BRITISH VIRGIN ISLANDS
IN THE COURT OF APPEAL
CIVIL APPEAL NOS. 14 and 15 OF 2002
LUCIA PENN AND CALVIN PENN
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Adrian Saunders Justice of Appeal
The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]
Mr. Joseph Archibald QC; Miss. Anthea Smith with him for both Appellants
Mrs. Dancia Penn QC; Mr. Clyde Williams with her for all three Respondents
2003: June 19;
 REDHEAD, J.A.: Both appeals involve a determination under the Old Rules (1970 Rules
of the Supreme Court) as to whether the cause or matter in each of the suits was deemed
abandoned by Virtue of Order 34 Rule 11. Although the facts in Civil Appeal No. 14 –
Rudolph George v. Ivan Chinnery- are different from those in Civil Appeal No. 15 – Cyril
Romney v Lucia Penn et al -, the issue which is to be decided in both cases is the same
and therefore both cases were heard together.
 In the case of George, the Testator, Albert Chinnery, appointed the respondent, Ivan
Chinnery executor of his will.
 By that same will he left a share in a two-story building to the appellant and his brother.
 On the 16th October 1996 the appellant commenced proceedings in the High Court of the
British Virgin Islands by issuing a Writ of Summons in which he sought a declaration that
he was entitled to a half share in the property.
 On 21st February 1997 the appellant applied by way of summons for an interlocutory
injunction. This was heard in September 1997. The judge ordered that the case be
adjourned for a report for a settlement. The learned judge also ordered the appellant and
the respondent to exchange pleadings while settlement negotiations continued. A
statement of claim was filed on 23rd March 1998 and the defence filed on 18th June 1998.
On 3rd July 1998 Summons for Directions was filed. This was heard on 27th July 1998. The
order made on that Summons was filed on 27th July, 1998.
 No further documents were filed or proceedings had in this case until October 2001 when
the case was set down for Case Management Conference by the Court Office.
 On 12th November 2001 Solicitors for Ivan Chinnery applied by way of Notice of Motion for
an order that this case was deemed abandoned.
 In a written judgment Rawlins J. made the Order, stating inter alia
“… This case is deemed abandoned and incapable of being revived as of 27th July
1999 by the Operation of Order 34 rule 11(i)(a) of the 1970 Rules. It could also
have been deemed abandoned on or about 5th December 1999 by the Operation
of Order 34 11(i)(b) of the 1970 Rules.”
 The appellant is dissatisfied with this ruling and has appealed to this Court.
 The Grounds of Appeal are;
(a) The learned trial Judge erred in law when he applied the Rules of Supreme
Court 1970 instead of the Civil Procedure Rules 2000 when determining the
application to strike the matter from the Court’s list.
(b) The learned trial Judge was wrong in law when he failed to give any or sufficient
consideration to Part 1 of the Civil Procedure Rules 2000, that is the overriding
 The facts of Cyril Romney are as follows: The original claimant, William Smith, was the
husband of Iris Penn-Smith. She died intestate and without issue on 2nd November 1993.
Mr. Smith obtained Letters of Administration to her estate as the sole Administrator on 3rd
May 1999. He died on 7th February, 2002. An application for probate of his will was filed on
19th March, 2002.
 Mr. William Smith instituted action by Writ of Summons, generally endorsed, on 29th
August 1996. He sought a declaration that he was entitled to be the sole registered
proprietor of the matrimonial home in which he resided with his wife prior to her death, and
land therewith, notwithstanding the provisions of the Intestates Estates Act Cap 34 of the
Laws of the British Virgin Islands. On 21st January 1997 Solicitors for Mr. Smith issued an
ex parte summons for leave to serve the writ on Mr. Roland Penn out of the jurisdiction. On
17th April, 1997 Dancia Penn & Co. entered appearance on behalf of Mr. Roland Penn.
 No further documents were filed or proceedings had until 29th June 2000.
 On that date Solicitor for the Respondent issued a summons to dismiss the action on the
ground that the matter should be deemed abandoned under the provisions of Order 34
Rule 11(i) of the 1970 Rules. They prayed in the alternative, that the action be dismissed
for want of prosecution as an abuse of the process of the Court.
