Duncanson & Co. (Beryn Duncanson dba) v East Wind Development Company Ltd and Ors. (CL-AP 08, 13, and 14/2023) [2024] TCACA 12 (5 August 2024)

Background Facts

1. Duncanson & Co. (Beryn Duncanson dba) filed several appeals (CL-AP 08, 13, and 14/2023) against East Wind Development Company Ltd, William Dean Reeves, Richardson Arthur, Jeffrey Herman, Ronnie Moore, John Fleming, William Maddox, WB Corporate Management Ltd, and Saunders & Co. (Norman Saunders Jr. dba). The appeals relate to orders made by the Court on October 27, 2023.

Allegations of Bias

2. The Appellant alleges that Justice Bernard Turner, who was part of the panel, is a long-standing member of the Freemasons fraternity in the Bahamas. This information came to light recently, causing concern about apparent bias due to the connection with Gruchot J, who was the judge in the lower court. The Appellant argues that Freemasons are known to assist their "brothers in need," leading to a fear of not getting a fair trial.

Allegations of Fraud

3. In CL-AP 14/2023, the Appellant alleges that the judgment was obtained by fraud. Counsel for the Respondents and Crown allegedly misrepresented that the Registrar of Lands did not believe he had made a mistake in registering the restrictions, while the Crown's earlier submissions stated otherwise.

Allegations of Mistake

4. The Appellant contends that the Court's judgment in CL-AP 14/2023 contains numerous inadvertent mistakes on points of fact and law, rendering the judgment inconsistent and unsafe.

Conditional leave to appeal to JCPC

5. The Appellant applied for conditional leave to appeal to the Privy
   Council in respect of Appeals CL-AP 8, 13 and 14/2023. The Appellant submitted that he had an automatic right to appeal to the JCPC since it is a matter of public importance. He submitted that he was unable to properly prepare these applications because despite numerous requests to the Registrar for the transcripts of the proceedings of the Court of Appeal for October 2023, he has not obtained them. He alleges that the Registrar acts under external influence and that there is manifest irregularity and procedural impropriety in the TCI’s court system which has infected the Court of Appeal. He also alleges that the Registry refused to stamp “filed” on his notice of appeal CL-AP 8/2023.

6. The Respondents submitted that the Appellant’s application has not been filed in accordance with Article 4 of Turks and Caicos Islands (Appeal to Privy Council) Order 1965 (U.K. Statutory Instruments No. 1863/1965 and No. 1084/1973) (“The Order”) and are therefore out of time. The Court of Appeal has no jurisdiction to extend time since the wording of Article 4 makes it mandatory. The judgments were delivered on October 27, 2023, and the Notices for conditional leave were filed on November 28, 2023, some 32 days after the delivery of the said judgements. Therefore, the applications came some 11 days following the 21-day limit provided by Article 4 of the order. In the circumstances, the applications ought to be dismissed.

Costs in CL-AP 08/2023 and CL-AP 13/2023

7. The Court initially ordered indemnity costs against the Appellant in these appeals. However, the Acting President of the Court of Appeal later attempted to amend the costs order via email, seeking to grant the Appellant costs on the issue of abuse of process. The Court of Appeal was asked to determine what was the correct costs order.

Held:

8. The Court of Appeal dismissed the appellant's appeals against the lower court's decisions. The applications for conditional leave to appeal to the JCPC were refused as being out of time. The respondents were awarded 85% of their costs as the overall successful parties, as they unreasonably pursued the abuse of process issue.

Bias

9. The court held there was no merit in the bias ground of appeal.

10. The proper test to be applied in determining whether a Judge should recuse himself from presiding over a case has been developed over several years and settled by the House of Lords in Porter v Mc Gill [2002] 2 AC 357. There Lord Hope in his judgment confirmed that the test for apparent bias is whether the fair-minded and informed observer having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The JCPC has consistently found that the Porter v Mc Gill test is applicable in determining applications for recusal on the ground of apparent bias. See Save Guana Cay Reef Assn Ltd and Ors v R and Ors [2010] 2 LRC 530 and Renraw Investments Ltd and Ors v Real Time Systems Ltd (Trinidad and Tobago) 2023 UKPC 39.

