagraphs
(1)(b) or 1(c).”
[21] The English CPR 52.16(6) states:
“(6) At the request of a party, a hearing will be held to reconsider a
decision of–
(a) single judge; or
(b) a court officer,
made without a hearing.”
[22] Mr. Patterson, QC’s response to Mr. Astaphan SC’s submission was that Danone
had already established that under our CPR 62.2 there was no need to look to the
English CPR 52.9 and 52.16(6) to determine whether this Court had the
jurisdiction to entertain Treasure Bay’s application to review the Order granting
leave to appeal, and the Order granting a stay of the judicial proceedings. Mr.
Patterson, QC urged us to apply our practice under CPR 62.2 which has adopted
the English approach stated in Jolly v Jay8 and dismiss Treasure Bay’s
application.
The Decision in Danone
[23] On the peculiar paradoxical facts existing in Danone, there was a valid Notice of
Appeal pending before the Court of Appeal which was filed on 12th January 2009
at the time the respondents filed their application challenging the single judge’s
decision that no leave was required. That decision was made on 29th January
2009 by a single judge. The application of the respondent in Danone was seeking
to set aside the decision of the single judge made upon an application for leave to
appeal that was filed on the same day as the Notice of Appeal out of an
abundance of caution. It turned out in hindsight that Gordon J.A. [Ag.] having
8 [2002] All E.R. (D) 104; [2002] EWCA Civ 277.
14
ruled as he did, afforded confirmation that the Notice of Appeal previously filed
was valid. The jurisdictional issue raised in Danone sought to identify the source
of the Court’s jurisdiction to review the decision of a single judge made on an
application for leave to appeal. In a manner of speaking, that application for leave
to appeal warranted to be treated as an interlocutory application incidental to a
pending appeal since it was filed when there was a Notice of Appeal before the
Court also. Within that context, the Court considered among other rules and
statute, the rule governing obtaining leave to appeal in our jurisdiction – CPR 62.2.
In determining the construction to be placed on CPR 62.16, the Court considered
the English CPR 52.3, 52.9 and 52.16, which were previously canvassed and held
in Christenbury to be applicable to our jurisdiction in the absence of domestic
Rules. The Court held at paragraph 13 in Danone that the answer to the question
as to whether the Full Court has power to review the decision of a single judge lies
not in the importation of provisions of English CPR. The answer lies in the
Eastern Caribbean Supreme Court (Virgin Islands) Act9 and also the Court of
Appeal Rules 1968 which provisions remain in full force and effect, save to the
extent any provision thereof has been impliedly repealed as being inconsistent or
in conflict with any provisions of CPR.
[24] In the case before us, no notice of appeal has ever been filed and served since
the Order of Pereira J.A. on 29th November 2011. Unlike the situation in Danone
therefore, neither CAGE’s application for leave to appeal nor Treasure Bay’s
instant application is an interlocutory application incidental to a pending appeal. It
is for this reason it would seem, that Senior Counsel Mr. Astaphan is urging us to
reconsider whether the English CPR 52.9 and 52.16 are applicable where no
notice of appeal exists. That is my understanding of Mr. Astaphan SC’s
submissions. There was no affidavit evidence as to what compelling reason
Treasure Bay was relying on, save for the Notice of Intention to Oppose CAGE’s
9 Cap. 80, Revised Laws of the Virgin Islands 1991 (formerly, the West Indies Associated States Supreme
Court (Virgin Islands) Ordinance).
15
application filed on 24th November 2011, which stated that CAGE served its
skeleton arguments on Treasure Bay’s solicitors on 23rd November 2011.
The Issues
[25] Treasure Bay’s application raises issues concerning: (i) whether the respondent
named in an application for leave to appeal may invoke the jurisdiction of this court
to review the decision of a single judge and consider the merits of the proposed
appeal, where the single judge granted leave to appeal to the applicant without
hearing the respondent; and (ii) whether the respondent whose counsel was
present and heard by a single judge at the further consideration of the applicant’s
application for stay may apply to the Full Court for the decision granting stay to be
revoked, varied or discharged.
Issue (i) – The Registry Notice
[26] The general practice obtaining in the Court of Appeal Registry is for a notice to be
served on the parties to an application for leave to appeal which states that the
application would come up for consideration before a single judge on the
scheduled chamber date. This Notice requests the parties to “ENSURE
COMPLIANCE WITH APPLICABLE REQUIREMENTS OF PRACTICE
DIRECTIONS NOS. 2 & 3 OF 2008”. These Practice Directions give standard
directions to parties as to how to proceed for interlocutory applications under Part
62. They include directions for a respondent served with an interlocutory
application to file a notice indicating whether the application is opposed within 7
days of service of the Notice of Application; as well as evidence and skeleton
arguments within 14 days of such service. On 24th November 2011, Treasure Bay
filed a Notice of Opposition to the application for leave to appeal.
