National Stadium Project (Grenada) Corporation v NH International (Caribbean) Ltd et Al; National Stadium Project (Grenada Corporation v NH International; (Caribbean) Ltd et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: J. Jones, J.A.,N. Bereaux,A. des Vignes
• Judgment Date: 28 July 2017
• Neutral Citation: TT 2017 CA 42
• Docket Number: Civil Appeal No. 48 of 2011 Claim No. CV 2006–01205
• Date: 28 July 2017

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Panel:

N. Bereaux, J.A.

J. Jones, J.A.

A. Des Vignes, J.A.

Civil Appeal No. 48 of 2011

H.C.A. No. 3400 of 1999

Claim No. CV 2006–01205

Between:

National Stadium Project (Grenada) Corporation

Appellant/Third Defendant

and

NH International (Caribbean) Limited

Respondent/Plaintiff

Clico Investment Bank Limited

Respondent/First Defendant

I.C.S. (Grenada) Limited

Respondent/Second Defendant

Between:

National Stadium Project (Grenada) Corporation

Appellant/Second Defendant

and

NH International (Caribbean) Limited

Respondent/Claimant

Clico Investment Bank Limited

Respondent/First Defendant

APPEARANCES:

Mr. S. Hughes, QC instructed by Ms. A. Sooklal for the Appellant.

Mr. A. Fitzpatrick, S.C. and Mr. S. Sharma instructed by Mr. A. Byrne for the Respondent/Plaintiff.

Mr. B. Reid instructed by Mr. C. Foderingham for the Respondent/First Defendant.

Respondent/Second Defendant unrepresented.

Cases mentioned:

Andre Baptiste v. Investment Ltd CA No. 181 of 2012 — Emmanuel Romain v. Water and Sewerage Authority CA No 24 of 1997 — Mary Gomez and others v. Ashmeed Mohammed CA S. 143 of 2015.

Civil Appeal - Application for stay of execution — Considerations in granting stay of execution — Prospects of success on the appeal — Whether there were any exceptional or special circumstances relevant to the grant of a stay of execution — Whether the respondent would be in a position to repay the sum if unsuccessful on the appeal — Financial statements — Whether there was a risk of injustice to the parties if the stay was granted or refused.

RULING

Delivered by J. Jones, J.A.

1 The applicant, National Stadium (Grenada) Corporation, seeks a stay of the execution of an order made by Rajkumar J. dated 28 ^th January 2011 pending the hearing and determination of its appeal from his judgment. At issue here is the payment out to the respondent, NH International (Caribbean) Ltd., of the sum of USD 2,682,719.24 held in an account at the Unit Trust Corporation (“UTC”). This sum had been placed in the account in the joint names of the instructing attorneys then on record for the applicant, the respondent and CLICO Investment Bank (“CIB”) since December 2004 pending the hearing and determination of the high court action or until further order.

Procedural History

2 The notice of appeal was filed on 11 ^th March 2011. On the same date the applicant applied to the judge sitting in the Court of Appeal Chamber Court for a stay of execution of the order of Rajkumar J. (“the order”). This application was dismissed. The judge, Weekes JA, found that, in accordance with the established principles, it was incumbent on the applicant to show that the appeal had a good prospect of success and identify any special circumstances that would “justify exceptionally” the grant of the stay. In addition, she acknowledged, that a stay may be granted where an applicant satisfies the court that if a judgment is paid there would be no reasonable prospect of getting it back in the event of a successful appeal. According to the judge the essential factor in the exercise of her discretion was the risk of injustice.

3 Weekes JA found that the applicant had not satisfied the burden on it that: (a) it had good prospects of success on the appeal; and (b) the respondent would be unable to repay the monies paid out under the judgment if the applicant was successful on the appeal. She found that there were no exceptional circumstances that warranted a stay and no risk of injustice to the applicant if the stay was refused.

4 Thereafter, in accordance with the accepted procedure, the applicant renewed its application for a stay of the order to the full court but before that court could determine the application the substantive appeal was dismissed. This dismissal was not a dismissal on the merits of the appeal but based on a lacuna in the notice of appeal: that the applicant had not demonstrated any entitlement to the sum nor appealed the judge's finding against it on that issue.

