Applewaite Lake v Barbara Hardtman
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Baptiste JA |
| Judgment Date | 22 March 2022 |
| Judgment citation (vLex) | [2022] ECSC J0322-2 |
| Docket Number | NEVHCVAP2020/0005 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Gertel Thom Justice of Appeal
The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.]
NEVHCVAP2020/0005
Mr. John Jeremie, SC with him Mr. Ricaldo Caines, Ms. Keesha Carty and Ms. Shivana Lalla for the Appellant
Ms. M. Angela Cozier for the Respondents
Interlocutory appeal — Consent order — Court's power set aside consent order — Approach of appellate court to challenges of findings by judge — Whether learned judge fell into error and made incorrect findings of fact — Restraint by appellate court in interfering with trial judge's findings of fact, evaluation and inference from facts — Whether learned judge failed to place sufficient/any weight on facts and evidence — Whether judge pre-determined the outcome of the case disposing of facts central to the determination of the case in a pre-emptory fashion-Exercise of discretion afresh by appellate court — Whether learned judge incorrectly stated the law with respect to his jurisdiction to set aside consent order — Actual authority — Ostensible authority — Whether learned judge erred in finding that the appellant had given his attorney ostensible and or actual authority to settle the damages and costs at the assessment hearing
This is the judgment of the Court. This is an appeal against the order of Moise J refusing to set aside a consent order dated 24 th February 2020 (“the Consent Order”). The appellant challenges findings of fact and law and alleges various errors on the part of the judge in refusing to set aside the Consent Order.
The appellant alleges in the grounds of appeal that the learned judge:
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a. Erred by relinquishing his duty to satisfy himself of the duty placed on him as a matter of law to determine whether the court had jurisdiction to treat with the application to set aside the Consent Order before attempting to determine whether to set aside the Consent Order.
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b. Erred in failing to find that as a fact on the uncontradicted evidence before him the appellant's former counsel had acted outside the scope of their actual authority.
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c. Erred in finding that none of the cases, in particular Racz v Mission (District) 1 on facts pari materia;
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d. Erred in failing to make a determination as to whether there was a lack of authority of the appellant's former counsel so as to set aside the Consent Order.
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e. Erred in giving undue weight and consideration to the position of the defendants when determining whether to set aside the Consent Order and in so doing applied an incorrect test. The question was, and remains, whether counsel was in law and on these facts empowered to enter into the Consent Order on behalf of the appellant. The relevant test on the facts is that pronounced in Racz v Mission (District). The test is not based on an examination of the position of the defendant.
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f. Erred in law and fact by finding that the appellant's former counsel had acted within their ostensible authority in the face of the only evidence before him which was to the effect that they had in fact had an express limitation placed on their authority to compromise the claim so that in law they had no authority to compromise the claim.
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g. Erred by conflating the law in respect of implied, express and ostensible authority of counsel.
In the introductory paragraph of his judgment, Moise J stated that the respondents had obtained summary judgment in their counter- claim against the appellant to which there had not been an appeal. The matter was thereafter scheduled for an assessment of damages. Although the claimant was absent during the assessment, he was represented by counsel. On the day of the assessment the parties held discussions and arrived at a settlement. A consent order was presented to the Master having been signed by counsel acting on behalf of the parties in accordance with rule 42.7 of the Civil Procedure Rules 2000 (“CPR”). The appellant sought to set this order aside primarily on the ground that he did not consent to the terms of the order, was not provided with any advice from his attorneys and that his attorneys were acting outside the scope of his instructions. He therefore wished that the matter be listed for an assessment of damages. The judge then concluded: “I have determined that the application be dismissed with costs to the defendants.”
There is no issue that the court has power to set aside a consent order. Moise J correctly recognised that the question for determination was whether there was a proper basis for interfering with the consent order by setting it aside. The learned judge stated that the balance which the court seeks to create in such cases is finality to litigation. He recognised that a consent order is an order of the court and so far, as it brings an end to proceedings, the parties are bound by its terms. The judge also appreciated that consent orders are of the nature of a contract mutually entered into by the parties. It is not an order which is made after the court has considered the substance of the matter. The judge went on to say that the prevailing principle is that the court is able to set aside a consent order for the same reason that it may invalidate a contract. This represents the legal position.
Moise J observed that the grounds on which the appellant has moved the court, does not relate to mistake, illegality, duress or misrepresentation. His quarrel is that he did not agree to the terms of the consent order despite the fact that his attorneys had represented to the court that he did. The judge noted that the appellant claimed to be aggrieved at the fact that he had not been given proper advice and that there had been a conflict of interest which his attorney did not disclose to him.
The learned judge noted that the Consent Order, dated 24 th February 2020, was entered on 26 th February 2020. It contained a preamble stating that the parties had discussed the matter and came to an agreement on the terms set out in the order. The preamble also stated that the appellant had authorised his counsel to enter into this agreement. It was agreed, at least in so far as the order outlined, that judgment should be entered in the sum of $4,000,000.00 with costs of $600,000.00. The appellant was to also relinquish shares in a company known as Qualie Masonry Products Limited.
Moise J noted that by way of email of 16 th March 2020, the appellant acknowledged the debt and assured the third defendant that he had every intention to comply with the order. He also made requests for periodic payments of the debt. This was on the heels of a threat of committal proceedings against him. Interestingly, the learned judge noted that he did not go on in that email to state that his proposal for the initial settlement of the matter had not been put to the defendants by his attorneys. The appellant started to pay and transferred the shares.
Having referred to the appellant's affidavit in support of his application to set aside the default judgment, Moise J stated that the question for the court to consider is whether the facts relied on by the claimant constitute grounds upon which the court should interfere with the consent order by setting it aside. In that regard, he stated that it is accepted that the court should only do so if it had also been a basis upon which a contract would be invalidated.
In his supporting affidavit, the applicant deposed that he was previously represented by another firm of attorneys; summary judgment had been entered against him; he thereafter sought alternative counsel; his new counsel informed that there was nothing he could do about the summary judgment and that he should negotiate a settlement in the matter. He was not informed of his right to file affidavit evidence in the assessment of damages, notwithstanding the fact that judgment had already been entered. No one informed him that he had a right to be heard on the assessment and to cross – examine witnesses. He also stated that he had given instruction to counsel to offer a settlement in the sum of $1 million to $1.5 million. He stated that although he was informed by counsel that the matter was...
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