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[l] This case has the distinction of being the
first to reach the Caribbean Court of Justice. It is an application for
special leave to appeal to this Court from a decision of the Court of Appeal
of Barbados dismissing an appeal against an order made by Husbands J.
striking out the amended defence in an action for defamation brought by the
respondents to this application (to whom I shall sometimes refer as 'the
plaintiffs') against the applicant (to whom I shall sometimes refer as 'the
defendant'). Husbands J. also ordered that judgment be entered against the
defendant for damages to be assessed and costs.
[2] The defamatory matter complained of in this action is contained in three
calypsos which were alleged to have been played frequently by the defendant
on its radio stations in June and July 1989, during the 'run-up' to the
annual 'Crop Over' Festival and were broadcast live by the defendant when
sung at the semi-finals and finals of the calypso competition held in
connection with that festival. The nub of the plaintiffs' complaint is that
all three calypsos alleged that they were selling to the public or for
consumption by the public, diseased chickens which had died and not been
slaughtered. The amended defence filed did not admit the broadcasts in
question and contained a plea of justification.
[3] The ground on which the defence was struck out, was the failure of the
defendant to comply with an order made by Chief Justice Williams that if the
defendant did not file by a specified date a further and better list of
documents that were or had been in its possession, custody or power relating
to the matters in question in the action, the defence should be struck out
and judgment entered against the defendant for damages and costs.
HISTORY OF THE PROCEEDINGS
[4] The original order for discovery was made on the summons for directions
on the 7th July, 1992, by Husbands J. and required both sides to file and
serve their respective lists of documents within 42 days. In fact the
plaintiffs did not file their list of documents until the 15th September,
1993 and the defendant filed its list on the 23rd November, 1993.
[5] The plaintiffs believing the list filed by the defendant to be
incomplete, applied by summons dated the 12th October 1994, for an order
inter alia that the defendant file a further and better list of documents
within 14 days. The defendant not appearing, an order in terms of the
application was made by Chief Justice Williams on the 24th November, 1994.
The defendant not having filed any further and better list of documents
within the prescribed time, the plaintiffs by summons dated the 30th
December, 1994, applied for the 'unless' order which was made by the Chief
Justice after hearing counsel on both sides on the 20th February, 1995.
[6] The defendant filed what purported to be a further and better list of
documents and a verifying affidavit within the time allowed by the 'unless'
order. The only respects, however, in which the further and better list
differed from the original list was that it corrected an error by
substituting a 'record' of one of the calypsos for a 'tape' of that calypso
in the list of documents in the defendant's possession, and added to that
list four letters that were quite inconsequential.
[7] The plaintiffs insisted that the defendant had, or had had, in its
possession custody or power other documents which had not been disclosed,
notably tapes of the three calypsos and a record in electronic or other form
of the occasions when they were played on the defendant's radio stations.
Accordingly, the plaintiffs applied by summons on the 13th March, 1995, for
an order that the amended defence be struck out and that judgment be entered
for the plaintiffs for damages and costs. The hearing of that summons by
Husbands J. was completed on the 19th September, 1996. His reserved judgment
was not delivered until the 24th November, 1999, that is, more than three
years later. As already indicated, he made the order sought by the
plaintiffs.
[8] An application for leave to appeal against that judgment was filed on
the 7th December, 1999. Leave was granted and the appeal heard by the Court
of Appeal on the 17th July, 2000. Judgment was reserved and was delivered by
the Court of Appeal on the 20th August, 2004, that is, more than four years
later. The Court of Appeal dismissed the appeal and affirmed the order of
Husbands J.
[9] On the 10th September, 2004, the defendant applied by motion to the
Court of Appeal for leave to appeal to the Judicial Committee of the Privy
Council against the judgment of the Court of Appeal. That application was
heard on the 7th and 8th March, 2005. On the 23rd June, 2005, the Court of
Appeal gave judgment refusing leave to appeal to the Judicial Committee. In
fact, on a cross-application made by the respondents, the Court of Appeal
struck out the application for leave as frivolous and vexatious and an abuse
of the process of the Court. In doing so, the Court of Appeal rejected a
number of technical grounds advanced by the respondents but accepted the
submission that an appeal to the Privy Council was bound to fail as it
sought to challenge concurrent findings of fact made by the courts in
Barbados. I should state here that it is the view of this Court that the
respondents' counter-motion should not have been entertained. It merely
served to add unnecessarily to the costs as the same arguments by which it
was supported, could and should have been used in opposition to the motion.
