Rudolph George Appellant v Ivan Chinnery Respondent
| Jurisdiction | British Virgin Islands |
| Judge | REDHEAD, J.A,SAUNDERS J.A |
| Judgment Date | 29 September 2003 |
| Neutral Citation | VG 2003 CA 4 |
| Judgment citation (vLex) | [2003] ECSC J0929-3 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | CIVIL APPEAL NOS. 14 and 15 OF 2002 |
| Date | 29 September 2003 |
IN THE COURT OF APPEAL
The Hon. Mr. Albert Redhead Justice of Appeal
The Hon. Mr. Adrian Saunders Justice of Appeal
The Hon. Mr. Ephraim Georges Justice of Appeal [Ag.]
CIVIL APPEAL NOS. 14 and 15 OF 2002
Mr. Joseph Archibald QC; Miss. Anthea Smith with him for both Appellants
Mrs. Dancia Penn QC; Mr. Clyde Williams with her for all three Respondents
REDHEAD, J.A.: Both appeals involve a determination under the Old Rules (1970 Rules of the Supreme Court) as to whether the cause or matter in each of the suits was deemed abandoned by Virtue of Order 34 Rule 11. Although the facts in Civil Appeal No. 14 - Rudolph George v. Ivan Chinnery-are different from those in Civil Appeal No. 15 - Cyril Romney v Lucia Penn et al -, the issue which is to be decided in both cases is the same and therefore both cases were heard together.
In the case of George, the Testator, Albert Chinnery, appointed the respondent, Ivan Chinnery executor of his will.
By that same will he left a share in a two-story building to the appellant and his brother.
On the 16 th October 1996 the appellant commenced proceedings in the High Court of the British Virgin Islands by issuing a Writ of Summons in which he sought a declaration that he was entitled to a half share in the property.
On 21 st February 1997 the appellant applied by way of summons for an interlocutory injunction. This was heard in September 1997. The judge ordered that the case be adjourned for a report for a settlement. The learned judge also ordered the appellant and the respondent to exchange pleadings while settlement negotiations continued. A statement of claim was filed on 23 rd March 1998 and the defence filed on 18 th June 1998. On 3 rd July 1998 Summons for Directions was filed. This was heard on 27 th July 1998. The order made on that Summons was filed on 27 th July, 1998.
No further documents were filed or proceedings had in this case until October 2001 when the case was set down for Case Management Conference by the Court Office.
On 12 th November 2001 Solicitors for Ivan Chinnery applied by way of Notice of Motion for an order that this case was deemed abandoned.
In a written judgment Rawlins J. made the Order, stating inter alia
"… This case is deemed abandoned and incapable of being revived as of 27 th July 1999 by the Operation of Order 34 rule 11(i)(a) of the 1970 Rules. It could also have been deemed abandoned on or about 5 th December 1999 by the Operation of Order 34 11(i)(b) of the 1970 Rules."
The appellant is dissatisfied with this ruling and has appealed to this Court.
The Grounds of Appeal are;
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(a) The learned trial Judge erred in law when he applied the Rules of Supreme Court 1970 instead of the Civil Procedure Rules 2000 when determining the application to strike the matter from the Court's list.
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(b) The learned trial Judge was wrong in law when he failed to give any or sufficient consideration to Part 1 of the Civil Procedure Rules 2000, that is the overriding objective.
The facts of Cyril Romney are as follows: The original claimant, William Smith, was the husband of Iris Penn-Smith. She died intestate and without issue on 2 nd November 1993. Mr. Smith obtained Letters of Administration to her estate as the sole Administrator on 3 rd May 1999. He died on 7 th February, 2002. An application for probate of his will was filed on 19 th March, 2002.
Mr. William Smith instituted action by Writ of Summons, generally endorsed, on 29 th August 1996. He sought a declaration that he was entitled to be the sole registered proprietor of the matrimonial home in which he resided with his wife prior to her death, and land therewith, notwithstanding the provisions of the Intestates Estates Act Cap 34 of the Laws of the British Virgin Islands. On 21 st January 1997 Solicitors for Mr. Smith issued an ex parte summons for leave to serve the writ on Mr. Roland Penn out of the jurisdiction. On 17 th April, 1997 Dancia Penn & Co. entered appearance on behalf of Mr. Roland Penn.
No further documents were filed or proceedings had until 29 th June 2000.
On that date Solicitor for the Respondent issued a summons to dismiss the action on the ground that the matter should be deemed abandoned under the provisions of Order 34 Rule 11(i) of the 1970 Rules. They prayed in the alternative, that the action be dismissed for want of prosecution as an abuse of the process of the Court.
