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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 168 of 2011

Claim No. CV 04309 of 2010

BETWEEN

COLONIAL LIFE INSURANCE

COMPANY (TRINIDAD) LIMITED

Appellant

AND

DARRYL ARTHUR GOEDE

NANCY LOUISE GOEDE

Respondents

Civil Appeal No. 169 of 2011

Claim No. CV 04378 of 2010

BETWEEN

COLONIAL LIFE INSURANCE

COMPANY (TRINIDAD) LIMITED

Appellant

AND

LESLEY-ANN LUCKY SAMAROO

Respondent

Civil Appeal No. 174 of 2011

Claim No. CV 02917 of 2010

BETWEEN

COLONIAL LIFE INSURANCE

COMPANY (TRINIDAD) LIMITED

Appellant

AND

ST CHRISTOPHER AND NEVIS SOCIAL

SECURITY BOARD

Respondent

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PANEL: N. Bereaux, J.A.

G. Smith, J.A.

J. Jones, J.A.

APPEARANCES:

Mr. R. Armour, S.C. and Mr. R. Nanga instructed by Ms. M. Ferdinand

for the Appellant.

Mr. M. Morgan instructed by Ms. D. Nieves for Darryl Arthur Goede and

Nancy Louise Goede.

Mr. S. Sharma for Lesley-Ann Lucky Samaroo.

Mr. E. Prescott, S.C. instructed by Ms. S. Sinanan for St. Christopher and

Nevis Social Security Board.

DATE DELIVERED: 26th July, 2016.

I have read the Judgment of Jones, J.A. and I agree with it.

N. Bereaux

Justice of Appeal

I too agree.

G. Smith

Justice of Appeal

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JUDGMENT

Delivered by J. Jones, J.A.

1. Before this Court is a consolidated appeal brought from a judgment given in seven

related actions. Of those seven appeals four have now been compromised. For

determination here are the appeals by Colonial Life Insurance Company (“CLICO”) in:

Civil Appeal No. 168 of 2011(“the Goede appeal”); Civil Appeal No. 169 of 2011(“the

Lucky-Samaroo appeal”) and Civil Appeal No. 174 of 2011(“the St. Christopher and

Nevis Social Security Board appeal”).

2. The appeal is from the judgment of the trial judge whereby she found for the

Respondents, the claimants before her, and ordered that CLICO pay to the Respondents

sums of money due on certain Executive Flexible Premium Annuity Plans (“the EFPA

agreements”) issued by CLICO to the Respondents. The claims were determined on

two preliminary issues crafted by the parties and placed before the judge by way of a

consent order in all six actions. In each action the consent order was entered into at the

case management stage.

3. Insofar as it is relevant to this appeal the consent order states:

“IT IS HEREBY ORDERED BY CONSENT

1. That pursuant to Part 26.1 of the Civil Proceedings Rules 1998 there

be a separate trial of the following issues of law:

(A) Whether the Defendant’s actions are the subject of a statutory

immunity by virtue of sections 3 and 44 H of the Central Bank

Act as amended.

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(B) Do the provisions of sections 134 and or 135 of the Insurance

Act apply to the EFPA agreements and without limiting the

generality of the foregoing what is the effect of section 134 of

the Insurance Act on the claimant’s power to surrender the

EFPA policy at any time. What is the effect of the Central

Bank’s purported instruction? In particular whether the effect

of the purported suspension of the obligation of the Defendants

to pay surrender values affects the entitlement of the Claimant

to judgment or only the entitlement to execute a judgment?

2. The Claimant(s) will be entitled to judgment if issues A and B are

determined against the Defendant.

3. If the Court determines issues A or B in favour of the Defendant,

the Claimant(s) reserves the right to have a full trial of the issues

arising on the pleadings that have not been adjudicated upon.”