[10] On the 15th July, 2005, the present application for special leave to
appeal to this Court, was filed.
THE JURISDICTION ISSUE
[11] The application to this Court is based on the premise that subject to
the applicant obtaining from this Court the special leave which it seeks, it
has a right of appeal to this Court. The respondents never sought to
challenge the existence of this right and even after the matter was raised
by the Court with the applicant's counsel in the course of his oral
submissions, counsel for the respondents did not accept the implied
invitation to address this issue. Nevertheless, since it is an issue which
goes to our jurisdiction, I think we must address it. The question put
broadly is whether the legislation by which the Judicial Committee of the
Privy Council was replaced by the Caribbean Court of Justice as the final
court of appeal for Barbados, has any, and if so, what impact on the
applicant's right to pursue an appeal against the Court of Appeal's decision
affirming the order of Husbands J.
THE LEGISLATION
[12] The legislation in question consists of two principal Acts. The first
is the Constitution (Amendment) Act, 2003 ('the 2003 Act'). This Act amended
the Barbados Constitution firstly by substituting the words "the Caribbean
Court of Justice" for the words "Her Majesty in Council" wherever the latter
appeared in the Constitution. The 2003 Act also inserted in the Constitution
a number of new sections numbered and lettered consecutively 79B to 79I
dealing with various aspects of the Caribbean Court of Justice.
[13] The new section 79C provides:
"There is constituted a Judicature consisting of
[a] The Caribbean Court of Justice Established by the Agreement; and
[b] the Supreme Court of Judicature and Magistrates' Courts that shall
exercise jurisdiction under the Constitution or any other law."
The Supreme Court of Judicature is defined in the amended section 80 (1) as
consisting of the Court of Appeal and the High Court.
[14] The new section 79D (1) provides in part:
"The Caribbean Court of Justice
[a] shall be the final court of appeal from any decision given by the Court
of Appeal. ..."
[15] This Act was assented to by the Governor General on the 24th April,
2003, but was by section 10 to come into effect on a date to be fixed by
proclamation.
[16] The second principal Act was the Caribbean Court of Justice Act ('the
CCJ Act'). This Act provides in section 3 that the Agreement Establishing
the Caribbean Court of Justice ('the CCJ') shall have the force of law and
in section 4 (1) that the CCJ shall have "appellate jurisdiction provided
for in this Act as is conferred on it in accordance with the provisions of
Part III of the Agreement."
[17] Section 6 provides for appeals as of right to the CCJ from the
decisions of the Court of Appeal in a number of different categories of case,
none of which catches the instant case. Section 7 provides for an appeal to
this Court with leave of the Court of Appeal inter alia "in any civil
proceedings where, in the opinion of the Court of Appeal, the question is
one that by reason of its great general or public importance or otherwise,
ought to be submitted to the Court".
Section 8 provides:
"Subject to section 7, an appeal shall lie to the Court with the special
leave of the Court from any decision of the Court of Appeal in any civil or
criminal matter".
[18] This Act was assented to on the same day as the 2003 Act and was also
to come into effect on a date to be fixed by proclamation. By proclamations
contained in Statutory Instruments numbered 44 and 45 respectively of 2005,
the 8th April, 2005, was the date appointed for the coming into operation of
both the CCJ Act and the 2003 Act.
[19] On the 14th April, 2005, the Acting Governor-General assented to two
other Acts, namely:
The Constitution (Amendment) Act, 2005; and
The Caribbean Court of Justice (Amendment) Act, 2005.
The first of these Acts made certain further amendments of the Constitution,
none of which has any relevance to this case. The second of them, apart from
making certain amendments of the CCJ Act which also are not relevant for
present purposes, corrected an omission in that Act by introducing a new
section, section 25A, which repealed sections 64 and 65 of the Supreme Court
of Judicature Act. Section 64 (1) of the Judicature Act provided that an
appeal should lie from decisions of the Court of Appeal to Her Majesty in
Council as of right in certain specified circumstances, and with leave of
the Court of Appeal "if, in the opinion of the Court of Appeal, the question
involved in the appeal is one that, by reason of its general or public
importance, or otherwise, ought to be submitted to Her Majesty in Council
for decision."
