The Tribune

By RASHAD ROLLE

Tribune Senior Reporter

rrolle@tribunemedia.net

THE Court of Appeal has rejected the government’s effort to appeal orders involving a Jamaican seeking $27m in damages for false imprisonment before the Supreme Court judge hearing the matter issues her final ruling.

Supreme Court Justice Ruth Bowe-Darville ruled in Matthew Sewell’s favour last September.

Arrested at 18 in 2006 after being accused of raping a six-year-old, Mr Sewell spent nine years being imprisoned and detained intermittently without facing criminal charges.

Represented by Fred Smith, QC, he sued the government for damages related to false imprisonment, assault and battery, malicious prosecution, arbitrary and unlawful detention and breaches of his fundamental rights under the constitution.

Justice Bowe-Darville struck out government lawyers’ defence on August 19, 2020, crippling their case because they failed to comply with her discovery orders.

“The chronology of the file shows that the defendants delayed from inception,” she wrote in a judgment. “The file shows no further action by the defendants from the filing of the defence. This history of non-compliance is unacceptable.”

In a written ruling delivered by Sir Michael Barnett yesterday, the Court of Appeal noted that government lawyers did not appeal Justice Bowe-Darville’s order within 14 days after she made it, “notwithstanding that the effect of the ruling was to leave the intended appellants without a pleaded defence. The effect of the absence of a pleaded defence was that pursuant to Order 18 rule 12 the facts alleged in the statement of claim are deemed to be admitted.”

Justice Bowe Darville ruled in favour of Mr Sewell on September 7, 2020.

She scheduled an October 28, 2020 hearing to assess damages. Two days prior to that date, government lawyers filed a notice of appeal. They have since also filed an application for the extension of time within which to appeal the judge’s two orders.

The Court of Appeal said that because Justice Bowe Darville’s rulings are interlocutory orders, an appeal requires leave of her court.

“The intended appellants had two weeks to appeal each order,” the Court of Appeal wrote. “They are clearly out of time. They now seek leave to appeal out of time. The problem is that they have not sought, much less obtained, the leave of the trial judge to appeal these interlocutory orders.

“There would be no basis for this court to extend the time unless and until the court below grants them leave to appeal those interlocutory orders.

“As no leave to appeal has been obtained, we are unable to accede to the intended appellants’ request to extend the period of time to appeal. There is no basis for us to dispense with the requirement to satisfy the rule requiring the prior leave of the court below,” the Court of Appeal added.

“If the intended appellants obtain the leave to appeal these two interlocutory orders (notwithstanding that the assessment of damages has already taken place) then they are at liberty to apply for an extension of time. But unless and until that has been done, there is no basis for us to grant the application for an extension of time.”

The Court of Appeal’s ruling does not close the door to the government’s hopes in the case––an appeal could still be launched after Justice Bowe-Darville releases her final order in the case.