REPUBLIC OF TRINIDAD AND TOBAGO CA No. 34 of 2013 CV No. 03690 of 2011 PANEL: IN THE COURT OF APPEAL BETWEEN DOC S ENGINEERING WORKS (1992) LTD DOCS ENGINEERING WORKS LTD RAJ GOSINE SHAMDEO GOSINE AND Appellants FIRST CARIBBEAN INTERNATIONAL BANK (TRINIDAD AND TOBAGO LTD) Respondent P. Moosai, J.A. M. Mohammed, J.A. J. Jones, J.A. APPEARANCES: Mr. V. Maharaj for the Appellants. Mr. I. Benjamin instructed by Mr. R. Thomas for the Respondent. Date delivered: 14 th January, 2016. I have read the Reasons of Jones J.A. and I agree with it. P. Moosai Justice of Appeal I too, agree. M. Mohammed Justice of Appeal Page 1 of 14
REASONS Delivered by: J. Jones, J.A. 1. On 25 th September 2015 we dismissed this appeal and indicated that we would provide our written reasons at a later date. We do so now. In this appeal we have not had the benefit of the Judge s reasons. This failure does not however preclude this court from considering and determining the appeal. 1 2. Pursuant to an application by the Respondent, the claimant in the proceedings below, on the 7 th January 2013 the trial judge struck out the Appellants defences and entered judgment for the Respondent on its statement of case. By a notice of appeal dated 19 th February 2013 the Appellants appealed this decision. 3. By a claim filed on 27 th September 2011 the Respondent sought from the Appellants the payment of money under four contracts of guarantee, all in the same terms, dated 19 th April 2006. The Respondent sought the payment by each of the Appellants of the sum of $11,700,000.00 but collectively not more than $16,404,903.63 in accordance with the terms of the contracts. 4. The allegations of fact in the statement of case were that: (i) the Appellants had all entered into contracts of guarantee whereby they agreed to guarantee the repayment of a loan taken by Doc s Homes Ltd. ( the Company ); (ii) there was due and owning from the Company the sum of $11,700,000.00 under the loan;(iii) by individual letters dated 25 th May 2010 the Respondent demanded payment from the Appellants; and 1 Romauld James v The Attorney General Civ. App 154 of 2006 Page 2 of 14
(iv) by letters dated 16 th and 18 th June 2013 signed by the Third and Fourth Appellants on behalf of the Company the Company acknowledged the debt. 5. The Respondent also pleaded its reliance on clause 9 of the contract which provided that any admission or acknowledgement in writing by the Company, or any person acting on its behalf, of the amount of the indebtedness of the Company was binding and conclusive on each guarantor. Copies of the documents referred to by the Respondents were all annexed to the statement of case. 6. The Appellants defences, all in similar terms, did not deny entering into the contracts of guarantee. Neither did they, in accordance with Part 10.5 of the Civil Proceedings Rules 1998 as amended ( the CPR ), deny that there was a demand for payment of the sums due by the Respondent on 25 th May 2010 nor that the Company had acknowledged the debt. 7. Each defence however: (i) contended that the claim was barred by virtue of section 3 of the Limitation of Certain Actions Act 2 ; (ii) denied the interpretation placed on clause 9 of the contracts by the Respondent and sought to rely on the express terms of the clause for its full term true meaning and effect. and (iii) claimed ignorance of the monies advanced or the Company s indebtedness under the loan and put the Respondent to the proof. 8. By its reply the Respondent treated with the limitation point. It relied on clause 1 of the contract of guarantee by which the Appellants undertook to pay the sums due and 2 Chap 7:09 Page 3 of 14
owing to the Respondent upon demand in writing; referred to the demand made by way of the letter dated 25 th May 2010 and averred that the letter of 16 th June was an acknowledgement in writing to the debt in the context of sections 12 and 13 of the Limitation of Certain Actions Act. 9. The application to strike out the defences was pursuant to Part 26.2 of the CPR and on the basis that they disclosed no grounds for defending the claim and/or were an abuse of the process of the court. The grounds of the application however treated only with the limitation point. As it was entitled to do the Respondent filed an affidavit in support of its application. 10. In addition to the facts alleged and the documents attached to their statement of case the affidavit disclosed that a judgment had been obtained by the Respondent against the Company on 14 th February 2012, in the sum of $16,407,473.63 together with interest at the rate of $5,439.64 per day from 4 th December 2010 to 14 th February 2014, which judgment had not been satisfied. The Appellants filed no affidavit in opposition to that filed by the Respondent. Pursuant to this application the judge struck out the Appellants defences and granted the Respondent the relief sought in the claim. 11. Apart from the substantive appeal also before us at the hearing was an application filed by the Respondent by which it sought to strike out the notice of appeal for failing to comply with Parts 64.5(a) and 64.6(1)(a) of the Civil Proceedings Rules 1998 as amended ( the CPR ). I propose to deal first with the merits of the appeal. Page 4 of 14