4. In accordance with the consent order the parties placed before the court an agreed

statement of facts and admitted into evidence certain correspondence. This

correspondence included a letter dated the 21st February 2011 from the Central Bank of

Trinidad and Tobago (“the Central Bank”) to CLICO. No oral evidence was given in

support of the issues for determination and the action proceeded by way of oral and

written submissions.

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Background facts

5. Before dealing with the issues argued on the appeal it is necessary to set the stage by

identifying the factual background to the disputes as placed before the trial judge by

way of the pleadings and the agreed statement of facts filed in each of the actions.

6. During the period 2006 to 2008 the Respondents all entered into separate EFPA

agreements with CLICO. These agreements guaranteed the payment of interest on all

United States dollar (“USD”) deposits for two years at rates that varied between 7%

and 9% in the individual agreements. All the EFPA agreements provided however that

in the event of a surrender before a specified date, calculated to be two years from the

commencement of the EFPA agreement, interest would be payable at a rate of 2% per

annum. If maintained after the guaranteed period the agreements provided that each

deposit would attract interest at a rate to be declared by CLICO on the policy

anniversary.

7. Accordingly the following deposits were made with CLICO: on or about the 22nd

February 2008 the Goedes deposited the sum of USD 3,500,000.00; on the 12th

September 2007 Lucky-Samaroo deposited the sum of TTD 175,000.00 and on the 28th

September 20061 and the 1st September 2007 the St. Christopher and Nevis Social

Security Board deposited the sums of USD 1,411,581.61 and USD 1,166,402.00

respectively.

1 This EFPA agreement was renewed on the 28th September 2008 on the same terms and conditions

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8. CLICO ran into financial problems and, by virtue of legal notice No. 32 of 2009, the

Central Bank, exercising its powers under section 44D of the Central Bank Act Chap

79:02, assumed control of CLICO with effect from 13th February 2009. Thereafter by

legal notice No. 66 of 2009, made under the powers given to the Central Bank by

sections 44D, 44E and 44F (4) of the Central Bank Act and in furtherance of the powers

invoked by legal notice No. 32 of 2009, the Central Bank appointed the Inspector of

Financial Institutions to perform certain of its functions with respect to CLICO under

sections 44D and 44F of the Act with effect from the 26th March 2009.

9. With respect to each deposit the period of two years all fell between the years 2008 to

2010. Despite their demands for the return of their deposits together with the interest

accrued CLICO failed to make the requested payments to the Respondents. Insofar as

the Respondent, St. Christopher and Nevis Social Security Board, was concerned

CLICO requested time to make the payments. Insofar as the Respondent, Lucky-

Samaroo, was concerned there was no response from CLICO to her demand.

10. With respect to the Respondents, the Goedes, their demand was met by correspondence

that advised that the Government of Trinidad and Tobago had assumed control of

CLICO pursuant to section 44D of the Central Bank Act, that it had taken full

responsibility for the payment and administration of their policy and that no interest

would be paid on their policies.

11. The Goedes were also provided with copies of an email dated the 8th September 2010

from CLICO’s finance director and an undated document purporting to be an

“update/feedback” on CLICO’s positions with respect to payments on various of its

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products. In particular this document advised that a moratorium had been placed on all

transactions relating to CLICO’s short-term investment products including the EFPAs.

12. With respect to all of the demands for payment however the result was the same:

CLICO did not return the deposits nor make any interest payments on them to the

Respondents. Thereafter the Respondents commenced their individual actions.

The Judgment

13. The judge found against CLICO on both of the issues identified in the order and, in

accordance with the consent order, awarded the Respondents judgment in terms of their

individual claims.

14. In her judgment the judge dealt with issues A and B in reverse order. On issue B, the

application of sections 134 and 135 of the Insurance Act, the judge determined that the

right of a policyholder to surrender the EFPA policy pursuant to the terms of the

contract fell outside the operation of sections 134 and 135 of the Insurance Act.