[27] A practice exists in the Court of Appeal Registry to serve the notice previously
mentioned in all notices of application before the Court of Appeal, including
applications for leave to appeal, on parties named as applicants and respondents
16
who incidentally are the parties in the court below. Despite a well intentioned
reason, this practice is misleading in the case of applications for leave to appeal
which are not strictly speaking interlocutory applications, as it erroneously induces
a respondent to file a notice of opposition and other documents contrary to the
procedure envisaged under CPR 62.2. This Registry practice should desist in my
view for all applications for leave to appeal, unless the Chief Justice or a single
judge makes an order for an oral hearing and specifically directs that the
respondent attend and participate in the manner the order directs. Where such an
order is made there would be no need for the Registry to issue such a notice in
any event, since a copy of the order, inviting the respondent to participate in the
manner directed in the order, would have to be served on the parties.
The English Law Governing Permission to Appeal
[28] I find it necessary to carry out this review despite the observations in Danone as
to the unsuitability and inapplicability of the UK regime to our jurisdiction. That
decision, though binding on this Court, stands on its own peculiar facts as I have
pointed out before. The English law contains provisions and rules, only some of
which were considered at length in Danone. The other provisions which were not
considered provide helpful assistance in appreciating the scope of the English
CPR 52.9 and 52.16 and the conclusions of the Court in Danone on the
construction of CPR 62.2, in my humble view.
[29] My learned brother Mitchell J.A. [Ag.] has already reviewed our rule governing
permission to appeal – CPR 62.2 – and I agree with his views as to the effect of
CPR 62.2.
[30] The English Rules governing the English procedure for permission to appeal,
which are comparable to our amended CPR 62.2, are UK CPR 52.3, and Practice
Direction 52 paragraphs 4.4 to 4.18. The relevant sub-rules of CPR 52.3 are sub
rules (2) to (5) which I set out below for convenience:
“(2) An application for permission to appeal may be made –
17
(a) to the lower court at the hearing at which the decision to be
appealed was made; or
(b) to the appeal court in an appeal notice.
(3) Where the lower court refuses an application for permission to appeal,
a further application for permission to appeal may be made to the appeal
court.
(4) Subject to paragraph (4A), where the appeal court, without a hearing,
refuses permission to appeal, the person seeking permission may request
the decision to be reconsidered at a hearing.
(4A) Where the Court of Appeal refuses permission to appeal without a
hearing, it may, if it considers that the application is totally without merit,
make an order that the person seeking permission may not request the
decision to be reconsidered at a hearing.
(4B) Rule 3.3(5) will not apply to an order that the person seeking
permission may not request the decision to be reconsidered at a hearing
made under paragraph (4A).
(5) A request under paragraph (4) must be filed within 7 days after service
of the notice that permission has been refused.”
[31] Practice Direction 52, paragraph 4.4(4) states that a decision about adding a party
to a claim (which is the type of decision that Wilkinson J. made in the present
proceedings) is a case management decision. Practice Direction 52, paragraph
4.5 states that in dealing with an application for permission to appeal from a case
management decision the court dealing with the application may take into account
whether: (1) the issue is of sufficient significance to justify the costs of an appeal;
(2) the procedural consequences of an appeal (e.g. loss of trial date) outweigh the
significance of the case management decision; and (3) whether it would be more
convenient to determine the issue at or after trial.
[32] Practice Direction 52, paragraph 4.8 states that:
“4.8 There is no appeal from a decision of the appeal court to
allow or refuse permission to appeal to that court (although where the
appeal court, without a hearing, refuses permission to appeal, the person
seeking permission may request that decision to be reconsidered at a
hearing). See section 54(4) of the Access to Justice Act and rule 52.3(2),
(3), (4) and (5).” (My emphasis).
Section 54 (4) of The Access to Justice Act 1999 (UK) as amended states:
“(4) No appeal may be made against a decision of a court under
18
this section to give or refuse permission (but this subsection
does not affect any right under rules of court to make a further
application for permission to the same or another court)”10 (My
emphasis).
[33] Practice Direction 52, paragraph 4.11 states that applications for permission to
appeal may be considered by the appeal court without a hearing. Paragraph 4.12
provides that:
“4.12 If permission is granted without a hearing the parties will be
notified of that decision and the procedure in paragraphs 6.1 to 6.6 will
then apply.”