5 The applicant appealed the dismissal of the substantive appeal to the Judicial Committee of the Privy Council (“the Board”). Pending the hearing of the appeal before the Board the respondent gave limited undertakings not to enforce the judgment. These undertakings expired on 25 ^th April 2013. On 16 ^th February 2015 the Board allowed the appeal, gave the applicant leave to amend its notice of appeal and remitted the matter to the Court of Appeal for hearing.

6 The amended notice of appeal was filed on 1 ^st April 2015. It is accepted that at the time of the filing of the amended notice of appeal the transcript of the notes of evidence necessary for the filing of the record of appeal was not as yet available. However the respondent alleges, and the applicant does not deny, that no further steps were taken by the applicant to prosecute the appeal. In particular the applicant made no application for directions pursuant to Part 64.11 of the Civil Proceedings Rules 1998 as amended (“the CPR”) until after a letter from the respondent dated 16 ^th January 2016 requesting that it take the necessary steps to do so.

7 Thereafter the applicant applied for and, in May 2016, received directions for the filing of the record of appeal without the notes of evidence and for the filing of written submissions, by first the applicant and then the respondent, 60 days and 90 days after receipt of the notes of evidence. The notes of evidence were obtained by the respondent and forwarded to the applicant on 12 ^th October 2016 with a reminder that its written submissions were due 60 days from the 14 ^th October 2016. When it became evident that the applicant would be unable to file its written submissions within the allotted time the applicant applied for an extension of time to do so on 5 ^th December 2016.

8 By letter dated 9 ^th December 2016 the respondent wrote the applicant giving 30 days notice of its intention to take steps to enforce the order. The justification taken in the letter for the respondent's stance was that the chronology of events demonstrated a failure by the applicant to proceed with its appeal with due diligence and that the six year period, during which the rules allowed for a writ of execution to be issued without the need to obtain permission of the court pursuant to part 47.3 of the CPR, was to expire on 28 ^th January 2017. On 23 ^rd January 2017 the respondent filed its request for the issue of a Writ of Fieri Facias pursuant to part 47 of the CPR.

9 Meanwhile, on 6 ^th January 2017, the applicant made another application to the Court of Appeal Chamber Court for a stay of the execution of the order. On 13 ^th March 2017 that application was refused on the basis that the judge had no jurisdiction to hear it. On 18 ^th May 2017 the applicant made this application to the full court.

The applicable law

10 It is trite law that an appeal does not operate as a stay of the judgment or order appealed. The basic rule is that a successful litigant is entitled to enjoy the fruits of its success. The onus therefore is on the applicant for a stay to satisfy the court that, having regard to all the circumstances of the case and the risk of injustice, a stay ought to be imposed.

11 The risk of injustice was referred to and relied on by this Court in the case of Andre Baptiste v Investment Managers Ltd.1:

“Whether the court should exercise its discretion to grant a stay of execution pending the hearing of an appeal against the judgment depends upon all the circumstances of the case, but the essential factor is the risk of injustice: See

Clarke LJ in Hammond Suddard Solicitors v Agrichem International Holdings Ltd. [2001] All ER (D) 258 (Dec). In weighing the risk of injustice in the circumstances of this case, the court must consider, among other matters, if a stay is refused, what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand if a stay is refused and the appeal succeeds and the judgment is enforced in the meantime what are the risks to the appellant?”: per Rajunath-Lee JA 2

This position is consistent with the requirement in the CPR that the court deals with cases justly whenever it exercises any discretion given to it by the rules 3.

12 In accordance with the established principles referred to above in this jurisdiction the circumstances of the case include a consideration of the prospects of success of the appeal, any special or exceptional circumstances posed by the particular facts of the case and the respondent's ability to repay the judgment sum if necessary: see Emmanuel Romain v Water and Sewerage Authority4.

13 Insofar as Weekes J.A. identified the applicable principles of law we are satisfied she was correct. There been no suggestion before us that she got it wrong on the facts before her. This application coming some six years later of necessity has its own distinctive facts. In particular the prospects of success argument has been bolstered by the amendment to the notice of appeal ordered by the Board and, of course, insofar as the applicant now relies on the financial statements of the respondent for the years 2013–2016, the basis of the

applicant's arguments on the respondent's financial viability is not the same. The application before us therefore has two additional features that were not before Weekes J.A.

14 Any determination as to the prospect of success must be considered in the light of the merits raised by the amended notice of appeal. Similarly any determination of the ability or inability of the respondent to repay the money, should the appellant be successful on his appeal, must be considered in the light of the respondent's present financial position. At the end of the day however it is for the applicant...