Accordingly that issue was determined against CLICO. The judge also held that, having

regard to that finding, it was unnecessary to determine whether the purported

instruction of the Central Bank by letter dated 21st February 2011 affected the

entitlement of the Respondents to judgment or only to the entitlement to execute a

judgment.

15. Issue A dealt with CLICO’s claim to be entitled to a statutory immunity pursuant to

sections 3(4) and 44H of the Central Bank Act. These sections provided an immunity

with respect to anything done or omitted to be done in the discharge or purported

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discharge of the functions of the Bank unless it was shown that the act or omission was

reckless or in bad faith. The persons covered by the statutory immunity were, under

section 3(4), the Bank, a director, an officer, an employee or any person acting on behalf

of the Bank and, in the case of section 44H, the State, the Minister, the Bank, its

directors and officers and any person acting on behalf of the Bank or appointed by the

Bank pursuant to section 44D.

16. On issue A the judge was of the view that, to succeed, CLICO would have to show that

the letters of the 14th and 21st February 2011 and its position that the obligation to pay

cash surrender values had been suspended under section 135 were acts done in the

discharge or purported discharge of the functions of the Central Bank under Part VA of

the Central Bank Act. The judge found that there was nothing on which CLICO could

rely to discharge that burden either on the pleadings or in the evidence placed before

her. CLICO’s claim for a statutory immunity therefore failed and accordingly that issue

was determined against CLICO. In accordance with the terms of the consent order

therefore the Respondents were entitled to judgment.

The issues for determination on the appeal

17. The appeal was pursued by attorneys other than those who appeared for CLICO at the

trial. By way of an amended notice of appeal filed in each of the claims CLICO

appealed the decision of the trial judge on both issues and her order for the payment of

interest at the rate specified in each of the contracts.

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18. The grounds of appeal and the arguments presented by CLICO in each appeal are more

or less the same. In support of the appeal CLICO filed three written submissions on: 1st

June 2012, 29th June 2015 and 30th July 2015 and a speaking note dated 14th May 2014.

19. By its written submissions, confirmed at the hearing of the appeal, CLICO abandoned

the challenge to the statutory immunity issue. The judge’s findings on that issue

therefore remain intact. Also abandoned by CLICO at the hearing were the arguments

contained in its submissions of 1st June save insofar as those arguments dealt with the

award of interest by the judge. These submissions, in the main, were directed to grounds

of appeal no longer being pursued by CLICO.

20. The result of this was that the appeal was limited to one main ground which ground

was formulated as follows:

“In error the trial judge failed to construe the Central Bank’s

decision to suspend the obligation of the Defendant to pay and

the right of the Claimant to receive the cash surrender value of

the EFPA as effected pursuant to section 44D (i) of the Central

Bank Act as amended.”

and the award of interest by the judge.

21. Also for our determination at the hearing was an application by the Respondents,

Goedes and Lucky-Samaroo, to strike out a supplemental record of appeal filed by

CLICO on the 13th May 2014. This supplemental record contained two letters dated 6th

and 7th September 2011. Given the nature of CLICO’s arguments on the appeal, after

hearing arguments on the application, we determined that the documents be allowed in

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de bene esse pending a ruling on their admissibility on the determination of the appeal.

Our findings on the substantial appeal render it now unnecessary for us to make a

determination on this application.

The Appeal

22. It is to this main ground of appeal that the letters of 6th and 7th September 2011

(collectively referred to as “the further evidence”) are relevant. This is not an argument

that was ventilated before the trial judge. This is not surprising since the theme

underlying CLICO’s submissions on this appeal was that the judge was led astray by

the positions taken by its previous attorneys.

23. Before considering the merits of this new argument we must first determine whether

this is an argument that CLICO can now raise for the first time on appeal. For our

consideration, therefore, are the circumstances under which a party is permitted to raise

a new argument in the court of appeal and whether, in the circumstances of this case,

CLICO ought to be allowed to do so.

