Watson v Fernandes

JurisdictionCaribbean States
CourtCaribbean Court of Justice
Judgede la Bastide, Nelson, J.A., Saunders, J.A., Wit, J.A., Hayton, J.A.
Judgment Date19 Mar 2007
Docket NumberCCJ Appeal No. CV 2 of 2006

Caribbean Court of Justice

de la Bastide, President; Nelson, J.A.; Saunders, J.A.; Wit, J.A.; Hayton, J.A.

CCJ Appeal No. CV 2 of 2006

Watson
and
Fernandes
Appearances:

Mr Benjamin Gibson for the appellant

Mr Lyndon Amsterdam for the respondent

Civil practice and procedure - Legal profession — Representation — Whether an attorney — at — law who is not on record for a client entitled to sign a notice of appeal — No notice of change of attorney filed — Appeal struck out appeal for breach of the rules of the Court — Evidence that at all material times counsel was indeed the legal representative of the appellant — Appeal allowed — Matter remitted to High Court for determination on the merits.

JUDGMENT OF THE COURT: Introduction
1

We heard this matter on 25th January, 2007 and at the end of the hearing we made an order allowing the appeal. We promised then to reduce our reasons to writing and we do so now.

2

The substantive dispute between the parties relates to a claim for land. But the merits of that claim are irrelevant to these proceedings which address purely questions of practice and procedure. There are two such questions. First, is an attorney-at-law who is not “on the record” entitled to sign a notice of appeal on behalf of his client? The second question arises only if the first is answered in the negative: what consequences should follow if such an attorney does sign the notice of appeal?

3

After examining the relevant rules of court, we have determined that the first question should be answered in the affirmative. The second question does not therefore arise. However, it was addressed by the court below and we feel that it is incumbent upon us to say whether that court gave an appropriate answer to it. Moreover, the manner in which it was addressed raises the more general issue of non-compliance with rules of court, a matter on which we think we should provide some guidance.

The factual background
4

The appellant, Mr. Watson, had originally retained Mr. Winston Moore as his attorney-at-law to institute legal proceedings in the Land Court. Mr. Moore duly filed an authorisation from Mr. Watson to act on the latter's behalf as attorney, thus placing himself on the record. We were told that some time later, Mr. Moore took up a judicial appointment. Mr. Watson therefore retained another attorney, Mr. Martin Zephyr, who also filed an authorisation to act signed by Mr. Watson. It seems, however, that what was signed and filed was not a document authorising Mr. Zephyr to act in place of Mr. Moore but instead one authorising him to act as additional attorney on the record. This was an irregularity. What should have been filed by Mr. Zephyr was a notice of change of attorney.

5

No one drew attention to this irregularity and nothing now turns on it. Mr. Zephyr, without objection, commenced the proceedings in the Land Court. Midway through the proceedings, however, for reasons that are not now important, Mr. Watson replaced Mr. Zephyr with Mr. Gibson, his current attorney. Mr. Gibson frankly conceded before us that he was not additional to anyone previously on the record but instead had been retained in place of Mr. Zephyr. Mr. Gibson also told us that he did promise the judge in the Land Court that he would “put his house in order” but he neglected to file any document reflecting the new circumstance. Mr. Zephyr's name remained on the record. Mr. Gibson nonetheless completed the proceedings in the Land Court on behalf of his client, Mr. Watson. Judgment having been given against Mr. Watson, he decided to lodge an appeal. Mr. Gibson personally signed the notice of appeal. At the time that he did so, he still had taken no steps to file in the High Court an authority to act signed by Mr. Watson.

6

Ms. Fernandes, the respondent, never challenged Mr. Gibson's authority to act on behalf of Mr. Watson. Her attorney, Mr. Amsterdam, said to us that during the Land Court proceedings, he had accepted Mr. Gibson's oral assurance that Mr. Gibson would file the necessary authority to act for and on behalf of Mr. Watson. In the days leading up to the hearing of the appeal the parties exchanged skeleton arguments on the substance of the appeal. At the outset of the hearing, however, the Court of Appeal of its own motion raised the issue of Mr. Gibson's alleged lack of authority. After listening to submissions on the matter, the Court ruled that the notice of appeal was a nullity because Mr. Gibson had not placed himself on the record by filing any authority to act signed by Mr. Watson. The Court held that Mr Gibson “was not authorised by the appellant to act on his behalf”. The Court struck out or dismissed the appeal for breach of the rules of Court without any consideration of its merits. Mr. Gibson now appeals that ruling to this court.

