The Nevis Island Administration Applicant v [1] La Copropriete Du Navire J31 [2] Auxiliaire Maritime J31 S.A. [3] Saint Nicolas De Barry 1 S.A.S. [4] Saint Nicolas De Barry 2 S.A.S. [5] Saint Nicolas De Barry 3 S.A.S. [6] Selnic S.A. [7] Saint Nicolas Du Barry Iv S.A. (formerly known as Quirats + S.A.) [8] Eurimob S.A. Respondents [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: BARROW, J.A.,Denys Barrow, SC,Justice of Appeal
• Judgment Date: 03 April 2006
• Judgment citation (vLex): [2006] ECSC J0403-2
• Court: Court of Appeal (Saint Kitts and Nevis)
• Docket Number: CIVIL APPEAL NO.7 OF 2005
• Date: 03 April 2006

[2006] ECSC J0403-2

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Denys Barrow, SC Justice of Appeal

CIVIL APPEAL NO.7 OF 2005

Between:

The Nevis Island Administration

Applicant

and

[1] La Copropriete Du Navire J31

[2] Auxiliaire Maritime J31 S.A.

[3] Saint Nicolas De Barry 1 S.A.S.

[4] Saint Nicolas De Barry 2 S.A.S.

[5] Saint Nicolas De Barry 3 S.A.S.

[6] Selnic S.A.

[7] Saint Nicolas Du Barry Iv S.A. (formerly known as Quirats + S.A.)

[8] Eurimob S.A.

Respondents

On written submissions

Browne and Associates for the Applicant

Daniel, Brantley & Associates for the Respondents

BARROW, J.A.

1 For over six months the lawyers for the applicant persisted in the view that they did not need leave to appeal the decision of Baptiste J., given on 12 ^th April 2005, striking out their claim against the defendants. It was only when Rawlins J.A., on 29 ^th December 2005, struck out their purported Notice of Appeal as a nullity, for having been filed without first obtaining leave to appeal, that the lawyers for the applicant say they knew that they needed leave to appeal because it was an interlocutory order that they wished to appeal. They had, however, on 24 ^th October 2005 filed an application for an extension of time within which to apply for leave to appeal as a "precautionary measure". Comes now for determination that application.

2 The solicitors for the respondents say the application was made far too late; that the delay was inordinate. Counsel for the applicant says that whether the delay is inordinate is not solely a matter of the length of time elapsed but also a matter of the circumstances that led to that lapse. Counsel for the applicant submitted that the criteria against which to consider an application for extension of time are no longer those adumbrated in Quillen v Harney, Westwood & Reigels (No. 1)1, which was decided before the introduction of Civil Procedure Rules 2000. In that case, on which the respondents based their submissions, four factors were identified for consideration in deciding whether to exercise the judicial discretion in favour of a dilatory applicant, namely (1) the length of the delay, (2) the reasons for the delay, (3) the chances of the appeal succeeding if the application is granted, and (4) the degree of prejudice to the respondents if the application is granted.

3 Counsel for the applicant submits that in this jurisdiction we should be guided by the decision of the English Court of Appeal in Sayers v Clarke Walker2, which is to the effect that the criteria relevant to an application for an extension of time for appealing are those contained in CPR 2000, at rule 26.8, which provides:

• "(1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be —

  • (a) made promptly; and

  • (b) supported by evidence on affidavit.

• (2) The court may grant relief only if it is satisfied that —

  • (a) the failure to comply was not intentional;

  • (b) there is a good explanation for the failure; and

  • (c) the party in default has generally complied with all other relevant rules, practice directions, orders and directions.

• (3) In considering whether to grant relief, the court must have regard to —

  • (a) the effect which the granting of relief or not would have on each party;

  • (b) the interests of the administration of justice;

  • (c) whether the failure to comply has been or can be remedied within a reasonable time;

  • (d) whether the failure to comply was due to the party or the party's legal practitioner; and

  • (e) whether the trial date or any likely trial date can still be met if relief is granted.

4 The argument in favour of relying on the criteria laid down in rule 26.8 recognizes that there is no express sanction prescribed for failing to apply for leave to appeal in time, in the way, for example, that failure to file a witness statement is visited with the sanction that the witness shall not be called. 3 However, although not expressed as such, the consequence that an intending appellant who fails to apply in time for leave to appeal when leave is required may not thereafter apply for leave to appeal is nonetheless a sanction. It is because the application for relief against that consequence or sanction is in essence no different in nature from the standard application for relief from an express sanction that it is appropriate, in my judgment, that the criteria prescribed in rule 26.8 should be applied.

5 An undoubted advantage that is to be gained from relying on the criteria for granting relief from sanction that CPR 2000 prescribes is certainty. There is no longer need to rely on judge made criteria with the uncertainties that attend varying judicial viewpoints as to what those criteria should be and what emphasis should be given to which of them. For example, in the Quillen case Singh JA stated that the appearance of "some chance of success" 4 of the proposed appeal trumped both inordinate delay (six months) and the clear absence of good reason for delay. 5 It was emphasized that the discretion to extend time was unfettered. 6 In contrast, certain of the criteria that are set out in rule 26.8 are made conditions precedent to the grant of relief and the court is expressly precluded from granting relief if certain of them are not satisfied. Therefore, the discretion to grant relief

under CPR 2000 is distinctly fettered and, it may be noted, this is in sharp contrast to the open discretion that is found in the comparable English rule 3.9 (1).

6 The starting point in applying the criteria set out in rule 26.8 is the promptitude of the application for relief from sanction. Counsel for the applicant conceded that "prima facie, the delay in bringing this application might be viewed as being less than prompt." However, counsel submitted, it is fundamental to any fair evaluation of delay that there be an evaluation of the reason the application was not made sooner. "Promptness" is not an absolute concept, it was submitted: whether an application has been made promptly can only be assessed by reference to the prevailing circumstances. Counsel submitted that it is of no assistance simply to cite the length of delay in other cases in which an extension was refused, because they were decided on their own particular facts.

7 Counsel for the applicant thought the case of Sayers was particularly helpful to the instant application. In that case the appellant's solicitors were not familiar with the...