24. Traditionally courts of appeal are reluctant to allow arguments not ventilated before the

trial court to be raised on appeal. Zuckerman2 treats this limitation as an aspect of the

general principle of the finality of litigation. “[P]arties who are involved in litigation

are expected to put before the court all the issues relevant to that litigation. If they do

not, they will not normally be permitted to have a second bite at the cherry.”3

2 Zuckerman on Civil Procedure Principles of Practice, second edition, page 899 para23.199 3 Taylor v Lawrence [2002] EWCA 90 at paragraph 6.

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25. More generally the consideration is one of fairness. “A point of law not raised or

canvased at the trial is not, as a general rule, allowed to be opened on the appeal;” per

Bernard JA in the case of Burroughs and another v Rampargat Katwaroo (1985)

40 WIR 287. In that case Bernard JA was of the opinion that to do so would be

inherently wrong, would work an injustice to the respondent and would be unfair to the

trial judge.4

26. In 2011 the position on new arguments raised for the first time on appeal was clearly

and succinctly stated by Mendonca JA in the case of Diamondtex Style Limited v

National Union of Government and Federated Workers CA No 59 of 2008. After

reviewing the authorities on the point Mendonca JA stated:

“This Court has a discretion whether to allow a new point or a point

conceded in the Court below to be argued on appeal. It is a discretion

which it will only exercise in exceptional circumstances and as a

general rule it will not permit the point to be argued unless it is in

possession of all the material necessary to enable it to dispose of the

matter finally, without prejudice to the other party, and without

recourse to a further hearing below.”5

27. CLICO has not pointed to any exceptional circumstances that will allow it to raise this

new argument. Further it is clear that the new argument is not purely one of law but

rather hinges on the admission of the further evidence sought to be placed before us by

CLICO. This is evidence that the Respondents have not had the opportunity to consider

4 At page 294 of the judgment???? 5 At paragraph 20

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or to rebut by way of evidence. In the circumstances it is doubtful whether, sitting as a

court of appeal, we would be in possession of all the relevant material.

28. In answer to this CLICO seeks refuge in section 39(1) of the Supreme Court of

Judicature Act. Section 39(1) provides:

(1) On the hearing of an appeal from any order of the High Court in any

civil cause or matter, the Court of Appeal shall have the power to –

(a) confirm, vary, amend, or set aside the order or make any such

order as the Court from whose order the appeal is brought might

have made, or to make any order which ought to have been made,

and to make such further or other order as the nature of the case

may require;

(b) draw inferences of fact;

(c) direct the Court from whose order the appeal is brought to enquire

into and certify its finding on any question which the Court of

Appeal thinks fit to be determined before final judgment in the

appeal.

29. In its submissions before us CLICO makes reference to section 39(1)(b) of the Supreme

Court of Judicature Act. From the substance of its submissions, however, it is clear that

the reference ought to have been to section 39(1)(c). In its arguments before us therefore

the position eventually taken by CLICO is not for a determination by us on the effect

of the further evidence or the merits of its ground of appeal but rather it requests that

we consider the further evidence and, if determined to be relevant, send the matter back

to the High Court for its determination.

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30. The question is whether this is an argument that ought or could have been raised before

the trial judge. While section 39(1)(c) of the Supreme Court of Judicature Act gives the

court of appeal a wide discretion this discretion must be exercised within the context of

the rules of court, in this case the Civil Proceedings Rules (1998) as amended (“the

CPR”), and the existing law. If therefore the argument could not have been taken before

the trial judge then to allow CLICO to do so now under the guise of section 39(1)(c)

would be, in our view, a wrongful exercise of our jurisdiction.

