Keith O’Connor v (1) Paul Haufman Percival Piccott (2) Eugene Adolphus Piccott (Jamaica)

When an appellate court reviews a decision made before new procedural rules came into force, the later rules do not retrospectively make the earlier decision wrong. In deciding the order to make for the future, however, the court must consider the overriding objective of dealing with cases justly. That requires attention not only to procedural default but also to the rights of affected third parties and the practical workability of the proposed relief. A specific-performance order should not be maintained where a non-party has competing contractual claims and the order is unworkable and likely to cause further litigation. The practical course may be to join all contesting parties in one action.

The respondents sought specific performance from the appellant of an agreement to purchase a flat. No defence was filed, and Ellis J entered an order for specific performance in default. Cooke J refused to set it aside, treating it as a judgment on the merits. The Court of Appeal of Jamaica corrected that characterisation, but dismissed the appeal under the Civil Procedure Rules and the overriding objective, stressing deliberate procedural default.

Before the Board, the appellant relied on the former Civil Procedure Code, the transition to the CPR, and the competing contractual and payment interests of a third-party purchaser. The central issues were the proper appellate approach to a pre-CPR decision and whether specific performance could stand without determining all competing rights.

Appeal allowed. The Board set aside the order of Ellis J dated 21 May 1998. The parties were invited to make written submissions on costs within 14 days.

1. Applicable procedural approach. The Board proceeded on the common basis that Ellis J’s order was a default judgment. It accepted the approach stated in McPhilemy v. Times Newspapers Ltd [1999] 3 All ER 775: later procedural rules do not make an earlier decision wrong merely because the appeal is heard after the rules came into force. The appellate court must nevertheless consider the later rules when deciding what order should be made for the future.
2. Overriding objective. Whether the matter was approached under section 258 of the Civil Procedure Code or rule 1.2 of the Civil Procedure Rules, the Court of Appeal was required to have regard to the overriding objective of dealing with cases justly. It focused exclusively on the appellant’s procedural failures and failed to give sufficient weight to the wider circumstances.
3. Third-party rights and practical workability. Ms Hines had competing contractual interests in Flat 3 and had paid substantial sums to both sides. The Court of Appeal failed to consider those interests. Given the litigation history and the terms of Harrison J’s order, specific performance in favour of the respondents was unworkable in practice and risked further litigation.
4. Further proceedings. The only practicable way to resolve the dispute was for the appellant, the respondents and Ms Hines to be joined in a single action in which all issues could be litigated to judgment. The Board could not give procedural directions affecting Ms Hines because she was not a party to the appeal.

1. Privy Council. Allowed the appeal and set aside Ellis J’s order for specific performance. The Board considered that all competing interests should be resolved in a single action.
2. Court of Appeal of Jamaica. On 7 April 2006, dismissed the appellant’s appeal. It held that Ellis J’s order was a default judgment, but declined to set it aside under the Civil Procedure Rules and the overriding objective.
3. Supreme Court of Judicature of Jamaica. Ellis J ordered specific performance on 21 May 1998. Cooke J dismissed the appellant’s application to set that order aside on 22 March 2001, treating it as a judgment on the merits.