This provision was quoted by the Court of Appeal in its judgment on the
application for leave to appeal to the Privy Council and was applied by them
to the facts of that case in coming to their decision. Yet, it is clear that
before they gave that decision, that provision had been repealed.
THE TIME SEQUENCE
[20] If one superimposes the legislative time-table on the chronology of
these proceedings, what emerges is that the right of appeal to this Court
which the applicant is seeking to invoke, first became part of the law of
Barbados on the 8th April, 2005 ('the commencement date'), while the
decision against which the applicant seeks to appeal was given by the Court
of Appeal on the 20th August, 2004, that is some seven and one-half months
earlier. The hearing of the application for leave to appeal to the Privy
Council had been completed before the commencement date and all that was
outstanding on that date was the delivery of judgment by the Court of Appeal.
What appeal then, if any, could the applicant pursue after the commencement
date and how could it do so?
[21] Unfortunately the transitional provisions contained in the 2003 Act and
the CCJ Act are very basic and provide us with limited guidance. Moreover
they are in one respect inconsistent. In the 2003 Act section 11 provides as
follows:
"The provisions of this Act
[b] shall not affect
[i] an application that has been made to the Judicial Committee of the Privy
Council; or
[ii] any matter that is before the Judicial Committee of the Privy Council
before the date of commencement of this Act; ..."
This section renders the amendments of the Constitution made by the 2003 Act
inapplicable to proceedings in which an application for special leave to
appeal to the Privy Council was pending on the commencement date or to any
matter that was on that date "before the Judicial Committee of the Privy
Council". In cases falling within this provision, the Privy Council would
retain its jurisdiction to grant special leave to appeal to it and to hear
appeals from the Barbados Court of Appeal in accordance with the regime in
force prior to the 2003 amendments. This provision, however, does not catch
cases like the present one in which what was pending on the commencement
date was not an application to the Judicial Committee for special leave but
an application for leave to the Court of Appeal.
[22] In the CCJ Act the transitional provision is contained in section 25
which reads in part as follows:
"[1] The provisions of section 4(1) shall not affect any proceedings pending
before the Judicial Committee of the Privy Council immediately before the
commencement of this Act.
[2] For the purpose of this section, proceedings shall be treated as pending
when leave to appeal to the Judicial Committee of the Privy Council has been
granted. ."
There are two things to note about this section. The fact is that while it
exempts proceedings pending before the Judicial Committee from the operation
of section 4 (1), this exemption does not apply to sections 6, 7 and 8 (referred
to above) or to section 25A which, as we have seen, repealed sections 64 and
65 of the Supreme Court of Judicature Act. Secondly, this section treats
proceedings as pending before the Privy Council only if leave to appeal to
the Judicial Committee was given prior to the commencement date. Accordingly,
proceedings in which an application for special leave had been made to the
Judicial Committee before the commencement date but had not on that date
been determined, would not be affected by the amendments of the Constitution
made by the 2003 Act, but on the other hand, would not qualify as 'pending
proceedings' for the purposes of the CCJ Act, and so would be impacted by
section 4 (1) of that Act by which the appellate jurisdiction of the CCJ was
established. This inconsistency is not relevant on the facts of this case,
and so does not have to be resolved by us in this judgment. We would point
out, however, that the Constitution is the supreme law of Barbados and
therefore, its provisions would prima facie prevail in the event of conflict
with another law.
[23] These rather sparse transitional provisions, which are inapplicable to
the instant case, are to be contrasted with the much fuller treatment given
to this aspect of the matter in New Zealand's Supreme Court Act, 2003, by
which appeals to the Privy Council were abolished and replaced by appeals to
a new indigenous court called the Supreme Court with effect from the 1st
January, 2004. One finds in sections 42, 50, 51, 52, 53 and 54, of that Act
detailed provisions specifying what is to happen in a variety of situations
in which persons who wished to pursue or were in the course of pursuing an
appeal against a decision of the Court of Appeal of New Zealand, found
themselves on the lst January, 2004.
