[1] William Tyson [2] Cloesta Tyson Applicants/Claimants v Nagico Insurance Company Ltd Respondent/Defendant [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Thomas, J |
| Judgment Date | 27 November 2013 |
| Judgment citation (vLex) | [2013] ECSC J1127-7 |
| Docket Number | SBKHCV2011/0024 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 27 November 2013 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SBKHCV2011/0024
Mr. Garth Wilkin for the Applicants/Claimants
Mr. Sylvester Anthony and Ms. Angela Gracie Sookoo for the Respondent /Defendant
Thomas, J [A.G]: The matter before the court is an Application filed by the 1 st and 2 nd claimants/ applicants on 2 nd August 2012. The following orders are sought:
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(1) The defendant pay damages to the claimant in the sum of $EC 138,792.15
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(2) The defendant pay interest to the claimant from 28 th April 201 to 26 th July 2012 in the sum of EC$24,501.51
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(3) The defendant pay costs to the claimant in the sum of EC$19,849.02
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(4) No order as to the costs of this application.
Grounds 1 to 5 on which the applicants/claimants are seeking these orders are as follows:
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(1) Judgment was granted in the subject claim by this court on 26 th July 2012; it was ordered therein that damages payable to the claimants shall be $138,792.15, if the claimants are in possession of the salvage
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(2) The claimants have been and continue to be in possession of the said salvage since the loss occurred on 13 th August 2010
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(3) It was further ordered in the said judgment that prescribed costs are payable pursuant to Part 65 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000; the said costs being quantifiable in the sum of EC$19,849.02
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(4) Pursuant to Part 33 of the CPR 2000, by letter dated 28 th April 2011, the claimants made an offer to the defendant to settle the captioned claim (such letter being without prejudice save as to interest on damages).
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(5) The said offer contained the provision that the claimants reserved the right to make the terms of the offer known to this honourable court after judgment was given with regard to the question of interest on damages.
In her affidavit Cloesta Tyson, the 2 nd claimant/applicant, outlined the circumstances giving rise to the offer made to the defendant to settle the matter on or about 28 th April 2011.
The affiant deposes that the precursor to the offer to settle was a request to the defendant for a copy of the proposal letter which was referred to in the defendants filed defence; in relation Bus GT17. This request, according to the deponents was made on or about 29 th March 2011; and not having received a reply on about 28 th April 2011 she gave instructions to her attorney to make an offer to the defendant to settle the matter "as the cost of time a litigation put and would further put" strain on our business."
Finally, the deponent says that the 1 st claimant and herself "wish to be awarded interest in accordance with the Laws of St. Kitts and Nevis from the period between the offer to settle the captioned claim and the date of the judgment.
On 26 th September 2012, the defendant, NAGICO Insurance Company Limited filed a notice of objection to the applicants/claimants application from the prejudgment interest from 28 th April 2011 to 26 th July 2012.
The grounds for the objection are these:
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(1) That this honourable court is functus officio and or res judicata in that
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I The claim for pre-judgment interest which was properly before the court by virtue of the amended claim form filed herein on February 28 th, 2011 was refused by virtue of the decision …contained in the written judgment delivered on July 26 th, 2012.
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II The whole of the decision…contained in the judgment delivered on the 26 th July 2012 has been appealed by the respondent in the High Court. Civil Notice of Appeal No.20 of 2012 filed September 7 th, 2012 including the quantum of damages awarded by the court which forms the basis of the application for pre-judgment interest.
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(2) That the application for pre-judgment interest is properly an application to vary the decision…contained in the judgment delivered on July 26 th, 2012 and amounts to an abuse of process in that
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I That the appropriate time for bringing the offer to settle to the courts' attention would have been after the oral decision delivered in open court on July 26 th, 2012 and before the said decision was issued in the form of the written judgment.
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II The court having refused the applicants' claim from pre-judgment interest and the applicants' failure to bring the offer, to settle to the court's attention prior to the delivery of the written judgment, the appropriate course of action for the appellants is to appeal the decision of the court.