 Rawlins J. in granting the respondent’s application ordered:
“It is hereby ordered that this case was deemed abandoned and is incapable of
being revived by the operation of Order 34 Rule 11 (i)(a) of the 1970 Rules with
effect from the 17th day of April 1996.”
 This appellant is also dissatisfied with the judge’s ruling and has appealed to this Court.
 The Grounds of Appeal filed by the appellant are:
(a) The learned trial Judge erred when he applied the Rules of the Supreme Court
1970 instead of the Civil Procedure Rules 2000 when determining the summons
to dismiss the Action.
(b) The learned trial Judge was wrong when he failed to give any or sufficient
consideration to Part 1 of the Civil Procedure Rules 2000, that is the overriding
 I deal with Rudolph George’s appeal first. No. 14 of 2002. Rawlins J in a careful written
judgment traced the history of this matter from the time of its filing up to the date the last
document was filed.
 Order 34 Rule 11(i)(a) of Supreme Court Rules 1970 mandated:
“A cause or matter shall be deemed altogether abandoned and incapable of being
revived if prior to the filing of a request for hearing or consent to judgment or the
obtaining of judgment “(a) any party has failed to take any proceeding or file any
document therein for one year from the date of the last proceeding had or the filing
of document therein (b) no application for or consent to revivor has been filed
within six months after the matter has been deemed deserted.”
 The provision is quite clear and without any ambiguity.
 The last document as noted above, was filed in this matter or 27th July 1998. Was there
anything done by the respondents which would be regarded as a waiver so as to prevent
the respondents benefiting from the rule? (See Gustave Alvanley Frett by his personal
representatives Gwen Alva, Derrick Atley Frett and Idalla Davies, Haldane Davies –
Respondents Civil Appeal No. 2 of 1995 – British Virgin Islands).
 In an affidavit deposed to and filed by Ms. Michelle Matthew on 19th March 2002 by
paragraph 14 she swore as follows:
“By letter dated 26th August 1998. Astra Penn wrote to legal practitioners for the
claimant seeking an extension of time of exchanging Lists of Documents; and to
reopening negotiations with a view to settling the matter and therefore arranging a
meeting between the parties and Counsel on their own behalf.”
 One thing that is beyond doubt, on that date 26th August, 1998, the matter was not
deemed to be abandoned, so in my judgment there could have been no waiver on the
 Was this letter a “proceeding” for the purpose of the satisfaction of the rule?
 Mr. Archibald QC in his skeleton arguments submitted.
“As stated in the case of Mundy v Butterly & Co. Ltd (1932) 2 Ch 229 and in
Barrow v Caribbean Publishing Co. Ltd. 11 14 I.R. 461 a “proceeding” is defined
as “something in the nature of a formal step, either an application to the Court or
at least a step taken by a litigant in prosecution of the action being a step which is
required by the rules.”
 In Barclay Davit Co. Ltd v Samuel Taylor and Sons (Brierley Hill) Ltd. 1946 2 Ch.d.
41. The Court was called upon to interpret “proceeding” in the English R.S.C. Ord. 26 r 6.
 At page 45 Romer L.J. said:
“I think the rule intended a proceeding which is to have the effect of continuing the
action – not a proceeding which has the effect of putting an end to the action.”
 I make the observations that regarding the communication i.e. the letter dated 26th August
from Ms. Astra Penn. There was no response from the other side to this communication
initiated by the respondents. The second comment is that it was an invitation to meet with
a view to discontinuing the action. In my opinion that could hardly be regarded as a
 The more fundamental question that has to be considered for the determination of this
matter, in my view, is when was this matter deemed abandoned.
 Byron J. A. (as he then was) in Gustave Alvaney Frett (Supra) at page 1 in holding that
Order 34 Rule 11(i)(a) of the Rules of the Supreme Court 1970 empowers the Court to
deem the cause abandoned and incapable of being revised because more than one year
had elapsed after the entry of appearance on 4th August 1991 before any party took any
proceeding or filed any document in the matter. He also agreed with the opinion expressed
in St. Hilaire and Baptiste v Lewis Civil Appeal No. 2 of 1992 St. Vincent and the
Grenadines that the party benefiting from that rule could waive it.
