Credit Agricole Indosuez v The Owners of the Vessel European Vision et Al
| Jurisdiction | Barbados |
| Judge | Simmons, C.J. |
| Judgment Date | 23 September 2004 |
| Neutral Citation | BB 2004 HC 19 |
| Docket Number | 1345A of 2004 |
| Court | High Court (Barbados) |
| Date | 23 September 2004 |
High Court
Simmons, C.J.
1345A of 2004
Mrs. M. Woodstock-Riley for the plaintiff.
Mr. Elson Gaskin and Ms. Anika Jackson for the Acting Chief Marshal of Barbados.
Jurisdiction - Chief Justice — Award of fees under O.62, rule 59 — Whether leave to appeal against the order is necessary.
This is an application by summons on behalf of the Acting Chief Marshal of Barbados (the Chief Marshal) for leave to appeal against an award of fees by the Chief Justice in favour of the Chief Marshal. The application is made in the Admiralty jurisdiction of the Supreme Court and arises out of the arrest and subsequent sale of a large cruise liner “The European Vision”. The central issue during the argument concerned the jurisdiction of the Chief Justice in so far as it was contended on behalf of the Chief Marshal that, in making an award of fees under Order 62, rule 59 of the Rules of the Supreme Court (R.S.C.), the Chief Justice was not sitting as a judge of the High Court and, (contrary to the terms of the application), leave to appeal was not necessary. So that, the second issue in these proceedings is whether, assuming that the Chief Justice did have jurisdiction to make the original order, leave is necessary to appeal against the order of the Chief Justice reducing the fees of the Chief Marshal on the sale of “the European Vision”. A brief conspectus of the factual background will assist in locating the issues for determination in their proper legal context.
The plaintiff, Credit Agricole Indosuez, is an entity within the Credit Agricole SA group, a European bank, said to be worth in excess of 33 billion Euros in 2003. The plaintiff held a first mortgage over the vessel and alleged that the mortgage was heavily in arrears. The first defendants were the owners of the vessel and the second defendants were the bareboat charterer. In January 2004 the value of the vessel was estimated to be in excess of 220 million Euros.
On 21 January 2004, a warrant for the arrest of the vessel was lodged at the offices of the Chief Marshal for execution. The acting Chief Marshal, Mr. John Trotman, authorised the acting Senior Marshal, Mr. Adrian Lovell, to arrest the vessel. At 1.20 p.m. the same day, the vessel was arrested at the Port of Bridgetown. Thereafter she was under the custody and control of the Chief Marshal. Immediately after the arrest, 9 caveats claiming a total of 926,085.00 Euros were filed in the Supreme Court on 23 and 24 January 2004. A series of sundry applications by interested persons was also made before Blackman, J. and Chandler, J. (acting).
At all times and in accordance with the provisions of Ord. 73, r.2.11 (3) of the R.S.C., the Chief Marshal was given notice of the several applications. He was represented by attorneys-at-law of the Solicitor-General's department. On 4 February 2004 Blackman, J. gave judgment for the plaintiff in the amount of 233,302,727.80 Euros and ordered that the vessel be appraised and sold by the Chief Marshal.
The very next day, 5 February 2004, the plaintiff applied by summons supported by the affidavits of Mr. Barry Gale Q.C. and Ms. Zarina Khan, Attorney-at-Law, for an order that the Chief Justice exercise his discretion to reduce the rate on the fees chargeable on the sale of the vessel by the Chief Marshal as specified in Part II of Appendix 2 Item 63 of Ord. 62, r.59 of the R.S.C. This application for reduction of the rate on the fees has been the springboard for the instant case. It is convenient here to reproduce the relevant Order of the R.S.C.
Rule 59 falls under Part II of Order 62 and is headed “Registrar's and Marshal's Fees and Charges”. Rule 59 provides:
“59. Where it appears to the Chief Justice that the payment of any fee specked in Appendix 2 to this Order, would, owing to the exceptional circumstances of the particular case, involve undue hardship, the Chief Justice may reduce or remit the fees in that case.”
Under Item 63 in the long list of items, the following words appear:
“63. For levy fee and commission on collection or sale
(i) on the first $2 500………………………… 4%
(ii) above $2 500……………………………… 3 1/2%.”
