Fairfield Sentry Ltd ((in Liquidation)) Applicant/Respondent v [1] Alfredo Migani & 22 others [2] Banco General SA/Banca Privada & 30 others [3] Bank Julius Baer & Company Ltd & 26 others [4] Bank Julius Baer & Company Ltd and Others [5] Arbitral Finance Inc. and 23 others [6] Bank Julius Baer & Company Ltd & 33 others [7] Wise Global Fund Ltd [8] Credit Suisse London Nominees Ltd Respondents/Applicants
| Jurisdiction | British Virgin Islands |
| Judge | Pereira CJ [AG.] |
| Judgment Date | 04 October 2012 |
| Neutral Citation | VG 2012 CA 12 |
| Judgment citation (vLex) | [2012] ECSC J1004-1 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | HCVAP 2011/041–052 HCVAP 2011/058–062,HCVAP 2011/041–052 HCVAP 2011/058–062 |
| Date | 04 October 2012 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mde. Janice M. Pereira Chief Justice [Ag.]
The Hon. Mde. Louise Blenman Justice of Appeal
The Hon. Mr. Mario Michel Justice of Appeal
HCVAP 2011/041–052
HCVAP 2011/054–056
HCVAP 2011/058–062
Mr. Jonathan Crowe, QC with him, Mr. Andrew Westwood for Fairfield Sentry Limited
Mr. Mark Hapgood, QC with him, Mr. Kissock Laing for the Harney Westwood & Riegels Respondents/Defendants
Mr. Paul Webster, QC with him, Ms. Nadine Whyte for the O'Neal Webster Respondents/Defendants
Mr. Robert Foote with him, Ms. Claire Goldstein for the Ogier Respondents/Defendants
Ms. Arabella di Iorio with her, Ms. Victoria Lord and Mr. Brian Lacey for Maples and Calder Respondents/Defendants
Civil appeal - Conditional appeal for leave to appeal to Her Majesty in Council - Whether leave of court is a prerequisite where an appeal lies as of right - Whether court has an inherent jurisdiction to extend time for filing application for conditional leave to appeal.
Both the appellant (Sentry) and the respondents ("PI Defendants") had judgment determined by this Court in their favour on issues pertaining to the interpretation of Article 11 of Sentry's Articles of Association and whether the PI Defendants had given good consideration on surrendering their shares respectively. Thereafter, they made applications for conditional leave to appeal to Her Majesty in Council ("the application") against various parts of the judgment. They both claimed that their appeals lie as of right to the Privy Council as the matter in dispute was of the value of £500 or upwards and the decision given was a final one in civil proceedings.
The application made by the PI Defendants was made within twenty-one days which is the time limit prescribed under Article 4 of The Virgin Islands (Appeals to the Privy Council) Order 1967 ("the 1967 Order"); however Sentry's application was made outside the time limit. Sentry contended that the Court has an inherent jurisdiction within which time can be extended for the filing of the application; furthermore, that the PI Defendants' application was required to be served within the twenty-one day period and was accordingly also out of time. Sentry also argued that since the appeal is as of right, leave to appeal is not necessary.
Held: granting the PI Defendants' application for conditional leave to appeal; dismissing Sentry's application for leave to appeal; and ordering that Sentry pay one set of costs in respect of the PI Defendants on the application, that:
1. Article 4 of the 1967 Order stipulates that leave to appeal shall be made within twenty one days of the date of the decision appealed from and that the applicant shall give all other parties concerned notice of his intended application. The PI Defendants complied with this two-stage requirement. There is nothing in Article 4 which makes the validity of the application for leave to appeal dependant on the service of the application within twenty one days. Accordingly the PI Defendants' application for leave to appeal, it being an appeal as of right and timely, is valid.
Texan Management Limited et al v Pacific Electric Wire & Cable Company Limited [2009] UKPC 46 followed; John Goddard v National Development Corporation St. Lucia High Court Civil Appeal No. 17 of 1988 (delivered 25 th October 1990, unreported) not followed.
2. Although the appeal is an appeal as of right, leave of the Court of Appeal is still obligatory. The purpose of the application for leave to appeal is to confirm that the appeal is 'as of right' and to impose such limited conditions as are permitted by law.