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(3) The application for pre-judgment interest from April 28 th, 2011 to July 26 th, 2012 in the sum of EC$24,501.51 is excessive in that
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I The applicants have failed to properly account for and or consider the twenty one (21) days from April 28 th, 2011 to May 20 th, 2011 during which the offer to settle was open for acceptance by the respondent.
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II That the respondent cited reasonably in refusing the applicants offer to settle, having regard to all the circumstances of the case including the factual and legal issues that were still in dispute between the parties.
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(4) This is not an appropriate case for the exercise of the courts' jurisdiction to vary the judgment delivered on July 26 th, 2012, having regard to all the circumstances of this case in that:
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I That there is no evidence of error on the part of the court in relation to the misapprehension of some fact or law in relation to its refusal to grant pre-judgment interest.
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II The judgment has already been appealed to the Court of Appeal by virtue of the High Court Civil Notice of Appeal No. 20 of 2012 on September 7 th, 2012
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The issue for determination are:
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(1) Whether the court is functus officio in the matter
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(2) Whether the application under part 35 of CPR 2000 or an appeal filed by the respondent operate as a stay
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(3) Whether the applicants/claimants are entitled to the order sought
On behalf of the claimants/applicants it is submitted that this court is not functus on 2 nd August 2012 when the Part 35 application was made, nor is it functus to date
In furtherance of this contention reliance is placed on the cases of Re Harrison Settlements 1 and Richard Rowe et al v Attorney General et al 2 and the submission goes on to say that the orders made in the judgment were never perfected or entered and that is by virtue of the Part 35 application that such perfection was sought: a further contention is that the defendant is seeking to move the court disregard the Part 35 application on the authority of Saint Christopher Club Ltd v Saint Christopher Club Condominions et al 3.
Learned counsel for the claimants/applicants then goes on to distinguish the above mentioned cases with the following line of reasoning:
(12) "Firstly, the St. Christopher Club was concerned with variation of orders based on the slip rule under Rule 42.10 of CPR 2000. The Part 35 application does not concern the slip rule in any manner.
(13) The head note of the Saint Christopher Club case sums up the stare decisis therein
"After an order is perfected on an appeal against that order is filed, the slip rule may only be used to correct genuine clerical errors on omission in the order."
(15) It is submitted that the core of the Part 35 application is mutually exclusive to the core of the St. Christopher Club case"
Learned counsel for the defendant does not address the doctrine of functus officio directly, but he advances submissions on the kindred doctrine of res judicata. The submissions run thus:
"The doctrine res judicata we submit at this stage is trite law. A plea of res judicata must show that the same point has actually been decided
between the same parties. The doctrine and application of the principle of res judicata was addressed by the Court of Appeal in the local decision of Analdo Bailey v St. Kitts-Nevis Cable Communications Limited. Applying the essentials of the doctrine of res judicata it is clear that the issue of quantum of damages and costs were already decided by this honourable court in its decision of July 26 th, 2012. The court in its judgment dated July 26 th, 2012 ordered that the defendant pay to the claimants damages in the sum of $138,792.15 if they were in possession of the salvage and prescribed costs on the damages which would of course depend on which sum the claimants were entitled to. There is therefore absolutely no need for the claimants to come by way of application for orders from the court to determine the issue of quantum or costs. Such issues were already determined by the court between the parties."
The court considers it expedient to address the submissions on the doctrine of res justicata forthwith. The import of this doctrine was explained succinctly by Rawlins JA, as he then was, in this way. "… [R] es judicata pro veritate acciptua. A literal translation is that a thing adjudicated is accepted as the truth 4. This indeed the essence of what was held in Henderson v Henderson 5
On the respondents' our submission it is said that a plea of res judicata must show that the same point has already been decided. But while it can be said that the issue of the quantum of damages has been decided, this is not the case as far as the interest coupled with an application under Part 35 of CPR 2000 based on an offer to settle which by the said rules must come after judgment is given.
Accordingly it is the determination of the court that res judicata does not apply...
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