The Attorney General of the Federation of St. Christopher and Nevis v SKN Choice Times Ltd

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Michel JA
• Judgment Date: 27 May 2022
• Judgment citation (vLex): [2022] ECSC J0527-2
• Docket Number: SKBHCVAP2019/0045

Between:

The Attorney General of the Federation of St. Christopher and Nevis

Appellant

and

SKN Choice Times Limited

Respondent

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mde. Gertel Thom Justice of Appeal

SKBHCVAP2019/0045

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal — Contract law — Breach of contract — General damages — Whether the respondent had complied with the terms of the contract between the parties — Whether the learned judge erred in his calculation of damages awarded to the respondent for breach of contract — Whether the learned judge erred in his stipulation of the date by which the general damages awarded to the respondent was payable — Interest — Pre-judgment interest — Whether the learned judge erred in his award of interest on damages payable to the respondent — Costs — Whether the learned judge erred in awarding prescribed costs to the respondent

On 1 ^st September 2014, the Government of the Federation of St. Christopher and Nevis (hereafter “the Government”) represented by the Attorney General, entered into an agreement with SKN Choice Times Limited (hereafter “Choice”) under the terms of which the Government engaged the services of Choice ‘to carry live or via recording all broadcasts or as much as reasonably possible of the broadcasts of the Government, those of the National Parliament and those of any department of the Government which is deemed appropriate for such broadcast’. Choice claims that it duly and faithfully fulfilled its obligations under the contract, whilst the Government, since 15 ^th March 2015, refused to continue to honour the contract. Choice further claims that it had continued to allow all of the Government's broadcasts to be published on its station even up to the filing of their claim against the Government on 14 ^th December 2015.

Because of the Government's alleged failure to honour its payment obligations under the contract, Choice instituted proceedings against the Government, claiming: “(1.) payment of the amount of $225,000.00 ECC representing the contract sum up to 31 ^st August 2016 in the terms of the contract between the parties entered into on the 1 ^st September 2014 for the provision of broadcast services provided by the Claimant to the ‘Government of St. Christopher and Nevis’, represented by the Defendant (2.) general damages for breach of contract (3.) statutory interest on the sum of $225,000.00 ECC from 15 ^th March 2015 until full payment of the said sum (4.) statutory interest on the damages awarded from the date of judgment until full payment thereof (5.) costs [and] (6.) such further or other relief as the court considers just.” After trial of the matter by the learned judge on 15 ^th October 2019, he rendered an oral judgment whereby he made the following orders: “1. Judgment is entered in favour of the Claimant in the sum of $225,000.00 for breach of contract to be paid by the Defendant within 14 days of today's date. 2. The Claimant is entitled to interest at a rate of 5% per annum on the total sum from 15 March 2015 until final payment. [and] 3. Prescribed costs are awarded to the Claimant pursuant to CPR 65.5 to be paid by the Defendant within 14 days of today's date.”

Being dissatisfied with the decision of the learned judge, the Attorney General appealed on 14 grounds of appeal. In summary, the issues before this Court are: (i) Whether Choice had complied with the terms of the contract between the parties; (ii) Whether the learned judge erred in his calculation of damages awarded to Choice for breach of contract; (iii) Whether the learned judge erred in his stipulation of the date by which the general damages awarded to Choice was payable; (iv) Whether the learned judge erred in his award of interest on damages payable to Choice; and (v) Whether the learned judge erred in awarding prescribed costs to Choice.

Held: allowing the appeal in part and making the orders set out at paragraph 33 of this judgment, that:

• 1. Having before him the evidence of Choice's witnesses attesting to the fact that Choice had complied with the terms of its contract, and that it was the Government which was in breach of its contract with Choice, and having no evidence to the contrary, the learned judge did not err in finding in favour of Choice and determining that it was the Government which failed to meet its obligations under the contract. There is no basis therefore for this Court to disturb the learned judge's findings on breach of the contract between the parties.

• 2. The amount which would have been paid to Choice if the contract had not been breached would be $12,500.00 on 15 ^th March 2015 and $12,500.00 on the fifteenth day of each succeeding month until 15 ^th August 2016, totaling $225,000.00; which is the amount ordered by the learned judge to be paid by the Government to Choice for breach of contract. Therefore, the judge's calculation of damages for breach of contract is affirmed.

