CL 178/10
IN THE SUPREME COURT
TURKS AND CAICOS ISLANDS
BETWEEN
ATTORNEY GENERAL
PLAINTIFF
AND
(1) CLYDE BRADLEY ROBINSON
(2) SUSANNAH MARIE BISHOP (formerly Robinson)
DEFENDANTS
BEFORE RAMSAY-HALE CJ
Mr. David Phillips QC for the Applicant
Mr. Ariel Misick QC for the Respondent Clyde Robinson
Mr. Guy Chapman for the Respondent Susannah Marie Bishop
Heard on the 27th November 2014
JUDGMENT
1. This is the decision on the Crown's amended Application seeking an extension of time within which
to appeal to the Court of Appeal against the substantive decision of this Court which was handed
down on 29 November 2014.
2. The Crown missed the 28 day time limit for giving Notice of Intention to Appeal though an unsigned
version of the Notice was sent to the putative Respondents to the appeal by email on 20 December
2013. The signed and sealed copies were not served until 16 January 2014. The Crown thereafter
applied to the Court of Appeal by Notice of Motion dated 21 January 2012 to extend time for
bringing the appeal but the Court of Appeal dismissed the application on the ground that it had no
jurisdiction to do so under the Court of Appeal Ordinance.
3. The Crown then sought leave to appeal the ruling of the Court of Appeal on the question of its
jurisdiction to enlarge time by Notice of Motion filed on 8 August 2014. Leave was refused by the
Court of Appeal in a decision handed down on the 11 September 2014.
4. Immediately thereafter the Crown sent a draft of this application to the Defendants by email. The
sealed copy was served on the 25 September 2014 and the application was heard by this Court on the
anniversary of the date of handing down of the judgment.
5. In civil appeal 01/2000 Inversiones Globales Ltd. v Hape the Court of Appeal held that the Supreme
Court had jurisdiction to extend time within which to appeal and further, that there was no limitation
prescribing the timeframe within which the power to extend time may be exercised.
6. The factors which the Court will take into account when considering such applications were set out in
CM Van Stillevoldt BV v EL Carriers [1983] 1 WLR 207 and are (1) the length of the delay; (2) the
reasons for the delay; (3) the chances of the appeal succeeding if time for appeal is extended; and (4)
the degree of prejudice to the potential respondent if the application is granted.
7. Mr. Phillips QC asserts that the original delay of 20 days in filing and serving the Notice of Appeal
was not inordinate. He asks the Court to find that there were substantial reasons for the delay as it was
in large part due to the fact that the Crown did not receive the sealed documents from the Court until
the 8 January 2014, by which time the date for service had already passed. The further delay of 8 days
in serving the documents was caused by what he describes as "logistical difficulties" I which he does
not fully explain.
8. He ascribes the further delay of 8 months in making this application to the procedural course adopted
by the Appellant which he argues they were right to do given the well-known tension between the
Ordinance and the Rules which the Crown was seeking to resolve in argument before the Court of
Appeal and on appeal to the Privy Council.
9. He submits that the appeal is neither fanciful nor hopeless per the test laid down in Quillen v Henry
Westwood & Reigels [1999] 58 WIR 143 but raises serious issues fit for consideration by the Court of
Appeal. He contends that as no evidence of prejudice has been adduced by the Respondents and such
prejudice as the Defendants have asserted in response to the Crown's application is not relevant, the
Court should accede to the Crown's application.
10. Unsurprisingly, the application is opposed by both Defendants.
11. Mr. Misick QC submits, on behalf of Mr. Robinson, that no adequate reason has been giving for the
Crown's failure to make an application to this Court for an extension of the time within which to
appeal in January 2014. He criticises the decision of the Crown to apply to the Court of Appeal for an
extension of time and thereafter seeking leave to appeal to the Privy Council in the circumstances
where the Crown as a party to the Inversiones Globales appeal was well aware that the Court of
Appeal had already determined that it had no jurisdiction and this Court's jurisdiction to extend time
was not being challenged.