11. In Locobail (UK) Ltd v Bayfield Properties Ltd and Another [2000] 2 WLR 870, the Court considered it dangerous to define factors which may or may not give rise to a real danger of bias and could not conceive the circumstances in which an objection could be soundly based on religion, ethnic, national origin, gender, age, class, Judge’s sexual orientation or membership of a masonic organisation, including several others.

12. Any allegation of bias, must not only be specific but there must also be a basis for the allegations. ‘It must not be bait with the hope that the fish would bite’. In other words, it cannot be a spurious allegation with the expectation that it would put the Judge in a position to make a declaration of interest. See R v Manchester, Sheffield and Lincolnshire Railway Company 1867 LR 2 QB 336.

13. The allegations of bias were "ludicrous" and "spurious speculation" with no evidentiary basis. There is absolutely no evidence to confirm that the Judge, is a member of the Masonic brotherhood or that there is a connection between Gruchot J and the Judge that would lead the Judge to be at risk of influence 'high in terms of rank of the shared social connection of Freemasons.

14. To suggest that the Judge would betray his judicial oath, as Counsel for the Respondents submitted, would be nothing but improper and offensive. The Appellant’s case does not fall into any of the categories in which a real danger of bias, or the possibility of bias might arise as discussed in Locabail.

Fraud

15. The court found no merit in the fraud ground of appeal.  It is well established that in order to vary or set aside the Court’s order on the ground of fraud, the allegations must be specifically set out and strictly proven see Jonesco v Beard [1930] All ER Rep 483.

16. In Royal Bank of Scotland Plc v Highland Financial Partners LP [2013] EWCA Civ 328, in discussing the legal framework applicable where there are allegations that the judgement was obtained by fraud at Aikens LJ at paragraph 106 stated as follows:
    1. There must be ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given or action taken, statement made, or matter concealed which is relevant to the judgment now sought to be impugned.
    2. The relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be “material”, meaning that the fresh evidence adduced after the first judgment is given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the Court’s decision to give judgment in the way it did.
    3. The materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.

These principles were approved and clarified in the recent case of Tinkler v Esken (Formerly Stobart Group Ltd) [2023] EWCA Civil 655.

17. In this case, the questions which arise for our determination are:
    a) What is the conscious and deliberate dishonesty in relation to the submissions made by Counsel for the Respondents and the Crown which is relevant to the judgment sought to be impugned? OR
    What was the fraud by which the judgment was obtained?
    b) Were the relevant submissions presented with conscious and deliberate dishonesty material in the sense that it demonstrated that the previous submissions were an operative cause for the Court to give judgment in the way it did? OR Would the new evidence of fraud entirely change the way in which the first Court approached and came to its decision?

18. There was no evidence of "conscious and deliberate dishonesty" by counsel that was an "operative cause" for the court's decision. In my view, this did not constitute fraud since there is no evidence that it was a conscious and dishonest misrepresentation. I am of the view that the Appellant has not proven that the judgment was obtained by fraud.

Mistake

19. The Appellant contended that the court’s judgment in CL-AP 14/2023 consists of numerous inadvertent mistakes on points of fact and law and as a result, the judgment is inconsistent and unsafe.

20. The court held there was no merit in the mistake ground of appeal.

21. The Court has an inherent jurisdiction to review and correct its judgment at any time before the Order is drawn up and perfected see Re L and B (children) [2013] 2 All ER 294. In CMK BWI Ltd and others v Attorney General (CL-AP 16 of 2018) [2021] TCACA (22 June 2021), Morrison P discussed the Court's power to correct errors in its judgment. At paragraph 28 he stated:

“[28] It is therefore clear from the authorities that the court has an inherent jurisdiction to correct errors in its judgment, provided that (i) it has not yet been perfected; and (ii) neither party has yet acted upon the decision to his or her detriment. In this regard, there is no rule requiring exceptional circumstances as a precondition to the exercise of the jurisdiction, nor is the exercise of the jurisdiction limited to cases in which the parties are agreed that the judgment contains an error. The overriding objective in every case must be to decide the case justly, taking into account all relevant factors and surrounding circumstances. However, I would expect the court to be guided by Lady Hale's further observation in Re L and B (Children), albeit in reference to the analogous power in the CPR to revisit a judgment even after it has been perfected, that the power "does not enable a free-for-all in which pervious orders may be revisited at will... [i]t must be exercised 'judicially and not capriciously”.”

