Dion Weekes v Providence Estate Ltd; David Brandt v Owen Rooney

• Jurisdiction: Montserrat
• Judge: Ellis JA
• Judgment Date: 20 June 2024
• Neutral Citation: MS 2024 CA 1
• Docket Number: MNIHCVAP2023/0007
• Court: Court of Appeal (Montserrat)

Between:

Dion Weekes

Appellant

and

[1] Providence Estate Limited

[2] Owen Rooney

Respondents

Between:

David Brandt

Appellant

and

Owen Rooney

Respondent

Before:

The Hon. Mde. Margaret Price Findlay Justice of Appeal

The Hon. Mde. Vicki Ann Ellis Justice of Appeal

The Hon. Mr. Trevor Ward Justice of Appeal

MNIHCVAP2023/0007

MNIHCVAP2023/0008

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Costs — Costs upon a discontinuance — Discretion to depart from the general rule on costs — Whether the learned judge erred in allowing the respondents to discontinue claims against the appellants with no order as to costs — Overriding objective — Whether the learned judge erred in failing to afford the parties the opportunity to be heard on the issue of costs following the discontinuance — Abuse of process — Locus standi — Whether the learned judge erred in finding that that the preliminary issue (which questioned the locus standi of Mr. Rooney to instruct PEL to bring the claims) amounted to an abuse of the court's process — Ratification — Whether the learned judge failed to appreciate that integral to the argument concerning ratification was the issue of Mr. Rooney's entitlement to direct PEL and the continuing non-compliance of PEL under the Companies Act

Providence Estate Limited (“PEL”), with Owen Rooney (“Mr. Rooney”) as a director, acquired 53 acres of land in Montserrat in 1989. PEL and Mr. Rooney contend that properties belonging to them were illegally sold or fraudulently transferred to others by deception. Mr. Rooney has filed many claims and sought many reliefs, ultimately seeking to recover the property and to be awarded damages. This dispute has resulted in extensive litigation over the past 10 years with Mr. Rooney filing some 42 claims in his own name and in the name of PEL. By notices filed in January of 2015, both appellants applied to strike out the respondents' claims in MNIHCV2013/0026 and MNIHCV2013/0027. These applications were heard in the High Court by Combie-Martyr J and disposed of in a written judgement delivered on 13 ^th August 2015, where she found that in order to justify striking out the claims, the court would have to embark upon a mini trial of the claims which a court is not required to do at that stage of proceedings.

On 29 ^th March 2023, the Government of Montserrat (“GoM”) made an application for the determination of a preliminary issue under Rule 26.1(2)(i) of the Civil Procedure Rules 2000 (“CPR”), namely - whether Mr. Rooney had locus standi to bring proceedings in his own name and to direct PEL to issue proceedings. The learned judge determined that since the locus standi issue was common to all outstanding cases before the court, he would consider that application in conjunction with other claims, including claims against both David Brandt (“Mr. Brandt”) and Dion Weekes (“Mr. Weekes”). Before the preliminary issue could be heard, Mr. Rooney filed an application on 23 ^rd June 2023 seeking leave to discontinue his claims in MNIHCV2023/0011, MNIHCV2013/0026 and MNIHCV2013/0027 on the basis that there be no order as to payment of any of the defendants' costs (“the Discontinuance Application”).

The learned judge heard the preliminary issue on 7 ^th July 2023 and in a written judgment delivered on 9 ^th August 2023, found, inter alia, that PEL had the necessary standing to bring proceedings against individuals for recovery of land and/or damages for fraud and/or misfeasance. He also granted leave to Mr. Rooney to discontinue all claims referenced in the judgment with no order as to costs.

Being dissatisfied, Mr. Weekes and Mr. Brandt filed notices of appeal challenging the learned judge's orders. As both appellants sought to challenge the order granting leave to Mr. Rooney to discontinue his claims with no order as to costs, this Court, by consent, ordered that they be heard together. Mr. Weekes, in his notice of appeal, cited five additional grounds. However, only one other main issue fell to be decided: whether the learned judge erred in finding that the preliminary issue (which questioned the locus standi of Mr. Rooney to instruct PEL to bring the claims) amounted to an abuse of the court's process.