 At page 2 of the judgment Byron J.A. said:
“I do not construe Order 34 rule 11 (i)(a) to substitute an automatic dismissal on
the expiration of the time prescribed, for an order of the Court to make an
application of a party to the cause. It’s language does not require that
interpretation and that is a clear indication that such a construction was not
intended in any event an automatic dismissal would involve a serious departure
from existing practice.”
 In Isaac v Robertson 43 WIR 126 at 129. Lord Diplock after referring to Order 34 rule 11
“Both Glasgow J and the Court of Appeal were of the opinion that, upon the facts
as to the course of the proceedings in the instant case, the rule had become
applicable before 31st May 1979 when the interlocutory injunction was granted; the
only, but crucial, difference between the judge and the Court of Appeal being that
the former held (erroneously) that the rule operated ipso jure to render the
interlocutory injunction an order which the Court was obliged upon its own initiave
to treat as having never being made, whereas the Court of Appeal held (rightly)
that the rule entitled the defendant as defendant in the action to apply for an order
setting aside the interlocutory injunction if he elected to make such application.
The rule, which is for the benefit of defendants, is not upon which a defendant is
under any compulsion to rely.”
 There could be no doubt having regard to authorities that Order 34 rule 11 (i)(a) does not
act as an automatic dismissal of an action that is caught on the expiration of the requisite
time prescribed by the rule.
 Rawlins J. decided in paragraph 22 of his judgment:
“Since abandonment applies from the operative date unless there is a waiver, the
application herein by the defendant was a mere formality.
If the matter falls under the operation of order 34 rule 11 (i) of the 1970 Rules. It
would have been deemed abandoned and incapable of being revived at a date in
1999. this was prior to the commencement of CPR 2000. Its continued existence
in the system after the operative date depended upon whether the defendant
waived his right and permitted to continue. In the absence of waiver, this case was
already deemed abandoned and incapable of being revived prior to the
commencement of CPR 2000.”
 For a determination of this matter it would be necessary to consider the time of the filing of
the application for an order deeming the matter to be abandoned.
 The application to strike out was filed by the respondent on 12th November, 2001. Mr.
Archibald QC, argued that if the application to strike out was made after the new rules
came into effect then CPR 2000 ought to apply, for he contended that in the Preamble of
CPR 2000, which states that “Those rules are deemed to have come into effect in each of
the member states and territories of the Eastern Caribbean Supreme Court on 31st
 The short point for consideration made by Miss Dancia Penn QC, in her written submission
is that there was no waiver under Order 34 or 11 (i)(a) and as such the matter is to be
deemed altogether abandoned and incapable of being revived as at July 27, 1999.
 That being so there was no suit in existence at the commencement of CPR 2000 on
December 31, 2000 to which those rules could be applied.
 In my considered opinion there would have been no suit in existence if there was an
automatic dismissal of the suit on 27th July 1999 but from the authorities referred to above
Frett v Davies (Supra) Isaacs v Robertson (Supra). The dismissal of the suit can only
occur when the application is made for an order deeming the matter abandoned.
 No application was made until well after the CPR 2000 Rules had come into force and
moreover Part 73(3) of CPR 2000 Mandates:
“If a trial date has not been fixed in proceedings commenced before the
(a) The Court office must fix a date, time and place for a case management
conference under part 27 after a defence has been filed and give all parties at
least 28 days notice of the conference, and
(b) These rules apply from the date of the case management conference.”
 It is quite clear from the history of this case that no trial date had been fixed for the
 The last events which occurred in this case history are that on 24th July, 1998 the
Summons for Directions were heard. The order made on the Summons for Directions was
filed on 27th July, 1998. In October 2001 the case was set down for Case Management
Conference pursuant to a notice issued out of the court office. It seems that it was as a
result of the action by the Court in setting down the case for Case Management that
galvanized the solicitors for the respondents into action into filing the application on 12th
November for an order that this case was deemed abandoned in 1999 and incapable of
 In light of the foregoing I have absolutely no doubt that CPR 2000 apply to this case and
therefore the learned trial judge erred in law in striking out the case. The appeal is allowed.
The case is remitted to Case Management.
 I now analyze briefly the history of Cyril Romney.
 The issue as I had stated before was whether the matter was deemed abandoned.
