Gregory Gilpin-Payne v Stephen First
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Farara JA |
| Judgment Date | 21 July 2020 |
| Judgment citation (vLex) | [2020] ECSC J0721-1 |
| Docket Number | SKBHCVAP2019/0028 SKBHCVAP2019/0031 SKBHCVAP2019/0032 SKBHCVA2019/0033 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Date | 21 July 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mde. Louise Esther Blenman Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal
The Hon. Mr. Gerard St. C Farara, QC Justice of Appeal [Ag]
SKBHCVAP2019/0028
SKBHCVAP2019/0030
SKBHCVAP2019/0031
SKBHCVAP2019/0032
SKBHCVA2019/0033
Mr. D. Victor Elliott-Hamilton for the Applicants/Appellants
Ms. Vanessa Fennel for the Respondents
Mr. Terrence V. Byron for the Respondent
Ms. Renal Edwards holding papers for Ms. Angelina Sookoo-Bobb holding a watching brief for the third Respondent
Ms. Jean Dyer for the Respondents
Applications to admit fresh evidence — Refusal by judge to recuse himself — Principles in Ladd v Marshall — Application of Ladd v Marshall principles to interlocutory applications — Whether applicants can rely on events and documents coming into existence after judge's refusal to recuse himself as fresh evidence in satisfaction of first limb in Ladd v Marshall – – Whether applicants satisfied the second limb in Ladd v Marshall — Whether court can grant leave to rely on a judgment and orders of the lower court without a transcript of the proceedings — Whether in all the circumstances the court ought to grant the application to admit fresh evidence to give effect to the overriding objective to do justice
These matters concern five applications to admit three documents as fresh evidence at the hearing of the interlocutory appeals in each of the five listed matters. The documents are: (i) the judgment of Ventose J made 14 th October 2019 in SKBHCV2012/0154 – Gerald Lou Weiner and Kathleen Ann Weiner v Adam Bilzerian; (ii) the order made by Ventose J on 31 st October 2019 in SKBHCV2016/0082 – Stephen First and Corporate Capital (Asia) Limited v Gregory Gilpin-Payne and International Investments & Consulting Limited; and (iii) the order made by Ventose J on 30 th January 2019 in SKBHCV2017/0072 – Adam Bilzerian, Lemon Grove Company Limited, and Caribbean Building Systems (St. Kitts) Ltd v Terence V. Byron, Byron & Byron and Kevin Horstwood (“the documents”).
Each of the appellants/applicants filed a separate application to rely on the documents as fresh evidence in the interlocutory appeals. However, by consent, the Court heard oral argument and submissions from counsel for the parties in only the application filed in SKBHCVA2019/0033, as all five applications concerned the same issues of law and fact and were in substance identical. The parties also agreed that the hearing of the application in SKBHCVAP2019/0033 would be dispositive of the applications in all five matters.
The applicants argued that the documents sought to be adduced as fresh evidence were necessary to support their appeals which challenged the decision of Ventose J, made on 25 th July 2019, dismissing two applications for him to recuse himself. The applicants argued that the documents satisfied the principles in Ladd v Marshall [1954] 3 All ER 745 (“the Ladd v Marshall principles”) for the admission of fresh evidence in that they: (i) could not have been obtained with reasonable diligence for use at the hearing of the recusal applications; (ii) would probably have an important influence on the result of the recusal applications; and (iii) were clearly credible evidence. Based on these principles, the applicants submitted that they ought to be allowed to rely on the documents at the hearing of their appeals.
The respondents in SKBHCVA2019/0033 opposed the application on the ground that the second limb of the Ladd v Marshall principles was not satisfied, having conceded that the first and third limbs had been met. The respondents submitted that: (i) the court could not consider the cumulative effect of the documents in deciding whether they point to evidence of apparent bias on the part of the learned judge; and (ii) the court could not properly consider these documents without more, specifically, without the benefit of the transcripts of the proceedings below.
