Gule Yasmin Shah and others -v- The Parrot Cay Club Ltd. and others (CL AP 1 and 2 of 2024) [2024] TCACA 9 (17 May 2024)

Leave to Appeal- The Test for granting Leave to Appeal- Whether the appeal has a reasonable prospect of success- Whether there is some other compelling reason for the appeal to be heard.

This case arose from the drowning deaths of a newlywed couple, Dr. Noor Shah and Mr. Mohammed Malik, who were guests at the COMO Hotel on Parrot Cay. The plaintiffs, who are the relatives of the deceased, brought claims under the Fatal Accidents Ordinance against the defendants, who are the owners and operators of the hotel.

Trial Judge's Decision

The trial judge, Gruchot J, granted a summons to strike out the claims against the 1st and 3rd defendants, as well as parts of the statement of claim referring to the names and addresses of the directors and the fixed assets of the 2nd defendant. The judge relied on the affidavit evidence of Taparahi Tibble, a director of the defendant companies, and found that the claims against the 1st and 3rd defendants had no reasonable prospect of success.

Application for Leave to Appeal

The plaintiffs applied for leave to appeal against the striking out orders. They argued that the appeal had a real prospect of success because the trial judge failed to consider the delay in filing the striking out application and a defect in the application for not specifying the ground under Order 18 rule 19. They also argued that there were compelling reasons for the appeal to be heard, such as the importance of identifying responsible parties for the safety of tourists in the Turks and Caicos Islands.

Court of Appeal's Decision

The Court of Appeal found that the appeal had a real prospect of success because the trial judge erred in relying on affidavit evidence to strike out the claims on the ground of no reasonable cause of action, and in failing to consider the issue of prejudice to the plaintiffs. The Court also found that there were compelling reasons to hear the appeal, including clarifying legal questions of public interest and the importance of the case for the tourism industry. The Court granted leave to appeal and set aside the relevant orders of the trial judge.