Rawlins J. in granting the respondent's application ordered:
"It is hereby ordered that this case was deemed abandoned and is incapable of being revived by the operation of Order 34 Rule 11 (i)(a) of the 1970 Rules with effect from the 17 th day of April 1996."
This appellant is also dissatisfied with the judge's ruling and has appealed to this Court.
The Grounds of Appeal filed by the appellant are:
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(a) The learned trial Judge erred when he applied the Rules of the Supreme Court 1970 instead of the Civil Procedure Rules 2000 when determining the summons to dismiss the Action.
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(b) The learned trial Judge was wrong when he failed to give any or sufficient consideration to Part 1 of the Civil Procedure Rules 2000, that is the overriding objective.
I deal with Rudolph George's appeal first. No. 14 of 2002. Rawlins J in a careful written judgment traced the history of this matter from the time of its filing up to the date the last document was filed.
Order 34 Rule 11(i)(a) of Supreme Court Rules 1970 mandated:
"A cause or matter shall be deemed altogether abandoned and incapable of being revived if prior to the filing of a request for hearing or consent to judgment or the obtaining of judgment "(a) any party has failed to take any proceeding or file any document therein for one year from the date of the last proceeding had or the filing of document therein (b) no application for or consent to revivor has been filed within six months after the matter has been deemed deserted."
The provision is quite clear and without any ambiguity.
The last document as noted above, was filed in this matter or 27 th July 1998. Was there anything done by the respondents which would be regarded as a waiver so as to prevent the respondents benefiting from the rule? (See Gustave Alvanley Frett by his personal representatives Gwen Alva, Derrick Atley Frett and Idalla Davies, Haldane Davies - Respondents Civil Appeal No. 2 of 1995 - British Virgin Islands).
In an affidavit deposed to and filed by Ms. Michelle Matthew on 19 th March 2002 by paragraph 14 she swore as follows:
"By letter dated 26 th August 1998. Astra Penn wrote to legal practitioners for the claimant seeking an extension of time of exchanging Lists of Documents; and to reopening negotiations with a view to settling the matter and therefore arranging a meeting between the parties and Counsel on their own behalf."
One thing that is beyond doubt, on that date 26 th August, 1998, the matter was not deemed to be abandoned, so in my judgment there could have been no waiver on the date.
Was this letter a "proceeding" for the purpose of the satisfaction of the rule?
Mr. Archibald QC in his skeleton arguments submitted.
"As stated in the case of Mundy v Butterly & Co. Ltd (1932) 2 Ch 229 and in Barrow v Caribbean Publishing Co. Ltd. 11 14 I.R. 461 a "proceeding" is defined as "something in the nature of a formal step, either an application to the Court or at least a step taken by a litigant in prosecution of the action being a step which is required by the rules."
In Barclay Davit Co. Ltd v Samuel Taylor and Sons (Brierley Hill) Ltd. 1946 2 Ch.d. 41. The Court was called upon to interpret "proceeding" in the English R.S.C. Ord. 26 r 6.
At page 45 Romer L.J. said:
"I think the rule intended a proceeding which is to have the effect of continuing the action - not a proceeding which has the effect of putting an end to the action."
I make the observations that regarding the communication i.e. the letter dated 26 th August from Ms. Astra Penn. There was no response from the other side to this communication initiated by the respondents. The second comment is that it was an invitation to meet with a view to discontinuing the action. In my opinion that could hardly be regarded as a proceeding.
The more fundamental question that has to be considered for the determination of this matter, in my view, is when was this matter deemed abandoned.
Byron J. A. (as he then was) in Gustave Alvaney Frett (Supra) at page 1 in holding that Order 34 Rule 11(i)(a) of the Rules of the Supreme Court 1970 empowers the Court to deem the cause abandoned and incapable of being revised because more than one year had elapsed after the entry of appearance on 4 th August 1991 before any party took any proceeding or filed any document in the matter. He also agreed with the opinion expressed in St. Hilaire and Baptiste v Lewis Civil Appeal No. 2 of 1992 St. Vincent and the Grenadines that the party benefiting from that rule could waive it.
At page 2 of the judgment Byron J.A. said:
"I do not construe Order 34 rule 11 (i)(a) to substitute an automatic dismissal on the expiration of the time prescribed, for an order of the Court to make an application of a party to the cause. It's language does not require that interpretation and that is a clear indication that such a construction was not intended in any event an automatic dismissal would involve a serious departure from existing practice."
In Isaac v Robertson 43 WIR 126 at 129. Lord Diplock after referring to Order 34 rule 11 (i)(a) said:
"Both Glasgow J and the Court of Appeal were of the opinion that, upon the facts as to the course of the proceedings in the instant...
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