GENERAL PRINCIPLES OF CONSTRUCTION
[24] We are forced to fall back therefore on general principles of
construction to determine the question of jurisdiction in the instant case.
First of all, we adopt the view that the substitution of one court of final
resort for another is to be regarded as a procedural rather than a
substantive change in the law. The proper approach to construction in such
cases is formulated in Bennion on Statutory Interpretation, 4th edition,
page 269, section 98, as follows:
"Because a change made by the legislator in procedural provisions is
expected to be for the general benefit of litigants and others, it is
presumed that it applies to pending as well as future proceedings. This
presumption does not operate where, on the facts of the instant case, to
apply it would contravene the principle that persons should not be penalized
under a doubtful enactment".
In our view, therefore, the presumption against legislation which changes
the substantive law having a retrospective effect has no application here.
It cannot be argued therefore that the new legislation should not be
interpreted in a way which would affect a right of appeal that had already
accrued.
[25] In the passage just quoted Bennion refers to the principle that persons
should not be penalized under a doubtful enactment. One should therefore
avoid a construction of the new legislation which would lead to the result
that a party is deprived of a right to make or pursue an application for
leave to appeal to the Judicial Committee without at the same time acquiring
a corresponding right to apply for leave to appeal to this Court. It must be
assumed that in all those cases in which the effect of the legislation was
to abrogate an existing right of appeal to the Judicial Committee whether
that right was qualified or unqualified, it intended to confer a
corresponding right of appeal, similarly qualified or unqualified, to the
Caribbean Court of Justice. Otherwise persons would be penalized under a
doubtful law.
[26] Further, Parliament has by the transitional provisions set out above
expressly defined the circumstances in which an existing right to pursue an
appeal to the Judicial Committee shall be preserved after the commencement
date. It is reasonable to infer that Parliament intended that in any case
falling outside the ambit of that provision, an appeal would no longer lie
to the Judicial Committee after the commencement date, but instead an appeal
would lie to this Court, subject of course to the fulfilment of the
conditions and the procedural requirements imposed by the new legislations.
[27] For these reasons, we are satisfied that subject to the applicant
obtaining special leave from this Court upon an application made within the
relevant time-limit and in compliance with such procedural requirements as
may be applicable, the applicant has a right of appeal to this Court. We
would have reached the same conclusion even if the Court of Appeal had
purported to give him leave to appeal to the Judicial Committee or if he had
made no application for leave to appeal to the Court of Appeal, but the time
for doing so had not expired before the commencement date. The position of
course would be different in the case of a person who on the commencement
date had no possibility of pursuing an appeal to the Privy Council. His
right of further appeal having died, could not be resurrected on or after
the commencement date by the new legislation.
IN LIMINE OBJECTION
[28] I turn now to an in limine objection to the application for special
leave taken by counsel for the respondents. He submitted that it was a
pre-condition of applying to this Court for special leave that application
should first be made to the Court of Appeal for leave to appeal to this
Court. He referred to sections 7 and 8 of the CCJ Act which, as we have seen,
provide respectively for appeals to this Court with the leave of the Court
of Appeal and with special leave of this Court. He placed great reliance on
the words "subject to section 7" by which section 8 was introduced. He
argued that those words made it compulsory in every case for an application
to be made under section 7 before one was made under section 8.
[29] We do not agree that the words "subject to section 7" have that effect.
It is true that when one provision is expressed to be subject to another,
the effect is to make the first provision subordinate to the second, so that
to the extent that full force and effect cannot be given to both provisions
without a conflict between them arising, the first provision must yield to
the second. The impact of these words, therefore, depends very much on the
content and scope of each provision. In the instant case both sections 7 and
8 provide different routes by which a party aggrieved by a decision of the
Court of Appeal may reach this Court. The route via section 7 involves the
obtaining of leave from the Court of Appeal on certain grounds which are
specified in that section. The route via section 8 involves obtaining
special leave from this Court on grounds which are unspecified but are left
to be determined by us. Notwithstanding the use of the words "subject to
section 7" in section 8, these two routes are separate and independent of
each other and do not intersect. The limitations imposed by section 7 on the
grant of leave by the Court of Appeal do not apply to the grant of special
leave by this Court under section 8. Clearly the words "subject to section
7" do not have that effect. Similarly, it would be reading far too much into
those words to construe them as requiring that every application made to
this Court for special leave under section 8, must be preceded by an (unsuccessful)
application for leave under section 7. If that had been the intention, one
would have expected the draftsman to so provide in clear and explicit terms.