7

Of course, if Mr Gibson had not in fact been authorised by the appellant to sign the notice of appeal, the appeal would, indeed, have been a nullity, as appears from Re American Life Assurance Co Ltd. (Civil Appeal No. 8 of 1996) and Heralall v. Shivcharran, (1958) 1 WIR 29 at 30 cited by the Court of Appeal. However, the appellant was personally present at the hearing in the Land Court and in the Court of Appeal. Indeed, he was pointed out by Mr Gibson to the members of the Court of Appeal. It can hardly be disputed that Mr Gibson was acting with the appellant's actual authority. The Court of Appeal seems to have considered this immaterial.

8

In answering the question whether an attorney-at-law not “on the record” is entitled validly to sign a notice of appeal on behalf of his client, it is necessary to examine the relevant rules of Court. Some care must, however, be taken in examining and construing these rules. They deal in terms with “barristers” and “solicitors”. However, these professions have since been fused by the significant amendments made to the Legal Practitioners Act, Chapter 4:01, by the Legal Practitioners (Amendment) Act 1980. The practical effect of section 2 and the Schedule of the latter Act is that all practising lawyers are now attorneys-at-law capable of performing any functions previously restricted to barristers or solicitors and wherever in the rules one sees “barrister” or “solicitor”, since 1980 one may safely substitute “attorney-at-law”.

9

One hopes that it will not be long before a thorough overhaul is made of the rules, not only to take account of the implications of that 1980 Act but also, in the light of this judgment, to rationalize the practice and procedure in the High Court and the Court of Appeal.

The High Court Rules
10

Sections 36 and 67 of the High Court Act (Cap 3:02) provide for rules to be made regulating pleading, practice and procedure in the High Court (of which the Land Court is part). Both the Act and the rules pre-date the Legal Practitioners (Amendment) Act 1980. The rules extend not only to the High Court but also to the division of the High Court known as The Full Court of the High Court, to which some appeals may be made under sections 79 and 81. Order 1 rule 2 provides: “These rules… shall apply in the Civil and Full Court Jurisdiction of the High Court”.

11

Order 1 rule 4 of the High Court Rules defines the terms “solicitor” and “solicitor on the record”. The former means “a solicitor or a barrister when acting as a solicitor”. The latter is defined as “the solicitor of or for a party, and includes, and shall be deemed always to have included, every solicitor named in the authority filed under Order 3 rule 8, Order 6 rule 5 or Order 10 rule 5”. Order 3 rule 6 requires a writ of summons to be prepared by the plaintiff or by his solicitor and by rule 8, if a solicitor is retained, that solicitor must produce an authority to act in writing signed by the plaintiff when presenting the writ. Order 5 rule 1 requires the solicitor to endorse on the writ and upon every notice in lieu of service of the writ, “the address of the plaintiff and also his own name and that of his firm and his place of business, and also a proper place to be called his address for service within one mile of the Registry…” This latter rule applies also to proceedings begun otherwise than by writ and notice of a writ: Order 5 rules 3 and 4.

12

Order 6 rule 1 of the High Court rules enjoins every solicitor who shall be engaged in any action to conduct the same, if so desired by the client, until the final determination whether in the court of first instance “or on appeal” about which more will be said in due course. A party is, however, permitted to change his or her solicitor upon filing notice of such change in the Registry but until this is filed and served on the opposite party, the former solicitor shall be considered the solicitor of the party unless the court otherwise directs: Order 6 rule 2. A solicitor is permitted to act for and on behalf of, or as agent for, another solicitor but if and when he does so, he shall state and shall add to his own name or firm or place of business the name and address of the solicitor on the record: Order 6 rule 5(4). The solicitor on the record remains responsible and liable for all acts and defaults of any solicitor acting for him or her: Order 6 rule 6.

13

Similar obligations are placed on solicitors appearing on behalf of defendants. A defendant enters an appearance to a writ of summons either personally or by a solicitor: Order 10 rule 4. The solicitor so appearing must produce his authority to act signed by the defendant: Order 10 rule 5. Rule 6 requires the solicitor appearing for a defendant to give his place of business and an address for service within one mile of the Registry. That address for service is important because, in keeping with Order 17 rule 12 for example, where the litigant acts by a solicitor, pleadings are delivered to the solicitor at that address. Service of an order for interrogatories or discovery or inspection made against a party shall be sufficient...

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