 The learned trial judge so held and dismissed the action.
 At paragraph 22 of his judgment Rawlins J. said:
“In my judgment in Rudolph George v Ivan Chinney… No 1996 BVIHCV/0228. I
have considered submissions that were made by Counsel for the parties on this
issue. The relevant analysis, finding and decision on the issue are at paragraphs
20 to 23 of that judgment… In that case the application to dismiss was filed after
the commencement of CPR 2000. I found that this did not preclude the operation
of Order 34 rule 11 (i)(a) of the 1970 Rules. In this case the application to dismiss
was filed prior to the commencement of CPR 2000. It is even more clear on my
reasoning on this issue in the Rudolph George Case that the commencement of
CPR 2000 did not preclude the operation of 0rder 34 rule 11 (i) of the 1970 Rules
on the application before me in this case”
 The respondent’s summons to dismiss was dated and filed on 29th June, 2000. Mr.
Archibald QC argued that the summons was not perfected, although filed on 29th June
2000, until 28th February, 2002 when the Affidavit in Support of Summons was filed.
Learned Counsel contended that there was no application before the Court until the
affidavit was filed on 28 February, 2002.
 The Court could not have made any pronouncement on the summons until it was
supported by an affidavit.
 I am persuaded by this argument, as I think Mr. Archibald must be correct. Once again
unless there is an automatic dismissal on the expiration of the time prescribed by Order 34
Rule 11 (i)(a) it is clear that up to 28th February, 2003 this case would still be alive and in
 CPR 2000 repealed the Rules of the Supreme Court (Revision) 1970.
 In July 2000 and October 2000 there were applications before the judge. On each
occasion these applications were adjourned. The motion came before Benjamin J. on 1st
November, 2000, it was adjourned and eventually heard by him on 22nd November 2000.
The order of the Court on that date was:
“It is ordered that the application for postponement made by the
Applicant/Defendant be granted and that the matter be adjourned to 17th January,
2001 for final report in the course of settlement.”
 There was a hearing on 17th January, 2001 and on 23rd January an order was filed that
“By consent, it is ordered that the matter be adjourned to 23rd February before a
 Part 73(3) of CPR 2000 (referred to above) is relevant.
 I entertain no doubt in my mind that having regard to the above that CPR 2000 are
applicable to this case and the learned trial judge erred when he held that it was deemed
abandoned by the operation of Order 34 11(i)(a) of the Supreme Court Rules 1970.
 Both appeals are therefore allowed and the Orders pronounced by the learned trial Judge
in both these appeals are set aside.
 Costs to each of these appellants in the sum of $9333.
A. J. Redhead
Justice of Appeal
I concur Ephraim Georges
Justice of Appeal [Ag.]
 SAUNDERS J.A.: I agree that these appeals must be allowed for the reasons given.
Order 34 of the old Rules of the Supreme Court generated much litigation and happily,
courts and practitioners alike are no longer required to address its provisions in the new
Civil Procedure Rules 2000.
 I think the cases, referred to by my brother Redhead, J.A., illustrate that a matter was
never automatically deemed abandoned. Neither the court nor the litigant could assume
that because a certain set of events had occurred, a matter was ipso facto abandoned.
The matter was still alive up to the point in time a court ordered that it had been deemed
abandoned. The hearing on the application for such an order was not of a mere pro forma
nature. The hearing was adversarial. The respondent could for example argue that the
relevant events required to trigger the rule had not in fact occurred; or that the time had not
in fact run; or that notwithstanding the occurrence of these circumstances, the applicant
had waived his right to insist upon the rule. It was then for the court to determine whether it
should deem the matter abandoned after considering all the circumstances. The order of
the court might then have retrospective effect but it cannot be said that prior to the making
of the order the matter was dead.
 The new CPR 2000 having repealed the old Rules, the opportunity to argue that a matter
has been deemed abandoned pursuant to Order 34 has been thereby removed. There is
now no rule in existence pursuant to which a litigant can ask a court to deem a matter
abandoned and the appeals should therefore be allowed.
 In each of these cases the application to deem the matter abandoned was made after the
new CPR 2000 had come into being. In those circumstances the court could not give relief
that was available under a rule that had been repealed.
Justice of Appeal