[30] There are moreover, two factors which militate against construing the
words "subject to section 7" in the way suggested by counsel for the
respondents. The first is that such a construction would in some cases at
best produce an absurd result. It would mean for instance that in criminal
matters, in which the Court of Appeal has no power to grant leave under
section 7, but this Court may grant special leave under section 8, a
would-be appellant would have to make a patently hopeless application for
leave to the Court of Appeal simply to be able to apply to this Court for
special leave. A similar absurdity would occur in any case in which the
ground on which leave to appeal was sought, was not one which would entitle
the applicant to leave under section 7.
[31] Secondly, the proposed construction would give rise to an internal
inconsistency in the CCJ Act itself. I have already in this judgment
referred to section 4 (1) (b) of the CCJ Act. This provides that the Court
shall have appellate jurisdiction "provided for in this Act as is conferred
on it in accordance with the provisions of Part III" of the Agreement
Establishing the Court. Now, Part III of that Agreement contains the
following provision in Article XXV.4:
"Subject to paragraph 2, an appeal shall lie to the Court with the special
leave of the Court from any decision of the Court of Appeal of a Contracting
Party in any civil or criminal matter".
Paragraph 2 of the same Article to which reference is made, provides for an
appeal to this Court as of right in specified categories of case. It is in
fact reproduced in section 6 of the CCJ Act, while paragraph 3 of Article
XXV of the Agreement deals with appeals with the leave of the Court of
Appeal and is reproduced in section 7 of the CCJ Act. When one reads Article
XXV, therefore, side by side with sections 6, 7 and 8 of the CCJ Act, it
seems likely that the Parliamentary draftsman by inadvertence made section 8
'subject to section 7' instead of 'subject to section 6'. Be that as it may,
if one gives to those words "subject to section 7" the meaning contended for
by the respondents, it would have the effect of significantly altering the
appellate jurisdiction conferred on the Court "in accordance with the
provisions of Part III of the Agreement" and thus give rise to a serious
inconsistency between two provisions of the same Act. Such a construction is
to be avoided unless the provisions giving rise to it are clear and
unambiguous. That is certainly not the case here.
[32] It is difficult to see what purpose, if any, is served by the words "subject
to paragraph 2" in paragraph 4 of Article XXV. They appear to be unnecessary
and to state the obvious. It is equally doubtful whether the words 'subject
to section 7' at the beginning of section 8 serve any purpose other than to
emphasise that the right to seek leave from the Court of Appeal to appeal to
this Court on any of the grounds specified in section 7 is in no way
diminished or impaired by the right to apply to this Court for special leave
on any ground, regardless of whether or not it is one of those specified in
section 7. One consequence of this is that if an applicant without good
reason by-passes the Court of Appeal and applies to us for special leave on
grounds on which the Court of Appeal might have granted leave, then he can
expect at the very least to be penalized in costs. In the instant case it
would be unreasonable to expect or require the applicant to have applied to
the Court of Appeal for leave given that Court's rejection of the
respondent's application for leave to appeal to the Judicial Committee.
[33] Although this cannot be used as an aid to the interpretation of the CCJ
Act, it is to be noted that the rule-making authority has proceeded on the
assumption that a party may apply to this Court for special leave either
after having made or without having made, an application for leave to the
Court of Appeal. Rule l0.4 of the Caribbean Court of Justice (Appellate
Jurisdiction) Rules 2005 ("the Appellate Jurisdiction Rules") provides
alternative time-limits for the making of an application for special leave
depending on whether or not such an application has been preceded by an
unsuccessful application for leave to the Court of Appeal. These time-limits
are 42 days from the date of the judgment from which special leave to appeal
is sought or 21 days from the refusal of leave to appeal by the Court of
Appeal.