• 3. There is no legally nor logically justifiable basis for a judge to set ‘an expiration date’ for the payment of an award of damages. Therefore, the learned judge's order that the award of $225,000.00 was to be paid by the Government within 14 days of the date of the order is set aside.

• 4. The High Court in St. Christopher & Nevis has jurisdiction to award pre-judgment interest and post-judgment interest. However, the learned judge did err when he assimilated pre-judgment interest and post-judgment interest, which are payable from and to different dates and sometimes at different rates, and with pre-judgment interest being discretionary and post-judgment interest being mandatory. By way of pre-judgment interest the judge ought to have ordered interest on each amount of $12,500.00 from the date when that payment became due until the date of judgment. Therefore, the learned judge erred when he ordered that interest on the entire amount of $225,000.00 was to be paid from 15 ^th March 2015, because all that was due on 15 ^th March 2015 was $12,500.00 and not $225,000.00, and $25,000.00 was due and not $225,000.00 on 15 ^th April 2015, and continuing with this arithmetic progression until 15 ^th August 2016. As to the rate of interest to be applied in respect of pre-judgment interest, this can vary, but is essentially a discretionary power to be exercised by the judge. The learned judge chose to apply the same rate to the award of pre-judgment interest as is statutorily applied to post-judgment interest, and no issue can be taken with him on his exercise of discretion in this regard, even though this Court might have applied a different rate.

  Section 7 of the Judgments Act Cap 3.14, Revised Laws of Saint Christopher & Nevis 2002 applied; Alphonso and Others v Deodat Ramnath (1997) 56 WIR 183 followed; Steadroy Matthews v Garna O'Neal BVIHCVAP2015/0019 (delivered 16th January 2018, unreported) followed; Andrey Adamovsky et al v Andriy Malitskiy et al BVIHCMAP2014/0022 (delivered 3rd February 2017, unreported) followed; Section 29 of the Eastern Caribbean Supreme Court (Saint Christopher & Nevis) Act Cap 3.11, Laws of Saint Christopher and Nevis applied.

• 5. An award of costs, both as to the incidence of it and the quantum of it, is — subject to Parts 64 and 65 of the Civil Procedure Rules 2000 — at the discretion of the trial judge. In this case, the learned judge made an award of prescribed costs to be paid to Choice by the Government and there is no basis for this Court to disturb his order.

  Parts 64 and 65 of the Civil Procedure Rules 2000 applied.

Appearances:

Mr. Terence Byron for the Appellant

Mrs. Angela Cozier for the Respondent

Michel JA

1 This is an appeal against a decision of the learned judge contained in an oral judgment rendered by him on 15 ^th October 2019.

Background

2 The brief facts of the case are that on 1 ^st September 2014, the Government of the Federation of St. Christopher and Nevis (hereafter “the Government”) represented by the Attorney General, entered into an agreement with SKN Choice Times Limited (hereafter “Choice”) under the terms of which the Government engaged the services of Choice ‘to carry live or via recording all broadcasts or as much as reasonably possible of the broadcasts of the Government, those of the National Parliament and those of any department of the Government which is deemed appropriate for such broadcast’.

3 The agreement provided in clause 1 that:

“Reasonable notice of each such live broadcast shall be given to Choice beforehand and wherever possible a schedule of assignments requiring both live and recorded programs shall be prepared and given to Choice at least one (1) week in advance.”

4 Clause 2 of the agreement provided that: ‘As full and inclusive remuneration for all services to be rendered by Choice to the Government hereunder Choice agrees to accept payment in the sum of EC$12,500.00 per month…’.

5 Clause 5 of the agreement provided as follows:

“If for any reason Choice does not perform 100% of the services to be rendered in any one day/week/or month, it shall where appropriate within two weeks of the end of the relevant period perform extra services such that the services not performed have been made up for and thereon it shall be entitled to the payment agreed per month for its services.”

6 Clause 6 provided as follows:

“If Choice does not perform the services herein agreed to be performed over the period of two (2) consecutive months, the Government may give Choice time over which it may perform additional services to make up the shortfall and if it does not do so within the time allowed, the Government may terminate this Agreement at its discretion and Choice shall not be entitled to any payment corresponding to the period over which it was in default.”

7 Choice claims that it has duly and faithfully fulfilled its obligations under the...