On 11 March 2004, when I heard the application for reduction of the rate on the fees chargeable by the Chief Marshal, the issue before me was whether I ought to reduce the rate of 3 1/2% specified in Rule 63(ii) supra and, if so, to what extent. During the argument on the application, no objection was taken as to the jurisdiction of the Chief Justice to hear and determine the application. Having heard full argument on the application, on 11 March 2004 I reduced the rate on the fees chargeable on the sale of the vessel from 3 1/2% to 0.75% for the reasons set out in paragraphs [33] to [35] below. The reduced fee payable to the Chief Marshal was separate and apart from the expenses incurred by the Chief Marshal in connection with the arrest and custody of the vessel. Those expenses were secured and were payable in addition to the fee chargeable on the sale of the vessel.
On 16 April 2004 the Chief Marshal sold the vessel to Compania Naviera Armonia SA, a Panamanian company, for the sum of 215 million Euros. At the reduced fee, the Chief Marshal was entitled to receive BDS$3.5 million. He is dissatisfied with that award.
On 15 June 2004, some 3 months after the date of my order reducing the rate for the fees of the Chief Marshal, the Chief Marshal filed a summons seeking leave to appeal to the Court of Appeal against the order which I had made on 11 March 2004. His affidavit in support of the summons deposes inter alia:
“7. If the Admiralty Marshal's fee with respect to the sale is paid at the rate prescribed by the Rules of Court, the Government of Barbados would net some $15,400,000.00 Barbados currency. If the reduction made by the Honourable Chief Justice is allowed to stand, then the fee payable would be $3,500,000.00, a potential loss of $11,900,000.00 Barbados currency. A copy of the Bill of Sale in relation to the vessel is now produced and shown to me and is hereto exhibited and marked “J.C.T.1.”
8. The matter is one of great importance and I have been instructed to appeal the said order of the Honourable Chief Justice.
9. I have been advised by my legal representatives that as the order of March 11th 2004 aforesaid, does not fully determine any issue in dispute between the parties, leave of the judge making the order is required before an appeal may be filed.
10. I have been further advised by my legal representatives and verily believe that I have a good and arguable appeal against the order made herein and my draft Notice of Appeal is now produced and shown to me and is exhibited hereto and marked “J.C.T.2.”
11. I am aware that the time limited for filing an appeal of this nature has expired but the delay was due, inter alia, to the demands of time on my office and that of the Solicitor General in trying to effect and complete all matters relating to the sale of the vessel and its safe exodus from Barbados.”
I am grateful to Mrs. Woodstock-Riley and Mr. Gaskin for their concise arguments. Since the application in the present proceedings was one for leave to appeal it was crucial to determine the issue of leave or no leave early. Mrs. Woodstock-Riley submitted that leave to appeal was necessary. Mr. Gaskin, on the other hand, tried to ride two horses at the same time. He submitted, contrary to the strict terms of his summons, that leave was not necessary; on the other hand, he argued that leave was indeed necessary. He was uncertain but very frank. Both counsel agree that whether leave is necessary or not requires an interpretation of the Supreme Court of Judicature Act, Cap. 117A (the Act).
The relevant sections are those which deal with the constitution of the High Court and the jurisdiction of the Court of Appeal. Sections 4, 52 and 54 of the Act are in point. But I pause here to mention two sections of the Constitution of Barbados. First, section 80(1). This enacts:
“80.(1) There shall be for Barbados a Supreme Court of Judicature, consisting of a High Court and a Court of Appeal, with such jurisdiction, powers and authority as may be conferred upon those Courts respectively by this Constitution or any other law.
(2) The Judges of the Supreme Court shall be the Chief Justice and such number of Justices of Appeal and Judges of the High Court as may be prescribed by Parliament.”
In the interpretation section of the Constitution, s.117, it is stated that “Judge” means “the Chief Justice, a Justice of Appeal and Judge of the High Court” where the word “Judge” is used in the Constitution. Thus, where the context so admits, under the Constitution, the Chief Justice may be referred to as a “Judge”. For example, where the Constitution states that “no office of judge shall be abolished while there is a substantive holder thereof’, the word ‘Judge’ includes the Chief Justice. — see s.80(3).
Next, I turn to the Act. From time to time since the enactment of the Constitution in 1966, Parliament has changed the composition of the Supreme Court by increasing the number of judges as the need for an increase arose pursuant to the provisions of s.80(2) of the Constitution. Thus in 1981, the Act was amended to make provision for a separate Court of Appeal. Section 4 of the Supreme Court of Judicature (Amendment) Act, 1981-27, enacted the composition of the High Court, as follows:
“4. (1) The High Court consists of not more than five judges to be styled “judges of the High Court”.
(2) The Chief Justice is ex officio a judge of the High Court.”
...
To continue reading
Request your trial