TIME-LIMIT
[34] No point was taken by the respondents that this application was out of
time, and rightly so. But given the length of time which elapsed between the
delivery on the 20th August, 2004, of the judgment against which it is
sought to appeal and the filing of this application on the 15th July, 2005,
it would be as well to explain why the application is not out of time. The
reason is to be found in Part 19 of the Appellate Rules, which reads as
follows:
"In the case of appeals from judgments delivered before the coming into
force of these Rules the time for doing any act required by these Rules
shall not begin to run until the day after that on which these Rules come
into force."
Under Rule l. 1(b) the Appellate Rules came into force on the 14th June,
2005. Accordingly, the application for special leave, having been filed on
the 15th July, 2005, was within the 42 day limit prescribed by Rule l0.4.
Needless to say, Part 19 will only apply in cases in which there is a
substantive right of appeal to this Court, whether conditional or
unconditional, in accordance with the principles enunciated above.
THE CENTRAL ISSUE
[35] We come now to the central issue in this case. Ought we to grant
special leave to appeal to this Court in the circumstances of this case? As
I have pointed out, section 8 of the CCJ Act has no doubt quite deliberately,
left it entirely to this Court to formulate the principles by which it will
be guided in determining whether to grant or to refuse special leave to
appeal to it. We do not propose at this early stage to attempt to make any
comprehensive formulation of those principles. We propose rather to deal
with the matter on a case by case basis and to limit ourselves to
articulating in each case the principle by which we have been guided in
granting or refusing special leave to appeal. Secondly, in shaping these
principles we will of course pay attention to the practice adopted by the
Judicial Committee, but we will not feel bound to adhere strictly to it. We
will also pay attention to the practice and principles adopted by final
courts of appeal in other Commonwealth countries, but we will develop our
own jurisprudence in this area incrementally on an "as needed" basis.
COUNSEL'S SUBMISSIONS
[36] There were passages in both the written and oral submissions of counsel
for the applicant in which he seemed to be treating this application as
though it were an appeal from the refusal of leave by the Court of Appeal
and more particularly from that Court's ruling that the question involved in
the appeal was not one that by reason of its general or public importance
ought to have been submitted to Her Majesty in Council for decision pursuant
to section 64 (1) (b) of the Supreme Court of Judicature Act. As I have
already pointed out, when leave to appeal to this Court has already been
refused by the Court of Appeal, an application to this Court for special
leave to appeal is not an appeal against the refusal of leave by the Court
of Appeal. A fortiori, when the application to the Court of Appeal was for
leave to appeal to Her Majesty in Council. This, however, does not preclude
the applicant in such circumstances from arguing in support of an
application to this Court for special leave that in the words of section 7
(a) of the CCJ Act "the question is one that by reason of its great general
or public importance or otherwise, ought to be submitted to the Court". It
is true that strictly speaking, the better course of making that argument
first to the Court of Appeal was not followed, but it would have been a
futile exercise to repeat before the same Court the same argument which had
failed to persuade it to grant leave to appeal to the Privy Council.
[37] This argument was in fact advanced before us by the applicant. As I
understood the argument, the great general or public importance of "the
question" derived from the fact that the business practices allegedly
imputed to the plaintiffs by the calypsos complained of would have created a
serious risk to the health of the public in Barbados. Further, the calypsos
were alleged to have been broadcast on the occasion of the semi�finals and
finals of the calypso competition held as part of the cultural celebration
of the biggest national festival in Barbados. The "question" to which these
circumstances would lend importance, was presumably how they impacted on the
liability of the defendant and the scope of defences based on the interest
of the public in hearing the calypsos. But although these words are omitted
from section 7(a) of the CCJ Act, the "question" whose importance is to be
assessed, must be the question "involved in the appeal", and the question
involved in the appeal which the applicant seeks leave to pursue, has
nothing whatever to do with the law of defamation. The question involved in
the proposed appeal is whether the exercise of the judge's discretion in
barring the defendant from contesting liability because of its failure to
comply with an "unless" order, was so flawed as to justify an appellate
court setting it aside. That per se is not a question of great general or
public importance. We therefore reject this submission by the applicant.