12. He submits that the Defendants have been prejudiced by the delay in having to face an appeal now
some twelve (12) months after the dismissal of the Applicant's claim and that in the absence of good
reason for the delay the Court should refuse to extend the time. He contends that the prejudice lies in
the fact that for over a year the Respondent Clyde Robinson has been faced with the uncertainty of
not knowing whether the serious allegation of misconduct which has been publicly announced and
Skeleton argument para 12
commented on by the Applicant has been resolved which uncertainty extends to the adverse financial
consequences of the potential for a judgment in a large sum hanging over his head.
13. He submits finally that the appeal has no realistic prospect of success for reasons which are fully set
out in his skeleton and which I will not rehearse here.
14. Mr. Chapman submits on behalf of Ms. Bishop that the Crown's delay in making this application is
unexplained save that it wished to pursue the matter through the Court of Appeal and to the Privy
Council rather than apply to this court. He contends that the course adopted by the Crown has caused
worry, concern and expense to Ms. Bishop who has had to retain legal advisors in England and TCI in
response to the Crown's attempts to get around the time limits set by the Ordinance and if they were
granted an extension of time, Ms Bishop would incur further expenses and face financial ruin.
15. The reasons for the delay in filing and serving the notice of appeal and grounds are in my view
insufficient. It was open to the Crown to request that the documents be stamped and returned
forthwith on the ground that the matter was time sensitive. I don't understand the assertion that the
documents were not received from the Court until the 8th of January as the Court does not return
documents for service. Rather, once sealed, they are available for collection at the Court's Office. The
8th of January may be the date the Crown collected them, but I am not sure I can accept that the
implied assertion that documents were not ready for collection sooner without more.
16. As to the further delay in making this application caused by the procedural course adopted by the
Crown, it is incomprehensible to me that the Crown, having erred in seeking an extension of time
before the Court of Appeal in the face of the decision in Inversiones, should then seek leave to appeal
to the Privy Council against that decision instead of applying to this Court to extend time. No reason
has been advanced save that the attorneys for the Crown believed the Court of Appeal to be wrong.
17. The lapse of time since judgment may itself constitute prejudice depending on the length of the delay
and on the other facts of the case as the Court in Greig Middleton and Company Ltd v Denderowicz
[1997] 4 All E. R. 699, emphasised. Saville IJ at para 7.14 of the judgment, stated,
"It may well be that where the delay in appealing is as short as it was in that case, the fact that the
case will be re-opened will carry little weight, but the longer time goes by, particularly if the
defendant has been told, or reasonably assumes, that no appeal will be pursued, the greater the
weight that will be attached to this factor."
18. In this case, the Crown was diligent in prosecuting the appeal though it persisted in the wrong course
for its own reasons. The Defendants have been aware throughout that the Crown was intent on
appealing against the decision of this Court. They have done nothing in reliance on the judgment
obtained in this Court and there is no evidence that any third parties will be affected by the appeal. To
paraphrase the observation of Griffiths LI in CM Van Stillevoldt at p 213, there is no question of the
Defendants being prejudiced, save for the fact that they will now have to face the appeal rather than
the would-be appellant having the door slammed in its face at this stage.
19. This is what I take Mr. Phillips to mean when he says there is "no relevant prejudice," as being put to
expense and experiencing uncertainty are ordinary incidents of having to respond to an appeal
whether the appeal is brought within or outwith the time limited.
20. I am satisfied that there is no prejudice to the Defendants which tells against the granting of the
Crown's application. I am also of the view that the appeal raises some important issues of law,
particularly with respect to the Stamp Duty claim. For these reasons, notwithstanding the delay in
serving the Notice of appeal and in making this application for an extension of time for which no
good reason has been advanced, I grant the Crown's application to extend time and order that the
Crown file and serve its Notice of Appeal within 7 days of the date hereof.
21. I do not accept the Crown's submission that the Defendants should have consented to this application
and should therefore be made to bear them. The costs of and occasioned by this application are to be
paid by the Crown to the Defendants.
DATED THE 3RD DAY OF FEBRUARY 2015
CHIEF JUSTICE