Clico Holdings (barbados) Ltd v Royal Bank of Canada

• Jurisdiction: Barbados
• Judge: Williams, J.A.
• Judgment Date: 31 July 2002
• Neutral Citation: BB 2002 CA 23
• Docket Number: Civil Appeal No. 27 of 1998
• Court: Court of Appeal (Barbados)
• Date: 31 July 2002

Court of Appeal

Williams, J.A.; Waterman, J.A.; Williams, J.A. (Ag.)

Civil Appeal No. 27 of 1998

Clico Holdings (barbados) Limited

and

Royal Bank of Canada

Appearances:

Dr. R.L. Cheltenham, Q.C. and Mr. Leslie Haynes, Q.C. for the appellant/defendant.

Sir Harold St. John, Q.C. and Mr. Hal Gollop for the respondent/plaintiff.

Jurisdiction - Court of Appeal — Final leave to appeal to the Privy Council — Whether the Court of Appeal had jurisdiction to excuse a party who had failed to comply with the condition of paying the security into the court — within the stipulated ninety day period — The Barbados (Procedure in Appeals to the Privy Council) Order, 1966 (S. 1. 1966 No. 1456) — Finding that the court had no jurisdiction to grant final leave in these circumstances — Finding that though section 4 of the order was silent as to the effect of non-compliance, the court did not have a residual power to do justice in the case.

Williams, J.A. (AG.):

INTRODUCTION

1 At the conclusion of the submissions on July 10, 2002, we dismissed the application of Clico Holdings (Barbados) Limited (“Clico”) for final leave to appeal to Her Majesty in Council and we now give our reasons for so doing.

THE BACKGROUND

2 On November 24, 1993, Royal Bank of Canada (“RBC”) filed a writ against Clico claiming $4.4 million Barbados currency under a Contract of Guarantee. Husbands J. gave judgment on September 23, 1998 in favour of RBC for the said sum with interest. Clico appealed to the Court of Appeal and the appeal was dismissed on July 19, 2001. Clico applied on August 8, 2001 for conditional leave to appeal to Her Majesty in Council, which was granted on September 19, 2001.

APPLICATION FOR FINAL LEAVE TO APPEAL

3 By the terms of the Order granting conditional leave to appeal, Clico was required to comply with two conditions: (i) to provide security in the amount of £500 sterling by way of payment into court within ninety days of the date of (the hearing of) the application and (ii) to take the necessary steps for the purposes of procuring the preparation of the record and the dispatch thereof to England within ninety days of the hearing of the application.

4 The specified ninety days from the date of the hearing of the application expired on December 18, 2001. As a result of an oversight, the security was paid three days late on December 21, 2001. Two months later, on February 26, 2002, Clico applied for final leave to appeal. RBC maintained that the Court of Appeal had no jurisdiction to excuse a party who failed to comply with the condition in (i) above by paying the security outside the ninety-day period.

THE STATUTORY PROVISION

5 The Barbados (Procedure in Appeals to the Privy Council) Order 1966 ( S.I. 1966 No. 1456) provides for applications for leave to appeal to the Privy Council.

6 Although no issue on the time for appealing arose in this appeal, it is convenient to start with section 3 of the Order in Council, which provides as follows:

“3. Applications to the court for leave to appeal shall be made by motion or petition within twenty-one days of the date of the judgment to be appealed from, and the applicant shall give all other parties concerned notice of his intended application”.

This Court has held in two cases that it has no power to extend the twenty-one day period in the Order to accommodate applications filed outside the specified period: Boyd-Meester v. Fitzwilliam (Civil Appeal No. 7 of 1983) and The Bank of Nova Scotia Trust Company (Caribbean Limited v. Tremblay (Civil Appeal No. 4 of 1997). This Court in the Tremblay case stated that, apart from the “mandatory terms” of clause 3, the Boyd-Meester case was “authority for saying that this Court has no jurisdiction to extend the time within which to appeal”.

7 We now come to consider section 4 of the Order, the interpretation of which is necessary to resolve this application. It provides that:

“4. Leave to appeal to Her Majesty in Council in pursuance of the provisions of any law relating to such appeals shall, in the first instance, be granted by the court only –

• (a) upon condition of the appellant, within a period to be fixed by the court but not exceeding ninety days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the court in a sum not exceeding £500 sterling for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of his not obtaining an order granting him final leave to appeal, or of the appeal being dismissed for non-prosecution, or of the Judicial Committee ordering the appellant to pay the costs of the appeal (as the case may be); and

• (b) upon such other conditions (if any) as to the time or times within which the appellant shall take the necessary steps for the purposes of procuring the preparation of the record and the despatch thereof to England as the court, having regard to all the circumstances of the case, may think it reasonable to impose”.

8 We are constrained by authority to hold that this Court has no jurisdiction to grant final leave in circumstances where the condition imposed by the Order granting conditional leave is breached so that the security is paid outside the ninety days from the date of the hearing of the application. The Privy Council in Roulstone v. Panton (1979) 33 W.I.R. 238 in considering a similar Order in Council for the Cayman Islands, held that there is a distinction between condition (a) and (b) of section 4. Lord Russell stated:

“In their Lordships' opinion there is a crucial distinction between the two types of condition. In the one case there is a maximum period of 90 days laid down by the Order in Council, and clearly the court has no jurisdiction to alter the Order in Council by extending that period (emphasis added); and it was so held by the Court of Appeal of Jamaica under parallel provisions of the Jamaica (Procedure in Appeals to Privy Council) Order in Council 1962: see Smith v. McField (1968) 10 Jamaica LR 555. But it is left at large for the court to determine what period is to regulate the condition” with regard to the preparation and despatch of the record.

In Smith v. McField, (supra) Luckhoo, J.A. in the Court of Appeal of Jamaica explained the position clearly as follows:

“The scheme of the Order in Council contemplates two distinct stages in the granting of an application for...