Garvey v Wilkinson
| Jurisdiction | Barbados |
| Judge | Mason, J.A.,Burgess, J.A.,Goodridge, J.A. |
| Judgment Date | 29 April 2015 |
| Neutral Citation | BB 2015 CA 7 |
| Docket Number | Civil Application 7 of 2011 |
| Court | Court of Appeal (Barbados) |
| Date | 29 April 2015 |
Court of Appeal
Mason, J.A.; Burgess, J.A.; Goodridge, J.A.
Civil Application 7 of 2011
Mr. Clement E. Lashley, QC in association with Ms. Honor Chase for the applicant
Mr. Ralph Thorne, QC for the respondent
Civil practice and procedure - Striking-out — Whether the Court had the inherent jurisdiction to dismiss the appeal for failure to prosecute — Whether the Court should exercise its inherent jurisdiction to dismiss the appeal where there was non-prosecution of appeal and the non-acknowledgement of the application and the neglect to attempt to answer the applicant's affidavit.
MASON JA: This Application to Dismiss Appeal was filed by the applicant on 9 January 2015. The application is asking that the respondent's Notice of Appeal dated 13 July 2011 be struck out and the appeal dismissed with costs for failure to prosecute the appeal pursuant to Rule 62.11, 62.12(1) to (11) of the Supreme Court ( Civil Procedure) Rules 2008 (CPR).
The application is supported by an affidavit sworn by Mr. Clement E. Lashley, QC who had conduct of the proceedings before the High Court and now before this Court. The facts and circumstances of the application are set out in the affidavit as follows:
“2. A written Judgment in the High Court Suit No. 458 of 2008 Victorine Patricia Garvey applicant and Peter Athelstan Wilkinson respondent was delivered by Mr. Justice Chandler on the 1st July 2011. That decision was in relation to the parties in these proceedings. The issue was the interest of the parties in respect of matrimonial property in a union other than a marriage. The gist of the judgment was, inter alia, as follows:
(1) That the applicant and the respondent are entitled to a 50% share or interest in the chattel property at Danesbury, Black Rock, St. Michael.
(2) That the applicant is entitled to a 50% share in the net rents accrued from the property at Danesbury, Black Rock, St. Michael assessed at $27,618.75.
(3) That the respondent do pay to the applicant a lump sum of $75,000.00 representing her one half share or interest in the property situate at Bush Hall, St. Michael on or before the 30th day of September 2011.
(4) That the respondent do pay the applicant the said sum of $27,618.75 representing her share of rents on or before the 30th day of September 2011.
3. On the 13th July 2011 the respondent filed a Notice of Appeal in the said matter. Thereafter there was Notice of Appointment for the 28th July 2011. Attached also was the appellant's Draft Index of Appeal. There was no meeting for the settling of the record.
4. Notwithstanding the filing of the above documents the appellant has failed to prosecute the Appeal. Furthermore, since the filing of the Notice of Appeal, the appellant died on the 28th August 2012.
5. It is clear given the fact that the Appeal was filed three clear years and five months and there has been no compliance by the appellant with Rule 62.11 and 62.12 of the Supreme Court ( Civil Procedure) Rules 2008 that the appellant has failed to prosecute the Appeal.
6. In a related matter before the High Court by letter dated 24th November 2014 addressed to the applicant's Attorney-at-Law the appellant refers to the Notice of Appeal. This letter is produced to me and marked “CEL 1”.
7. Since the death of the appellant, Letters Testamentary were granted to the Executrix Julia-Ann Clarke on the 18th December 2013. A copy of the Letters Testamentary is produced to me and marked “CEL 2”.
8. This application is being served on the Executrix the said Julia-Ann Clarke so that she may be apprised of the said application.
9. Any costs awarded to the applicant, herein should be paid from the estate of the deceased respondent, in the circumstances”.
The application was served on counsel for the respondent, Mr. Ralph Thorne, QC, who also represented the respondent before the High Court. However, up to the date of this hearing there has been no acknowledgement of the proceedings nor affidavit filed in reply to the application. In consequence, the only evidence before this Court is that contained in the affidavit filed by Mr. Lashley, QC.
At the hearing before this Court, Mr. Lashley, QC applied for leave to amend the application. He conceded that this Court under Rule 62.11, 62.12(1) to (11) of CPR had no jurisdiction to dismiss an appeal for failure to prosecute an appeal as stated in the application. He submitted that it ought to have been filed under section 61(1) (e) of the Supreme Court of Judicature Act Cap. 117A (Cap. 117A) and/or the Court's inherent jurisdiction.
Without conceding that this Court had the jurisdiction claimed by Mr. Lashley, QC, Mr. Thorne, QC did not object to the amendment being granted. Accordingly, leave was granted.
On the assumption that this Court had jurisdiction to do so, Mr. Lashley, QC argued that the appeal ought to be struck out given the length of time which had elapsed since the filing of the Notice of Appeal — some 3 years and 5 months — and that there has been no application by the appellant/respondent for a stay of the proceedings nor for an extension of time within which to prosecute the appeal. Counsel submitted that it would be an abuse of process to permit the matter to continue.
In his reply Mr. Thorne, QC...
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