22. The appellant failed to clearly identify and demonstrate the alleged errors. The Appellant’s allegation on this aspect of the appeal is rather ambiguous. He has
    neither pointed with clarity to the numerous mistakes he alleges nor demonstrated that they were wrong. The Appellant has therefore failed to satisfy the Court of the erroneous parts of the judgment.

Conditional leave to appeal to JCPC

23. The applications were refused as being out of time under the statutory framework.

24. Appeals to the JCPC are governed by Articles 3 and 4 of the Turks and Caicos Islands (Appeal to Privy Council) Order 1965 (U.K. Statutory Instruments No. 1863/1965 and No. 1084/1973. The above provisions make it abundantly clear that an appeal shall lie, as of right for any final judgment where the matter in dispute is of the value of 300 pounds sterling or upwards, or the appeal involves some claim or question in respect of property or civil right to the said value or upwards. The application for leave to appeal to the JCPC shall be made within 21 days of the date of the judgment to be appealed from and notice of the application must be given to all the other parties. An appeal shall also lie with leave of the Court where the question to be determined is of great or general importance or otherwise.

25. The court has no power to extend time to file an appeal to the Privy Council, see Tremblay v Bank of Nova Scotia Trust Company Caribbean Ltd (1999) 58 WIR 29; Boyd-Meester v Fitzwilliams (1983) 18 Barbados LR 69 (Unreported); Habour Cold Stores Ltd v Chas E Ramson Ltd and Ors (1980-84) LRC, (Comm) 308, (Jamaica); Roulstone v Panton (1979) 1 WLR 1465; Enos Miller v McKinney Bancroft and Hughes and another (2021) 99 WIR 77, (Bahamas); Attorney-General of The Gambia v N'jie [1961] 2 All ER 504.

26. A review of the above cases reveals the following important points:
    i. Article 4 of the Order (TCI) is a mandatory provision (Tremblay v Bank of Nova Scotia Trust Company Caribbean Ltd ).
    ii. (a). Even where an appeal lies as of right, it is still necessary to comply with the time frame set in Article 4, (b). Even where the appeal lies with leave of the Court, it is still necessary to comply with the time frame set in Article 4 (Enos Miller v McKinney Bancroft and Hughes and another.)
    iii. The Rules governing appeals to the JCPC were made in the exercise of the powers set out in the Judicial Committee Act 1844, 7,8, Vict. C. 69 by her Majesty on the advice of the Privy Council. Amendment to these Rules does not lie within the competence of the Rules Committee of the Supreme Court of TCI, Jamaica, Barbados, or any other territory in which the Order is still in force (Habour Cold Stores Ltd v Chas E Ramson Ltd and Ors).
    iv. Where a maximum period is laid down by the Order in Council, the Court has no jurisdiction to alter the Order by extending that period (Roulstone v Panton).
    v. However, the Court may be given the power to regulate the time within which an Appellant might take the necessary step for processing and preparing the Record and dispatching same to England as the Court, having regard to all the circumstances of the case, may think it reasonable to impose (Roulstone v Panton).
    vi. Article 4 does not intend that the parties be served within the 21 days, but that they be served as soon as possible (Attorney-General of The Gambia v N'jie and Attorney General of Turks and Caicos Islands v Salt Cay Devco Ltd and Ors).
    vii. Article 4 does not intend that the application itself be heard and determined within 21 days (Attorney-General of The Gambia v N'jie).
    viii. In TCI, Article 4 intends that time begins to run from the date that the judgment to be appealed from was pronounced in Court. In the Cayman Islands, under section 4 of the Order, time begins to run from the date of the filing of the decision to be appealed from.
    ix. In the Cayman Islands, the date of the decision is interpreted in accordance with the joint effect of the Court of Appeal law, Court of Appeal Rules and the Grand Court Rules and time is calculated from the date upon which the judgment is filed.
    x. Since appeals to the JCPC are governed wholly by the TCI Order which governs appeals to the JCPC and the Order was made by her Majesty in the exercise of her powers derived from the Judicial Committee Act and in accordance with the advice of the Privy Council, the local court have absolutely no jurisdiction to use its own Rules or formulate new ones or import Rules from elsewhere when interpreting the Order.