[38] Another submission made by counsel for the applicant was that the order
for a further and better list of documents was wrongly made. It was
submitted that the affidavit verifying a list of documents is conclusive and
that a party is not entitled to apply for a further and better list unless
it appears on the face of the list provided or on the face of the disclosed
documents or on an admission, that in all probability the party has or has
had other relevant documents beyond those disclosed. It was further
submitted that given the allegations made by the first respondent in her
affidavits, the respondents should have applied for an order requiring the
defendant to state whether certain specified documents were or had been in
its possession, custody or power and not for an order requiring a further
and better list of documents. There was no appeal, however, against the
order made for the filing of a further and better list of documents by the
applicant. The applicant therefore cannot ask for its disobedience (if any)
of that order to be excused on the ground that as a matter of law that order
was wrongly made. The question of the conclusiveness of the original list of
documents and the further and better list filed by the applicant and the
affidavits verifying them, is relevant however, to the question whether
there was compliance by the applicant with the orders made. This question is
at the very heart of the matter.
JUDGMENTS OF THE COURTS BELOW
[39] Husbands J. found that there had been a failure by the defendant to
comply with the "unless" order of the Chief Justice and that that failure
was intentional and contumelious. It was on that basis that he made the
order striking out the defence. His judgment contains no analysis of the
evidence with regard to the existence of those undisclosed documents which
were alleged to be or to have been in the applicant's possession, custody or
power and no identification of these documents.
[40] The Court of Appeal in its judgment did examine the two affidavits
sworn by Mr. Fernandes in support of the applicant's contention that it had
made full disclosure. The Court drew an inference from these affidavits that
the applicant had had log tapes kept on a daily basis which recorded
everything that had been played on the applicant's station during the
relevant period but that those tapes had been destroyed. The Court held that
these tapes should have been but had not been disclosed in the list of
documents which had been in the applicant's possession. The Court was
obviously sceptical of Mr. Fernandes' principal affidavit which it described
as "carefully and cleverly drawn". The Court of Appeal also concluded on a
balance of probability that the applicant had recordings or tapes of the
live broadcasts of the semi-finals and finals of the calypso competition but
may have recycled or otherwise disposed of them. Again, it held that the
applicant should have but had not disclosed these recordings or tapes as
documents which had once been in its possession. On the basis of these
findings the Court of Appeal held that the applicant did not comply with the
"unless" order of the Chief Justice. In the absence of any satisfactory
explanation or excuse provided by the applicant for its failure to comply,
the Court of Appeal held that that failure was intentional and contumelious.
They therefore could find no fault with the exercise of the Judge's
discretion and upheld his order striking out the amended defence.
[41] Counsel for the respondents submitted that this was not a proper case
in which to grant special leave to appeal as the Judge had exercised his
discretion on the basis of facts which were the subject of concurrent
findings made by the Judge and the Court of Appeal. This was a case
therefore, in which an appellate court would in accordance with a well
established principle and practice, refuse to interfere with the exercise of
the Judge's discretion. Insofar as that argument relies on concurrent
findings of fact, however, we must point out that (a) the judgment of
Husbands J. does not disclose what findings of fact he made with regard to
the non-disclosure issue, far less the basis for them; (b) such findings of
fact as were made by the Court of Appeal consisted of inference from the
documentary evidence and (c) neither the Judge nor the Court of Appeal had
the advantage of seeing and hearing the deponents give their evidence and be
cross-examined on it. In those circumstances, an appellate court is in as
good a position as the Judge of first instance to make findings of fact and
is entitled to review those made in the courts below. We do not accept,
therefore, the submission that special leave should be refused because the
appeal is bound to fail.
THIS COURT'S DECISION
[42] Our function on this application is a very limited one. Our concern is
only whether there is some special feature of this case which would warrant
our giving special leave to appeal to this Court in these circumstances in
which there is no appeal as of right and no basis on which the Court of
Appeal could have granted leave to appeal to us. Given our limited function
at this stage, it would be quite wrong for us to attempt to come to any
conclusion as to whether we are satisfied that there is such a flaw in the
exercise of the Judge's discretion as would justify our interfering with it
and quashing the order he has made. Indeed, we are not in a position to do
so anyway, as two of the affidavits sworn by the first respondent and filed
on the 9th October, 1995, and the 10th January, 1996, respectively, were not
put before us.
