Rollin Clifton Bertrand v Anthony Elias
| Jurisdiction | Trinidad & Tobago |
| Judge | Dean-Armorer J.A. |
| Judgment Date | 02 February 2021 |
| Neutral Citation | TT 2021 CA 3 |
| Docket Number | Civil Appeal No. P-133 of 2016 Civil Appeal No. P-139 of 2016 Claim No. CV2010-01393 |
| Court | Court of Appeal (Trinidad and Tobago) |
IN THE COURT OF APPEAL
I. Archie CJ
G. Smith JA
M. Dean-Armorer JA
Civil Appeal No. P-133 of 2016
Claim No. CV2010-01393
Civil Appeal No. P-139 of 2016
Claim No. CV2010-01393
and
and
and
Mr. Ian Benjamin SC leads Ms. Sadhna Lutchman instructed by Nalini Jagnarine
Mr. R. Maharaj SC leads Ms. T. Tuitt instructed by Ms. K Warner on behalf of Anthony Elias
Mr. J Mootoo instructed by Ms. G. Gopeesingh on behalf of Trinidad Cement Limited and Caribbean Cement Company Limited
I have read the judgment of Dean-Armorer JA and I agree with it.
Chief Justice
I have read the judgment of Dean-Armorer JA and I agree with it.
Justice of Appeal
/s/ M. Dean-Armorer
Justice of Appeal
Delivered by Dean-Armorer J.A.
The single issue, which engages our attention in this Application, is whether the Respondent Applicant, Anthony Elias, ought to be granted conditional leave to appeal against the order which had been made by the Court of Appeal on July 1, 2020.
The Court of Appeal, on that day, held that the trial Judge was plainly wrong in her decision to direct that costs be assessed by a Master in Chambers, following the discontinuance of a claim in defamation.
As will be apparent in the course of this decision, it was our view that the Applicant satisfied all of the elements of s. 109(1) (a) of the Constitution. We held that there was a genuinely disputable issue to be appealed and that the decision of the Court of Appeal was a final order in so far as it was caught by the exception to the application test. The Applicant was therefore entitled as of right to conditional leave to appeal.
On April 14, 2010, the Appellants, Rollin Clifton Bertrand, Trinidad Cement Ltd (TCL) and Caribbean Cement Company Ltd. (CCC) instituted proceedings against the Respondent/Applicant, seeking damages for slander for words spoken and published on May 12, 2009.
After having issued pre-trial directions, the trial Judge set the matter down for trial on January 20, 21, 22 and 23, 2015.
On the eve of the trial however, the Appellant, Rollin Bertrand, the then Claimant, filed and served a Notice of Discontinuance. On the following day, January 20, 2015, the 2 nd and 3 rd Claimants, TCL and CCC, made a viva voce application to discontinue the claim.
The trial Judge granted permission as requested and ordered that the Claimants pay the Defendant's costs. The trial Judge gave directions for the filing of the submissions on the issue of costs.
On April 26, 2016, the trial Judge delivered her decision, holding that the Claimants were jointly liable to pay costs. Her Ladyship ordered further that costs be assessed by a Master in Chambers. In so deciding, the trial Judge considered the provisions of CPR 38.6, 38.7 and 67.5(2). She took into account the requirement of Part 67.5 (2) (b) (ii), which required her to stipulate a figure for the imposition of a prescribed costs order. Her Ladyship, however, departed from Part 67.5 (2) (b) (ii) on the ground that she would have been required to speculate as to the extent of the damage suffered and that she could not do so without having heard cross-examination.
On May 5, 2016 Rollin Clifton Bertrand filed a Notice of Appeal against the decision of the trial judge. 1 This was followed by the Notice of Appeal on May 6, 2016, on behalf TCL and CCC. 2
The Appeal was heard on July 1, 2020.
In a viva voce decision, the Court of Appeal allowed the appeal and made these orders:
“1. The appeal is allowed.
2. The matter is remitted to the trial judge for the stipulation of the value of the claim.
3. The Respondents shall pay to the Appellant the cost of the Appeal in the amount of two-thirds (2/3) of such cost the trial court eventually determines.”
