Thompson v Thompson

• Jurisdiction: Cayman Islands
• Judge: (Zacca, Ag. P., Kerr and Rowe, JJ.A.)
• Judgment Date: 12 August 1980
• Date: 12 August 1980
• Court: Court of Appeal (Cayman Islands)

Court of Appeal

(Zacca, Ag. P., Kerr and Rowe, JJ.A.)

G. THOMPSON

and

E.E. THOMPSON

C.C. Adams for the appellant;

R.D. Alberga, Q.C. and J. Stafford for the respondent.

Cases cited:

(1) Allen v. McAlpine (Sir Alfred) & Sons Ltd., [1968] 2 Q.B. 229; [1968] 1 All E.R. 543.

(2) City Printery Ltd. v. Gleaner Co. Ltd.UNK(1968), 10 J.L.R. 506; 13 W.I.R. 126, applied.

(3) Debtor, No. 472 of 1950, In re A, ex p. Swirsky, [1958] 1 W.L.R. 283; [1958] 1 All E.R. 581, distinguished.

(4) Ratnam v. Cumarasamy, [1965] 1 W.L.R. 8; [1964] 3 All E.R. 933, applied.

(5) Revici v. Prentice Hall Inc., [1969] 1 W.L.R. 157; [1969] 1 All E.R. 772, applied.

(6) Waller v. Omega Bay Estates Ltdl, Court of Appeal, Civil App. No. 14 of 1977, July 19th, 1978, unreported, considered.

Legislation construed:

Court of Appeal Law, (Law 9 of 1975), s.21: The relevant terms of this section are set out at page 65, lines 27–31.

Court of Appeal Rules, 1962 (G.N. No. 278 of 1962), r.9(3), as substituted by the Court of Appeal (Amendment) Rules, 1977 (G.N. No. 98 of 1977), r.2: The relevant terms of this rule are set out at page 65, lines 35–39.

Civil Procedure-appeals-enlargement of time for appeal-court not to allow enlargement under Court of Appeal Law, s.21 unless evidence of prior intention to appeal and satisfactory explanation of delay

The appellant applied by way of motion for leave of the court to file a notice of appeal out of time.

The appellant had brought a series of actions in relation to property in which she had lived with her husband for about 25 years, claiming at first joint ownership of the property. This claim was disallowed by the Land Adjudicator and the appeal against his decision was dismissed in 1979. Pending the hearing of this appeal, the appellant instituted further actions claiming an interest in the property including the action, decided in favour of the respondent on September 21st, 1977, and from which she now sought leave to appeal.

The appellant submitted that although r.13 of the Court of Appeal Rules, 1962 entitled her only to six weeks within which to lodge notice of an appeal, by s.21 of the Court of Appeal Law, the court had power to extend this time. She submitted two affidavits from her attorney relating to the year commencing June 1979.

The respondent submitted in reply that although the court did have a discretion to do so, by r.9(3) of the Rules, any non-compliance with the Rules had to be satisfactorily explained and neither affidavit from the appellant”s attorney had attempted to do so, nor was there any evidence of a previous intention to appeal.

Held, dismissing the application:

The appellant had failed to provide any satisfactory explanation for her inordinate delay in seeking to appeal either through the affidavits of her attorney or by demonstrating a prior intention to appeal which had been in some way obstructed. The court would therefore not exercise its discretion in her favour and extend the time for giving notice of appeal (page 66, lines 22–25; page 68, lines 4–10).

ZACCA, Ag. P.: On June 24th we refused this application and
promised to put our reasons in writing. This we now do.
This is an application by the plaintiff seeking leave of the court
to file a notice of appeal notwithstanding that the time limited by
20	the rules of the court for appealing had expired. The notice of
motion seeking the extension of time was filed on June 18th,
1980. The judgment of the Grand Court from which the appellant
is seeking leave to appeal was given on September 21st, 1977.
The appellant and Norman Thompson were married and lived
25	together for about 25 years. In May 1973 they were living separ-
ate and apart. Norman Thompson died on August 22nd, 1978.
The appellant has been contending that she is entitled to an
interest in the house in which she had lived with her husband. It is
necessary to set out the history of the proceedings which

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