E. Anthony Ross v Bank of Commerce (Saint Kitts Nevis) Trust and Savings Association Limited [2010] UKPC 28 applied.
3. While the inherent jurisdiction may supplement rules of court, it cannot be used to lay down procedure which is contrary to or inconsistent with them, and therefore where the subject matter of an application is governed by a rule it should be dealt with in accordance with that rule and not by exercising the court's inherent jurisdiction. In light of this, Article 4 gave specific directions regarding the time line for making an application for leave to appeal. As such the Court cannot invoke its inherent jurisdiction so as to arrogate to itself a power to extend the time as limited in Article 4. The application for leave to appeal must be dealt with in accordance with the terms and conditions of Article 4 of the 1967 Order.
This is the judgment of the Court. The appellants in civil appeals 41–52, 54–56 and 58–61 of 2011 and described for ease of reference in the proceedings below as the "PI Defendants", and Fairfield Sentry (by its liquidators), the appellant in civil appeal 62 of 2011, ("Sentry") have all made applications for leave to appeal to Her Majesty in Council against various parts of the decision of the Court of Appeal given on 13 th June 2012. The Court of Appeal dismissed the appeals of the PI Defendants and also Sentry's appeal against the decision of Bannister J following trial of various preliminary issues which he had ordered.
Three of the issues concerned the question whether certain documents were certificates within the meaning of Article 11 of Sentry's Articles of Association and are conveniently termed the "Article 11 Issue". The fourth preliminary issue concerned the question whether in surrendering shares in Sentry the PI Defendants had given good consideration for payment of redemption monies and is conveniently termed the "Good Consideration Issue". The Article 11 Issue was determined both in the court below and by this Court in favour of Sentry and the Good Consideration Issue was determined both in the court below and in this Court in favour of the PI Defendants.
It is common ground that the applications of the PI Defendants and Sentry would satisfy the criteria contained in Article 3(1)(a) of The Virgin Islands (Appeals to the Privy Council) Order 1967 ("the 1967 Order") which states, in effect, that an appeal lies as of right from a decision of the Court of Appeal to Her Majesty in Council where:
The applicants all agree (rightly) that the value of the matter in dispute is considerably in excess of £500 and that the decisions on the preliminary issues finally determined those issues between the parties. Here, we rely and adopt the dictum of Sir John Donaldson MR in White v Brunton 1 and applied by the Privy Council in Stratmore Group Ltd. v A.M. Fraser and Others 2 and cited with approval in Othniel R. Sylvester v Satrohan Singh 3 where he stated as follows:
"Where there is a split trial or more accurately, in relation to a non-jury case, a split hearing, any party may appeal without leave against an order made at the end of one part if he could have appealed against such an order without leave if both parts had been heard together and the order had been made at the end of the complete hearing."
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(a) the matter in dispute is of the value of £500 or upwards; and
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(b) the decision is a final one in civil proceedings.
Article 4 of the 1967 Order say that:
"Applications to the Court [meaning the 'Court of Appeal' by definition in the 1967 Order] for leave to appeal shall be made by motion or petition within twenty-one days of the date of the decision appealed from, and the applicant shall give all other parties concerned notice of his intended application."
It is accepted that the PI Defendants have made their application within the 21 day time line set out in Article 4. Sentry, admittedly, has not. In fact Sentry's application was filed on 9 th August 2102, some 36 days out of time.
Sentry takes the point that the PI Defendants are not timely as, notwithstanding that their applications were timeously filed, they were not served within the 21 day period, which Sentry argues, was also required under Article 4 of the 1967 Order. Sentry relies on John Goddard v National Development Corporation, 4 a decision of the Court of Appeal, in which the Court of Appeal construed the similar provision and concluded that the 21 day period applied to both the making of the application and the serving of the application on the parties.
Whilst it is accepted that Article 4 requires both the filing and the service of the application, we are not persuaded that Article 4, on a proper reading of it, requires that the application must also be served within the 21 day period in order, so to speak, for the application to be a valid application. Article 4 in our view makes clear that the motion or petition must be made (filed) within 21 days, but does not in turn say that it must be served within 21 days. It says nothing of the sort and were that the intent (which there are good reasons to doubt - not the least of which may involve practical difficulties of service on all the parties) then this could easily have been stated by saying 'made and served on the parties concerned, within 21 days.' In Texan Management Limited et al v Pacific Electric Wire & Cable Company Limited 5 the Privy Council opined, in effect, in relation to rule 9.7 of the Civil Procedure Rules 2000 which required that an application under that rule was to be made within the time limited for filing a defence and which further required that it must be supported by evidence...
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