The merits of the appeal 12. As pleaded the issues in the case were: 1. was the claim barred by section 3 of the Limitation of Certain Actions Act? 2. Did clause 9 of the contract of guarantee make the acknowledgement contained in the letter of the 16 th June binding on the Appellants; and 3. If not, was the sum claimed due and owing? 13. Issues (ii) and (iii) specifically dealt with the proof of the Respondent s case. If clause 9 was to be interpreted as the Respondent contended then there was no need for further proof that the sums were due and owing. If it was not to be interpreted in that manner then the Respondent would need to prove that the sums were due from the Appellants. 14. With respect to these two issues the judgment obtained against the Company, and disclosed in the affidavit in support of the application, rendered otiose the Appellants arguments on the effect of clause 9 of the contracts of guarantee and any dispute as to the sum due and owing by them to the Respondent. On the application before the trial judge therefore the only live issue was the limitation point. That this was the position is borne out by the submissions filed by both parties on the application. These submissions treat solely with the limitation point. 15. By their written submissions before us the Appellants proceeded on three bases: (i) clause 9 did not establish the indebtedness of the Appellants under the contract; (ii) the Respondent had not established that the claim was brought within the limitation period and (iii) the claim was for a money judgment which the Appellants had not Page 5 of 14
admitted and, as a result, the Respondent was required to prove same. The Appellants have failed on each of the basis relied upon. 16. The fact is that before the judge the Appellants never challenged the existence of the judgment against the Company nor the Respondent s assertion that the judgment was unsatisfied. An unsatisfied judgment against the Company on the loan for a sum in excess of that claimed against the Appellants was sufficient to deal with submissions (i) and (iii). There was clear evidence before the judge of the existence and quantum of the Company s indebtedness and, consequently, Appellants indebtedness under the contracts of guarantee. 17. On the limitation point by clause 1 of the contracts of guarantee the Appellants undertook to pay all sums due or owing by the Company on demand in writing made on them by the Respondent. In accordance with the terms of their contract therefore time began to run from the date of the demand. There has been no denial, in accordance with part 10.5 of the CPR, by the Appellants of the receipt of the letter of 25 th May 2010 making the demand nor that the letter constituted a demand. 18. In any event to constitute a demand in law all that is required is a clear and unconditional intimation that payment is required. 3 The letter was such a clear and unconditional intimation. The action was commenced in September 2011 well within the four-year period set by the Limitation of Certain Actions Act for bringing the action 4. In these circumstances therefore the limitation point also failed. Consequently there was no merit in the appeal. 3 Financial Institutions Ltd v Negril Holdings Ltd and Another [2004]65WIR 227 at paragraph 40. 4 section 3 of the Act Page 6 of 14
Is this a procedural appeal 19. The notice of application filed by the Appellants herein treats with the troubling question of what is a procedural appeal. Part 64.5(a) requires a procedural appeal to be filed within 7 days of the date of the decision appealed against. The notice of appeal in this case was filed on 19 February 2013 just within the 42 day period fixed for the filing of regular appeals 5 but outside the 7 day period required for the filing of procedural appeals. 20. Part 64.6(1)(a) further requires that the notice of appeal must be served forthwith on all the parties to the proceedings. The notice of appeal was served on the Respondent on the 22 nd April 2013 two months after it was filed. By the rules a procedural appeal is required to be heard within 28 days of its filing. In these circumstances therefore if the appeal is properly a procedural appeal then the service of the notice of appeal some two months after filing would not comply with the requirement that it be served forthwith. If the appeal is not a procedural appeal then, although strictly speaking the notice of appeal was not served forthwith, no harm has been alleged by the Respondent and such a lapse is of no moment. The question therefore is whether this is a procedural appeal. 21. In answering this question little or no assistance can be obtained from the distinctions under the earlier rules with respect to final and interlocutory appeals. Under the 1975 rules an appeal from an interlocutory order or a judgment or order made pursuant to orders 14 and 83 6, had to be filed within 14 days. All other appeals were given 6 weeks for the filing of the notice of appeal. The test for ascertaining whether a 5 Part 64.5(b) 6 orders providing for summary judgment Page 7 of 14