31. The arguments in support of the ground of appeal are perhaps most neatly stated in

CLICO’s speaking note. The submission revolves around issue B. According to the

submission:

“the correct legal conclusion (which the judge failed to arrive at) is

that by operation of law (a) the Bank’s Special Emergency Powers

having been duly invoked, at all material times the Appellant was

under the control of the Bank; (b) the effect of the exercise of the

Bank’s instruction under those Special Emergency Powers trumped

any purported exercise/operation of the section 135 power under the

Insurance Act, with the consequence that (c) payment to the

Claimants/Respondents under the EFPA policies was suspended by

operation of law consequent on the Bank’s notification of the

Appellant of the section 44F(5) special direction (the moratorium)

received from the Minister Finance.”

32. It is clear therefore that, in seeking to pursue this argument, CLICO was no longer

relying on the effect of sections 134 and 135 of the Insurance Act but rather on the

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existence of a moratorium. The basis of CLICO’s argument is that the judge was

required to consider the effect of the Central Bank’s purported instruction. Such a

consideration required the judge to consider the letter of the 21st February 2011 and, in

doing so, ought to have had recourse to the further evidence. Recourse to the further

evidence ought to have led the judge to the legal conclusion referred to above.

33. The issues for the judge’s determination and the evidence to be considered in order to

make such determination were clearly set out in the consent order. The relevant issue,

issue B, required the judge to determine: (a) whether sections 134 and/or 135 of the

Insurance Act applied to the EFPA agreements; (b) the effect of section 134 of the

Insurance Act on the Respondents’ power to surrender the EFPA policy at anytime; (c)

the effect of the Central Bank’s purported instruction and (d) in particular whether the

effect of the purported suspension of the obligation of CLICO to pay the surrender

values affects the entitlement of the Respondents to judgment or only to the entitlement

to execute a judgment.

34. The consent order provided the judge with agreed facts and identified documents for

the judge’s use. Those documents deemed relevant, and not contained in the agreed

facts, were placed before the judge by an agreed bundle of documents. Neither the

agreed bundle of documents nor the agreed facts included the further evidence.

35. The judge found that the provisions of sections 134 and 135 did not apply to the EFPA

agreements. Thereafter the judge concluded that, in the circumstances of the sections

not being applicable, she “did not think it necessary to determine whether the purported

instruction of the Central Bank by letter dated the 21st February 2011 effected the

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entitlement of the Claimants to judgment or only to the entitlement to execute the

judgment.”

36. In arriving at this position therefore the judge was of the opinion that: (a) the main

question for her determination was the applicability of sections 134 and 135 to the

policies; (b) once it was determined that the sections did not apply then it was not

necessary to consider the other questions posed; and (c) the relevant instruction was

that contained in the letter of 21st February 2011.

37. With respect to her conclusions as to the applicability of the sections CLICO has

abandoned any challenge to that finding. With respect to her conclusion as to what

comprised the instructions from the Central Bank the judge cannot be faulted. The letter

of the 21st February 2011 was the only document placed before her by the parties that

contained any instruction from the Central Bank. Further the judge’s finding that it was

no longer necessary to consider whether the instruction contained in that letter effected

the entitlement of the Respondents to judgment or only to the entitlement to execute

the judgment has not been challenged.

38. CLICO’s position in this regard, however, is that since the letter of the 21st referred to

the further evidence then the judge ought to have called for the further evidence.

According to CLICO a proper perusal of that evidence would have revealed that the

Central Bank had already complied with the Minister’s directive in 2010 and instructed

it to impose a moratorium on all EFPA payments as of September 2010 until further

notice. The admission of the further evidence would thereby have required the judge to

consider the effect of the moratorium.

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39. The argument presented has two major flaws. The first is that this was clearly not one

of the issues fixed by the consent order for the judge’s determination. It was the parties

who identified, by way of this order, the preliminary issues for the judge’s

determination and the evidence relevant to such determination. From its terms it is clear

that the further evidence was not considered by the parties to be relevant to the issues

that they had set for determination. Further the order specifically provided that a finding

in favor of the Respondents on the two issues would result in judgment for the

Respondents on their claims.