The decision of the Court of Appeal was delivered by Rajkumar JA, who identified two issues for the panel's considerations. The first issue was whether the trial judge was plainly wrong in determining that all the Claimants were jointly liable to pay the Defendant's Cost.
On this issue, the Court of Appeal, held that it had not been demonstrated that the trial judge was plainly wrong.
The second issue was whether the judge was plainly wrong in determining that costs should be assessed by a Master in Chambers. Rajkumar JA examined provisions of the CPR at Part 38.7 and 67.5 (2) (b) (ii). These provisions are set out below:
“Quantification of costs
38.7 (1) The general rule is that, unless an order has been made for budgeted costs under rule 67.8 the costs shall be determined in accordance with the scale of prescribed costs contained in Appendix B and Appendix C to Part 67.
(2) Where the claimant discontinues only part of the case the amount of costs must be assessed by the court.
(3) In determining the appropriate amount of costs to be paid where an order has been made under rule 67.8 (budgeted costs), the court may take into account any written information provided by either party when the costs budget was made.
Prescribed costs
67.5 (2) In determining such costs the “value” of the claim shall be decided—
(a) in the case of a claimant, by the amount agreed or ordered to be paid;
(b) in the case of a defendant—
(i) by the amount claimed by the claimant in his claim form; or
(ii) if the claim is for damages and the claim form does not specify an amount that is claimed, by such sum as may be agreed between the party entitled to, and the party liable for, such costs or if not agreed, a sum stipulated by the court as the value of the claim….”
Rajkumar, JA held that the trial judge erred in considering that part 67.5 (2) (b) (ii) did not apply to the proceedings before her. 3
In deciding whether the Defendant is entitled to conditional leave to appeal to the Privy Council, we considered whether the decision of the Court of Appeal was a final decision for the purpose of section 109 (1) of the Constitution; whether the appeal was caught by section 109 (2); and whether conditional leave ought to be refused on the ground that the intended appeal related to an order for costs.
Where an applicant applies for conditional leave to appeal to the Privy Council as of right, he must satisfy the requirements of Section 109 (1), which provides as follows:
“109. (1) An appeal shall lie from decisions of the Court of Appeal to the Judicial Committee as of right in the following cases:
(a) final decisions in civil proceedings where the matter in dispute on the appeal to the Judicial Committee is of the value of fifteen hundred dollars or upwards
or where the appeal involves directly or indirectly a claim to or question respecting property or a right of the value of fifteen hundred dollars or upwards;
The Applicant for conditional leave must therefore satisfy the Court that the intended appeal is from a final decision in civil proceedings in respect of a matter in excess of $1500.00. 4
There was no dispute that the intended appeal related to civil proceedings and that it related to the vindication of a right valued in excess of fifteen hundred dollars.
The questions which fell to be considered were whether there was a genuinely disputable issue and whether the intended appeal related to a final decision.
An applicant for conditional leave is required to satisfy the Court that the proposed appeal raises a genuinely disputable issue. This requirement was expressed by their Lordships in Alleyne-Forte (Learie) v. Attorney-General and Another 5. It was applied by the Court of Appeal in numerous decisions notably in Attorney General v Lennox Phillip and Another 6 and Motor and General Insurance Co. Ltd v Gail Sanguinette. 7
The elements of “a genuinely disputable issue” were recently considered in LOP Investments by President de la Bastide in the CCJ. The learned President referred to Alleyne-Forte (Learie) v. Attorney-General and Another in the context of section 6(a) of the CCJ Act 8 and expressed the view that test of the genuinely disputable issue was little more than a gate-keeping exercise since the appeal is as of right. Holding that the Court of Appeal was wrong to refuse leave de la Bastide had this to say:
“There is no discretion in the Court of Appeal to withhold leave in an as-of-right case on the ground that the appeal lacks merit…”
The apparent narrowing of the Court's discretion in LOP was the subject of submissions before this court. It was our view, however, that there was a genuinely disputable issue in the intended appeal and that it was not necessary, in this Application, to consider
It is well settled that in order to determine whether a decision is final or not, the Court applies the application test. See Lennox Phillip 9 where Mendonça JA set out the test as articulated by Fry L. J. in Salaman v Warner: 10
“I conceive that an order is “final” only where it is made upon an application or other proceedings which must whether such application or...
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