27. Having regard to the above, it is clear that the Appellant’s notices seeking conditional leave to appeal to the JCPC were filed out of time. There is no power in the Court of Appeal to extend time.

Costs

28. The respondents were awarded 85% of their costs as the overall successful party, as they unreasonably pursued an abuse of process issue.  The general rule with respect to costs orders was explained by the Lord Kerr in Capron
    v Government of Turks & Caicos Islands and Anor. (JCPC 30 of 2009) [2010] UKPC 2.

29. In Rawson McDonald and Rawson McDonald & Company and Paul. R Major (Costs) SCCivApp No. 94 of 2017 the Court emphasized the point that the discretion to dispense with the general rule must be exercised judicially, that is in accordance with established principles in relation to the facts of the case and there must be good grounds for doing so. Also, in Bahamas Power & Light Company Limited and Ervin Dean SCCivApp. No. 115 of 2021, the Court stated that “the award of costs is a discretionary power of the Court and it is expected that the discretion will be exercised judicially”.

30. The Court of Appeal has previously made orders awarding the successful party only a percentage of the cost. See Governor of The Turks and Caicos Islands, Government of The Turks and Caicos Islands v Trade Wind Industries Limited (CL-AP 3 of 2013) [2013] TCACA 2; Thomas Chalmers Misick v Sandals Resorts International 2000 Limited (CL-AP 50 of 2011) [2014] TCACA 11; CMK BWI Ltd. et al v AG (CL-AP 16 of 2018) [2021] TCACA 2.

31. An order for costs is always at the Court’s discretion. Such a discretion must be exercised judicially and in accordance with established principles as they may be applicable to the fact and circumstances of the case. Generally, costs will follow the event and the successful party will be awarded his costs unless there are special circumstances which may direct the Court against the making of the usual order. Where both parties have won on an issue or issues, the question arises as to whether each of them will be entitled to their costs in relation to their success on the respective issues. That question is answered by having regard to the whole of the circumstances as well as the issues raised and determined by the Court and in consideration of the guiding principles set out in the cases discussed above.

32. In the instant case, it was the Respondents who raised the issue of abuse of process. The fact that the Respondents were not successful on the issue of abuse of process does not necessarily mean that they should be deprived of their full costs. However, in my view, the abuse of process issue was a separate and distinct issue from that of recusal. Reflecting upon the extent to which costs were increased by raising the issue the Court is cognisant of the fact that submissions were prepared and argued in Court, the judge adjudicated upon the issue and overall time and expense were incurred by both the Court and the parties. Such increase in costs would not have occurred had the issue not been raised. It was unreasonable to raise it since it was hopeless and should never have been raised because there was no factual foundation.

33. Ordinarily costs follow the event, with the successful party being awarded their costs to be taxed if not agreed. The Court of Appeal should determine who is the successful party having regard to the appeal as a whole and the issues raised and determined by the Court. Where a party has not been successful on every issue, this is in itself not a reason to deprive them of a part of their costs. However, the court may deprive a successful party of the whole or part of their costs where the allegations which failed caused a significant increase in the length or cost of the proceedings, or were pursued unreasonably.

34. In my view the Court of Appeal should not award costs per issue. Rather the correct approach where there is mixed success is for the Court to determine who is the overall successful party of the appeal, and in the words of Nujee J “fashion a costs order that reflected the fact that each side won in some respects but lost in others”.
35. In my view, the successful party is the Respondents. However, they pursued the abuse of process issue unreasonably, without any foundational underpinnings. Therefore, applying the principles in all the circumstances of this case and in trying to achieve the right result, I am satisfied that the correct approach will be to follow the trend in TCI and make an order which reduces the Respondents’ full costs.