Held: allowing Mr. Brandt's appeal, allowing ground 6 of Mr. Weekes' appeal only and making the orders set out at paragraph 100 of the judgment, that:

• 1. A court clearly has discretion whether or not to order costs. There is however a general rule or presumption which applies where a claim is discontinued. Rule 37.6(1) of the CPR states that a claimant who discontinues a claim is liable for the costs incurred by the defendant against whom the claim is discontinued, on or before the date on which notice of discontinuance was served. Costs are to be quantified in accordance with the scale of prescribed costs in Part 65 of the CPR, Appendices B and C. The rationale for this presumption or general rule is that where a claimant commences proceedings, he/she takes on the risk of the litigation. If successful, a claimant can expect to recover their costs, but if unsuccessful or the claim is abandoned at whatever stage of the proceedings, it is normally unjust to allow the defendant to bear the costs of proceedings that were forced upon him and which the claimant is unwilling to carry through to judgment.

  Rule 37.6(1) of the Civil Procedure Rules 2000 applied; Brookes v HSBC Bank plc; Jemitus v Bank of Scotland plc [2011] EWCA Civ 354 applied; Maini v Maini [2009] EWHC 3036 (Ch) considered.

• 2. The power to depart from the general rule is to be exercised applying the factors which would normally inform the general discretion in regard to costs. However, a judge who is minded to depart from the general rule should afford a defendant an opportunity to make representations. While the burden of displacing the general rule rests with the party who asserts that it should be displaced, whether the general rule should be displaced is determined by reference to the facts of the particular case and the factors which are prescribed in Part 64 of the CPR. Rule 1.2 obliges a court to seek to give effect to the overriding objective when it purports to exercise any discretion given to it by the rules. That overriding objective mandates that a court deal with cases justly. In this case, the undisputed version of events reveals that without any forewarning to the parties, the judge proceeded to deal with the Discontinuance Application at the conclusion of the delivery of his judgment on the preliminary issue. This would have come as a surprise to the parties and counsel, including counsel for Mr. Brandt who was not present, who were not given an opportunity to make submissions contrary to the principles of fairness and justice integrated into the overriding objective. The appellants should have had an opportunity to put before the judge the full spectrum of factors which should have been applied in departing from the general rule as it is clear that he either did not consider or gave little weight to the same, despite citing legal authorities which would have made it clear that he was obliged to do so. The fact that Mr. Rooney maintained his claims notwithstanding that they were obviously ill-founded as he had no legal interest in the subject matter of the claim is clearly a matter which ought to have been weighed. Accordingly, the learned judge's discretion was not exercised judicially such that his order on costs on the discontinuance must be set aside and the question of be costs remitted to the High Court.

  Rule 1.2 of the Civil Procedure Rules 2000 applied; Nelson's Yard Management Co v Eziefula [2013] EWCA Civ 235 applied; Gajadhar v Public Service Commission TT 2014 CA 3 applied.

• 3. There can be no doubt that courts retain a general jurisdiction to control abuses arising out of proceedings that come before them. Often however, as it is in this appeal, the real question is the extent of that jurisdiction. The GoM parties did not join in the strike out application concerning the locus standi of PEL. At paragraph 63(b) of his judgment, the judge merely cited that fact, reinforcing that the objections regarding PEL's standing ought to have been raised by the GoM parties much earlier than occurred. In the premises, it is arguable that the judge's comment could ground a substantive finding of res judicata as it relates to the GoM. However, even if it could not, what is clear is that the GoM has not appealed that finding and it is difficult to discern the basis upon which Mr. Weekes would choose in his appeal to challenge observations made in respect of the GoM parties. This is especially so when in more critical findings, the judge disposed of the objections to PEL's locus standi preventing any further argument on the issue and declaring that PEL has locus standi. Mr. Weekes did not (save for the question of ratification) address these findings and this part of his appeal must fail.

  Hunter v Chief Constable of the West Midlands Police [1982] AC 529 applied; Levi Maximea v The Chief of Police et al DOMHCVAP2020/0009 (delivered 7th December 2023, unreported) followed.

• 4. On the question of whether the learned judge failed to appreciate that integral to the argument concerning ratification was the issue of Mr. Rooney's entitlement to direct PEL and the continuing non-compliance of PEL under the Companies Act, Mr. Weekes failed to demonstrate any real or substantial prejudice. The cause of action against him remains the same and it has not been made out that ratification would cause him any prejudice or embarrassment. Accordingly, this aspect of Mr. Weekes' appeal must also fail.

  Bird v Brown (1850) 4 Exch 786 applied; Smith v Henniker-Major & Co [2002] EWCA Civ 762 distinguished.

Appearances:

Mr. Sylvester Carrot and Dr. David Dorsett for Dion Weekes

Dr. David Dorsett for David Brandt

Ms. Nadia Chiesa for the Respondents

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