decision was interlocutory or final was whether the order finally determined the rights of the parties. If it finally determined the rights of the parties then it was a final order. 22. The 1975 rules specifically lumped applications for summary judgments with interlocutory orders or judgments. So that, despite the fact that under the applicable test orders and judgments made pursuant to orders 14 and 83 would have qualified as final orders, the rules specifically required such orders or judgments to be treated as appeals from interlocutory orders for the purpose of the time to appeal. The CPR does not treat summary judgments in that manner. 23. The distinction drawn by the CPR is between regular appeals and procedural appeals. The CPR defines a procedural appeal as an appeal from a decision of a master or judge which does not directly decide the substantive issues in a claim and excludes- (a) any such decision made during the course of the trial or final hearing of the proceedings; (b) an order granting any relief made at an application for judicial review (including an application for leave to make the application) or under section 14(1) of the Constitution under part 56; and (c) the following orders under Part 17: i. an interim injunction or declarations; ii. a freezing injunction; iii. an order to deliver up goods; and iv. any order made before proceedings are commenced or against a non-party; and Page 8 of 14
(d) an order for committal or confiscation of assets under Part 53... 7 24. The general rule therefore is that an appeal from a decision that does not directly decide the substantive issues in the case is a procedural appeal but if that decision is made in any of the proceedings identified at (a) to (d) above then it cannot be the subject of a procedural appeal. So that, for example, an order granting relief in an application for judicial review or a decision made during the course of a trial even though it does not directly decide the substantive issues of the case cannot be the subject of a procedural appeal. The cases under the old rules that address the difference between interlocutory and final orders therefore do not assist in the determination of what is a procedural appeal. 25. Under the CPR the determinate factor is not that the decision may have finally decided the dispute between the parties but rather whether the decision directly deals with the substantive issues in the claim. Of note here are the use of the words directly and substantive in the rule. Such a determination requires an examination of the issues in the claim and the decision of the judge or master. 26. Of course in the majority of cases it is relatively easy to determine whether an appeal is procedural or not. The difficulty arises with those decisions that finally determine the action and in particular those decisions that arise out of applications to strike out statements of case, as in the instant case, and from applications for summary judgment 8. In those cases, if the appeal is properly a procedural appeal an incorrect categorization may be fatal to the appeal. 7 Part 64.1(2) 8 Part 15 of the rules Page 9 of 14
27. The question of whether an appeal was a procedural appeal or not was considered by this court in the case of Allan Dick and Co. v Fast Freight Forwarders Ltd 9. Although this was a case decided on its particular facts the process used by the judge to arrive at the decision of the court is instructive. The appeal was from a decision of a judge refusing to set aside an order made by him on a without notice application joining the Appellant as the second defendant in the claim. One of the questions to be determined was whether the appeal, filed as a procedural appeal, was properly before the court. The issue was complicated by the fact that the order had been made on a date on which the action had been listed for the trial between the claimant and the original defendant. 28. In treating with the problem Mendonca JA posed two questions: (i) does the decision appealed directly decide the substantive issues in the claim; and (ii) if it did not was it made during the course of the trial or final hearing. In answering the first question Mendonca JA considered what would have been the issues in the trial between the new defendant and the claimant. He determined one of the substantive issues to be whether the corporate veil may be pierced and concluded that since the order that the appellant be joined as a party did not directly determine that issue then the first question was answered in the negative. The appeal was not therefore from an order that directly decided the substantive issues in the case. 29. With respect to the second question, on the particular facts of the case, Mendonca JA found that it was not an order made during the course of the trial between the claimant and the new defendant. In the circumstances he concluded that the appeal was a procedural appeal. 9 Civil Appeal No 214 of 2010 Page 10 of 14