Held: allowing the applications to admit fresh evidence in all five matters; and directing the filing of written submissions on costs within 7 days of the date of the judgment, that:
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1. The criteria in Ladd v Marshall for the admission of fresh evidence are principles and not special rules to be strictly applied by the court. It is no longer necessary for an applicant to show some special ground for the grant of permission to rely on fresh evidence upon the hearing of an appeal. They are principles which must be broadly applied, but relaxed in appropriate cases to give effect to the overriding objective of the court to do justice. This is especially so when considering an appeal from a decision on an interlocutory application. However, an applicant must produce strong grounds to merit the appellate court exercising its discretion in its favour. Accordingly, these being appeals from a decision on interlocutory applications, are appropriate case in which the principles for adducing fresh evidence set out in Ladd v Marshall should be applied in a more flexible and relaxed manner.
Hertfordshire Investments Ltd v Bubb [2000] 1 LR 2318 applied; Langdale and Another v Danby [1982] 1 WLR 1123 applied; Star News Shops Ltd v Stafford Refrigeration Ltd [1998] 1 WLR 536 applied; Honourable Guy Joseph (in his personal capacity and in his capacity as Parliamentary representative for Castries South East) v The Constituency Boundaries Commission et al SLUHCVAP2015/0013 (delivered 1st October, 2015, unreported) applied.
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2. As to the first limb of the Ladd v Marshall principles, that the evidence which is sought to be adduced at the appeal stage must be evidence which could not have been obtained with reasonable diligence for use at the hearing below, fresh evidence is not limited to evidence which was in existence at the time of the hearing in the court below, but also includes evidence which came into existence subsequent to the hearing below. Accordingly, the documents satisfy the first limb of the Ladd v Marshall principles.
Staray Capital Limited and another v Cha, Yang (also known as Stanley) [2014] ECSCJ No. 172 applied.
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3. There is no rigid rule or principle that, absent the transcripts of the hearing below, an appellate court must refuse an application to rely on a judgment and/or orders of a lower court as fresh evidence. The fundamental principle is that an application to adduce fresh evidence must satisfy the Ladd v Marshall principles which are to be approached in a somewhat relaxed or less rigid manner in the instant appeals from interlocutory applications. In doing so, the court must consider all relevant factors, including the cumulative effect of the judgment and orders sought to be admitted as fresh evidence upon the hearing of these appeals.
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4. The argument by the respondents in SKBHCVAP2019/0033 that the documents ought not to be admitted as fresh evidence because those respondents were not parties to the proceedings in which the judgment and orders were made and, hence, would be at a disadvantage or would be prejudiced upon the hearing of the appeal, is not correct. The fundamental issue, which is not in dispute, is whether the documents are credible evidence, and whether, taken individually or in combination with other evidence, they would probably have an important influence on the result of the recusal applications.
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5. In deciding whether the appellants have satisfied the second limb of the Ladd v Marshall principles, that the evidence sought to be adduced would probably have an important influence on the result of the hearing below, this Court is entitled, and ought to consider, whether the documents, when considered individually or weighed cumulatively, in combination with each other or with other admissible evidence, would tend to show, to the informed fair-minded observer, a lack of fairmindedness or apparent bias on the part of the learned judge.
Marie Joseph Charles Robert Lesage v The Mauritius Commercial Bank Ltd [2012] UKPC 41 applied.
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6. The documents sought to be relied on by the applicants satisfied the second limb of the Ladd v Marshall principles in that, when they are considered objectively and in the light of the Court's overriding objective to do justice between the parties, they would probably have had an important influence, as distinct from a definitive influence, on the outcome of the recusal applications. These documents which, inter alia, speak to prohibiting Mr. Paul Bilzerian from appearing and making representations for and on behalf of parties in these five matters, can be utilised to buttress the applicants' case that the learned judge probably lacks the impartiality or fairness necessary to continue to preside over and to determine issues in relation to these five matters before the High Court of Justice. In this court's view, the justice of these matters requires that the applicants be permitted to rely on the documents as fresh evidence at the hearing of their respective appeals from the order of the learned judge refusing to recuse himself.
Ladd v Marshall [1954] 3 All ER 745 applied; Marie Joseph Charles Robert Lesage v The Mauritius...
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