Paragraphs 6.1 to 6.6 deal with the procedure after permission to appeal has been
granted. Paragraph 4.13 states that:
“4.13 If permission is refused without a hearing the parties will be
notified of that decision with the reasons for it. The decision is subject to
the appellant’s right to have it reconsidered at an oral hearing. This may
be before the same judge.”
[34] Practice Direction 52, paragraph 4.14 provides that:
“4.14 A request for the decision to be reconsidered at an oral hearing
must be filed at the appeal court within 7 days after service of the notice
that permission has been refused. A copy of the request must be
served by the appellant on the respondent at the same time.” (My
emphasis).
Finally, paragraphs 4.15 and 4.16 state:
“4.15 Notice of a permission hearing will be given to the respondent but
he is not required to attend unless the court requests him to do so.
“4.16 If the court requests the respondent’s attendance at the
permission hearing, the appellant must supply the respondent with a
copy of the appeal bundle (see paragraph 5.6A) within 7 days of being
notified of the request, or such other period as the court may direct. The
10 Section 60 of the Access to Justice Act 1999 amended section 58 of the Supreme Court Act 1981 by
substituting a provision which states that: “58. – (1) Rules of court may provide that decisions of the Court of
Appeal which– (a) are taken by a single judge…in proceedings incidental to any cause or matter pending
before the civil division of that court; and (b) do not involve the determination of an appeal or of an
application for permission to appeal, may be called into question in such manner as may be prescribed.”
(My emphasis).
19
costs of providing that bundle shall be borne by the appellant initially, but
will form part of the costs of the permission application.” (My emphasis).
[35] Practice Direction 52, paragraphs 4.22 to 4.24 state that:
“4.22 In most cases, applications for permission to appeal will be
determined without the court requesting –
(1) submissions from, or
(2) if there is an oral hearing, attendance by
the respondent.
4.23 Where the court does not request submissions from or
attendance by the respondent, costs will not normally be allowed to
a respondent who volunteers submissions or attendance.
4.24 Where the court does request –
(1) submissions from; or
(2) attendance by the respondent,
the court will normally allow the respondent his costs if
permission is refused.” (My emphasis).
[36] It would seem therefore that the English Rules – CPR 52.9 and 52.16(6)11 – that
Senior Counsel for Treasure Bay is relying on are to be viewed and interpreted not
in isolation, but within the framework of the statute law and other rules and
Practice Directions governing permission to appeal in England. Once this is done,
it invariably leads to the conclusion that even the English law seems to prevent
Treasure Bay from making this present application which is inviting the court to
review the decisions of Pereira J.A. and Baptiste J.A. as it would do for an
interlocutory appeal decision, or an interlocutory order of a single judge made
while an appeal is pending.
[37] The application of Treasure Bay which calls into question the decisions of the
single judges, is effectively appealing the orders in circumstances which are
prohibited by English law in my view, regardless of whether you refer to the
Court’s exercise of its jurisdiction as a reconsideration, or review, or appeal. The
11 See paras. 20 and 21 above where these Rules are set out.
20
English CPR 52.9(2) and 52.16(6)(a)12 which were canvassed and considered in
Christenbury and Danone cannot validly be singled out from the rest of the
applicable English law and Rules and relied on by Treasure Bay’s Senior Counsel
to justify review. These Rules provide no authority for saying that this Court has
jurisdiction to permit a respondent to challenge the grant of unlimited permission to
appeal, whether it be by way of an application to review, or discharge or to
reconsider the single judge’s decision giving permission.
[38] It appears to me however that CPR 52.9(2) [UK] would probably operate for a
respondent only within the confines of the limited permission procedure which is
dealt with by the English Practice Direction 52 paragraphs 4.18 to 4.21, or where
the respondent is allowed by the court to participate for a compelling reason.13
The decision of Pereira J.A. granting leave did not limit the issues which were to
be the subject of the appeal. Neither did Pereira J.A. give directions in any Order
for Treasure Bay to participate in the determination of the application for leave. In
such circumstances, were a Registry Notice to be issued, it would mislead a
respondent’s counsel to believe that the respondent had a right to be heard and
therefore it would be misguided.
12 CPR 52.16(6)(a) [UK] states: “At the request of a party, a hearing will be held to reconsider a decision of –
(a) single judge…made without a hearing.”
13 “4.18 Where a court under rule 52.3(7) gives permission to appeal on some issues only, it will – (1)refuse
permission on any remaining issues; or (2) reserve the question of permission to appeal on any remaining
issues to the court hearing the appeal.