[43] It has been said that the Judicial Committee will grant special leave
to appeal if there has been either an "egregious" error of law or a
substantial miscarriage of justice. In this case there is no egregious error
of law involved, but the question does arise whether in the circumstances of
this case there exists a real risk that allowing the order barring the
applicant from defending this action to stand, without being exposed to
further scrutiny by this Court, will result in a serious miscarriage of
justice. The sanction imposed on the applicant is a drastic one as it denies
it the opportunity to defend the action on its merits. The applicant has
always manifested a serious intention to contest liability in this action
and there is at least the possibility that if liability is established, the
damages in this action will be substantial.
[44] We are certainly not in a position to hold, and do not hold, that the
sanction imposed was wrongly imposed. We have, however, come to the
conclusion that in the circumstances of this case the possibility that it
may have been wrongly or unfairly imposed is significant enough to warrant
the issue being fully and finally ventilated before this Court. Obviously we
do not wish to say very much at this stage as what we say may be
misconstrued as indicative of the likely outcome of the appeal. We would
indicate, however, that in concluding that there is a more than negligible
risk of a miscarriage of justice, we have a concern whether it was open to
the courts below on the evidence before them and in the context of
interlocutory proceedings for discovery, to find that there was a
contumelious failure by the applicant to comply with the "unless" order.
Because of this concern we have come to the conclusion that we should grant
special leave to appeal in order to eliminate the risk that leaving matters
as they are, may result in a miscarriage of justice.
DELAY
[45] We are very conscious of the enormous delay which has occurred in this
case and about which both sides have complained. The parties themselves have
contributed to some extent to the delay. The respondents and the applicant
took over 12 and 14 months respectively to file lists of documents which
they had been ordered to file within 42 days. After the applicant had filed
its list of documents, it took the respondents 11 months to apply for a
further and better list. But these delays are dwarfed by the delays of
Husbands J. and the Court of Appeal in giving their respective judgments.
The periods for which these judgments remained undelivered total more than
seven years. We would be failing in our duty if we did not express our
strong disapproval of judicial delays of that order. They deny parties the
access to justice to which they are entitled and undermine public confidence
in the administration of justice. We would like to think that such delays
are now a thing of the past in Barbados. We realize that the effect of our
decision may be to postpone, either minimally or substantially, depending on
the outcome of the appeal, the final resolution of this matter. It would be
unfair, however, to the applicant to deny it the special leave to which it
is otherwise entitled, because of delay in the proceedings for which it is
not for the most part responsible. It is to be hoped that the history of
delay in this case will serve to accelerate the pace at which the matter
proceeds from now on. We will certainly do whatever we can to ensure that.
BIAS
[46] Before concluding this judgment we should mention that it was submitted
by junior counsel for the applicant as a ground on which special leave
should be granted, that Mr. Justice Chase who was one of the three Judges
who heard the appeal from Husbands J. in the Court of Appeal, was
disqualified by virtue of bias. The allegation of bias was based on the fact
that Mr. Justice Chase had before his elevation to the Court of Appeal,
dealt with the respondents' summons to strike out the defence by adjourning
that summons, fixing a time for the filing of an affidavit by the defendant
and ordering the costs of the day to be paid by the defendant. No objection
to Mr. Justice Chase sitting was taken in the Court of Appeal although
junior counsel for the applicant was present both then and when Mr. Justice
Chase dealt with the summons. We accept counsel's explanation that he had in
fact forgotten about Mr. Justice Chase's earlier involvement in the matter.
His failure to recall it, however, underlines the insignificance of that
involvement which did not require Mr. Justice Chase to consider, far less to
pronounce on, the merits of the application. In our view, no reasonable
person could in those circumstances have got the impression that Mr. Justice
Chase might show partiality to one side or the other when dealing with the
appeal. There is no merit therefore in this submission and we would like to
make it clear that this special leave which we have given to the applicant
to appeal to this Court, does not extend to this allegation of bias and we
will not permit it to be raised again before us.
For these reasons, we granted the applicant special leave to appeal and
reserved the costs of this application to the hearing of the appeal. An
order was made accordingly in terms agreed by counsel on both sides on the
9th August, 2005. |
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