30. The first question posed by Mendonca JA treated with the general rule while the second question was necessary to determine whether any of the exclusions applied. Mendonca JA could as easily have posed the questions in this way: (i) does the decision appealed from directly decide the substantive issues in the claim and (ii) do any of the exclusions apply. This is the approach to be taken. 31. On the facts in the instant case the exclusions do not apply. The answer to question (ii)therefore is no. The real question to be answered here is whether the judge in arriving at his decision to strike out the defences and enter judgment for the Respondent directly decided the substantive issues in the claim. If he did then the procedure adopted by the Appellant is correct. The appeal is not a procedural appeal. If he did not then the appeal is a procedural appeal and this appeal was not properly before us. 32. While the lack of reasons given by the judge would not affect a determination of what were the substantial issues in the case it does to some extent hamper a determination of what was directly decided by the judge. As we have seen while there were three issues there were in fact only two substantive issues in the case: the limitation point and whether the sum claimed was due and owing. In the absence of reasons therefore to determine what was directly decided by the judge greater reliance must be placed on the application before the court and the submissions in this regard. 33. The application before the judge was made pursuant to Part 26.2. Part 26 establishes the court s case management powers. These powers include the power under Part 26.2 to strike out a statement of case or part of a statement of case if it appears to the court that: Page 11 of 14
(a) there has been a failure to comply with a rule, practice direction or order or direction of a court in the proceedings; (b) it is an abuse of the court; (c) it discloses no grounds for bringing or defending a claim; or (d) it is prolix or does not comply with the requirements of Parts 8 or 10. 34. Under the CPR the phrase statement of case includes a claim, defence, counterclaim, ancilliary claim, defence to counterclaim and a reply to a defence. 10 These are all documents that, prior to these rules, were generically referred to as pleadings. For clarity here I will continue with the use of the word pleadings or pleading when appropriate. 35. Part 26.2 therefore allows a court to strike out a pleading for any of the four reasons identified in the rule. While a decision under (a) or (d) may decide the action, in the sense of concluding it, generally such a decision will not directly decide the substantive issues in the claim. They treat more with the procedure followed rather than the substance of the claim. In those circumstances an appeal from such a decision will generally be a procedural appeal. 36. Decisions under (b) and (c) are not always so clear-cut. Decisions under those grounds can, but may not always, directly deal with the substantive issues in the case. So for example an action for damages for breach of contract or based on a tort may be determined upon an application made under either (b) or (c) on the ground that the cause of action is statute-barred. A decision in these circumstances will not have 10 Part 2 Page 12 of 14
treated with the substantive issues in the case directly or at all but rather proceeds on the basis that too much time has passed for the court to examine such a claim. Or the application may be brought under (b) or (c) but in fact on further examination the application is really based on the failure of the defendant to comply with Part 10 resulting in the defence disclosing no ground for defending the claim. Again here there may be no direct determination by the judge or master of the substantive issues. 37. On the other hand an application under (c) may deal treat with every issue of law and fact raised by the other side and in those circumstances does deal with the substantive issues. In the cases which are not clear-cut therefore, in order to determine whether an appeal from the decision of the judge is or is not a procedural appeal, there needs to be an examination of the issues in the case; the decision of the judge and, particularly in circumstances such as this where there are no reasons, the nature of the application, the grounds upon which the application is based, the evidence adduced and the submissions made. The mere fact that an appeal is from an application made pursuant to Part 26.2 of the CPR is not determinative of the procedure to be followed on appeal. 38. In the instant case, while the grounds for the application and the submissions treated solely with the limitation point, it is clear that the evidence adduced dealt with the other substantial issue in the case, that is, whether the sum claimed was due and owing. In the absence of reasons the only inference to be drawn is that in coming to his decision the judge took into consideration all the evidence adduced. In these circumstances therefore it must be presumed that, in awarding judgment to the Page 13 of 14
Claimant, the judge directly dealt with the substantive issues in the case. The appeal therefore is not a procedural appeal. 39. In the circumstances the appeal was dismissed on its merits. J. Jones Justice of Appeal Page 14 of 14