4.19 If the court reserves the question of permission under paragraph 4.18(2), the appellant must, within 14
days after service of the court’s order, inform the appeal court and the respondent in writing whether he
intends to pursue the reserved issues. If the appellant does intend to pursue the reserved issues, the parties
must include in any time estimate for the appeal hearing, their time estimate for the reserved issues.
4.20 If the appeal court refuses permission to appeal on the remaining issues without a hearing and the
applicant wishes to have that decision reconsidered at an oral hearing, the time limit in rule 52.3(5) shall
apply. Any application for an extension of this time limit should be made promptly. The court hearing the
appeal on the issues for which permission has been granted will not normally grant, at the appeal hearing, an
application to extend the time limit in rule 52.3(5) for the remaining issues.
4.21 If the appeal court refuses permission to appeal on remaining issues at or after an oral hearing, the
application for permission to appeal on those issues cannot be renewed at the appeal hearing. See section
54(4) of the Access to Justice Act 1999.”
21
[39] I would say at this point that there is much similarity between our interpretation of
our CPR 62.2 and the operation of the relevant English Rules I have reviewed,
than has been previously realised.
[40] I therefore agree with the observations of George-Creque J.A. (as she then was)
at paragraph 12 of her decision in Danone where she stated that it was simply not
intended by the framers of CPR to provide for a challenge by a respondent to the
grant of leave by seeking to overturn the grant of leave based on the strength of
the appellant’s case, (and if I might add) or based on the fact that the respondent
was denied the opportunity to be heard.
[41] Our practice of restricting the respondent’s participation under CPR 62.2 would not
qualify as being arbitrary in my view. We are seeking to promote proportionate,
cost-effective and expeditious resolution of large case loads of cases in the Court
of Appeal with limited resources, in keeping with the overriding objective, and
mindful of the constitutional guarantees to all litigants. The purpose for denying
the respondent the opportunity to participate is because at this point only
interlocutory questions and procedural matters are at stake in the process for
eliminating what would be unmeritorious interlocutory appeals were they allowed
to go forward. Making the grant of leave to appeal final in those circumstances
would not prejudice the substantive rights of the respondent. Treasure Bay will
have the opportunity to canvass all of the points made concerning the merits of the
appeal at the substantive hearing of the appeal.
Issue (ii) – Re Application for Stay
[42] The law previously considered at paragraphs 16 and 17 above is quite clear as to
when the Court of Appeal may stay proceedings in the lower court. In the absence
of a timely Notice of Appeal filed subsequent to the Order granting leave to appeal
there was no appeal pending before this Court when the Order staying the judicial
review proceedings was made. What was then pending before the Court of
Appeal was only the application for stay incidental to CAGE’s intention to appeal.
22
Consequently, it would seem that this Court had no jurisdiction to make that order,
which would be a nullity. I would set aside this order granting stay. The judicial
review proceedings are scheduled to proceed in the court below on 19th January
2012.
[43] It appears that the filing of Treasure Bay’s application for review of the single
judge’s orders may have created intervening circumstances which possibly
brought about CAGE’s failure to file the Notice of Appeal within 21 days of the date
that leave was granted as mandated by the amended CPR 62.5(1)(b). Learned
Senior Counsel Mr. Astaphan did ask us at the hearing to give directions which
would put the proceedings on track for a speedy hearing of the appeal. That can
only be done where a filed Notice of Appeal exists. Both counsel should have
been aware at the hearing that the Notice of Appeal was not filed. That was never
addressed by either counsel.
[44] However I do not think that we can grant an extension of time as part of our order
based on my speculation as to the reason for the delay when there was no
application before us to do so at the hearing. In the event the judicial review
proceedings come up for hearing on 19th January 2012 and there is a valid appeal
pending before this Court, the learned judge undoubtedly has the discretion to
consider in the interest of justice the implications for the parties were the appeal to
succeed, before deciding to proceed with the hearing.
Conclusions
[45] The result of the application would be as follows:
Order
1. The application to revoke vary or discharge the Order of Pereira J.A. which
granted the respondent CAGE St. Lucia Ltd. leave to appeal the Order of
Wilkinson J. made on the 7th November, 2011 is dismissed.
23
2. The application to revoke vary or discharge the Order of Baptiste J.A.
which stayed the judicial review proceedings in the lower court is granted
and that Order is set aside.
3. The respondent and the applicant, each having partly succeeded in the
result of the application, there be no order as to costs.
Ola Mae Edwards
Chief Justice [Ag.]
I have read the judgments of my learned colleagues and I am in full agreement with the
judgment of Justice of Appeal Edwards.
Gertel Thom
Justice of Appeal [Ag]