40. In treating with the effect of the consent order of relevance are the English cases of

Ropac Limited v Inntrepreneur Pub Co (CPC) Ltd [2001] L&TR 93 and Pannone

LLP v Aardvark Digital Ltd [2011] 1 WLR 2275. Both of these cases dealt with an

application for an extension of time from an order made by consent. The applicable

rules of court in both cases was the English equivalent to the CPR. The overriding

objective was therefore a consideration in both cases.

41. The outcome in each case was however different. In Ropac the judge, Neuberger J, was

of the view that he ought not to interfere with the agreement made by the parties. In

Pannone, a decision of the Court of Appeal, the court was of the opinion that it was

open to them to extend the time for compliance.

42. The distinction between the two cases is set out in the decision of Tomlinson LJ in

Pannone. In delivering the main judgment of the court Tomlinson LJ accepted and

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approved the following statement of Neuberger J. in Ropac:

“Where the parties have agreed in clear terms to extend time, the

court should, when considering an application to extend time, place

very great weight on what the parties have agreed and should be

slow, save in unusual circumstances, to depart from what the parties

have agreed.”6

43. He then goes on to identify the distinguishing feature between the two cases. According

to Tomlinson LJ:

“Neuberger J did not in fact extend the time, primarily because it

was accepted by the landlord that the tenant was entitled to pay all

the rent due and owing. Of course the relationship of landlord and

tenant brings into play special considerations, but I would for my

part point out that the consent order there under consideration

represented the compromise of a substantial dispute, not an agreed

modus vivendi in relation to a case management decision in

preparation for trial.”7

44. Later in the judgment he goes on to say:

“In my view the weight to be given to the consideration that an order

is agreed will vary according to the nature of the order and thus the

agreement. Where the agreement is the compromise of a substantive

dispute or the settlement of proceedings, that factor will have very

great and perhaps ordinarily decisive weight, as it did in Western v

6 paragraph 31 of Ropac and paragraph 29 page 2286 in Pannone. 7 Page 2286 paragraph 30

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Dayman [2008] 1 BCLC 250, which was not in any event concerned

with the application to extend time. Where however the agreement

is no more than procedural accommodation in relation to case

management, the weight to be accorded to the fact of the parties’

agreement as to the consequences of non-compliance while still real

and substantial will nonetheless ordinarily be correspondingly less,

and rarely decisive. Everything must depend on the

circumstances……..”8

45. We agree with the statements of Tomlinson LJ. In the case before us the consent order

was not simply a case management order, as described by CLICO, or a procedural

accommodation in relation to case management as in the Pannone case. Rather it was

an order made by the parties in compromise of a substantial dispute, albeit, one made

during the case management process. An examination of the pleadings in all three cases

reveal that issues other than those identified in the consent order had been raised. For

example there was issue of whether there was in fact a surrender or did the EFPA’s

expire by effluxion of time raised by the St. Christopher and Nevis Social Security

Board. All three respondents also raised the issue of whether the EFPAs were annuities

and/or policies within the purview of the Insurance Act or merely term deposits.

46. By virtue of the consent order these, and other issues, were no longer to be ventilated.

Indeed in her judgment the judge herself recognized that there were aspects of the cases

as pleaded that went beyond the issues set for preliminary determination. This position

is confirmed by the terms of the consent order which reserved the right to the

8 Page 2287 paragraph 33

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Respondents to have a full trial of the issues arising on the pleadings not adjudicated

upon should the judge determine issues A or B in favor of CLICO. In the circumstances

a court, and especially a court of appeal, would be loath to depart from the agreement

made between the parties.

47. Nothing in the submissions made by CLICO suggests any unusual circumstances that

will prompt a court to depart from the agreement made by the parties and embodied in

the consent order. Further the issues identified, as preliminary issues for determination

must be considered against the background of the pleadings. This brings us to the

second flaw in CLICO’s argument. This was not an issue raised in the pleadings as an

issue for determination between the parties.

48. In each of the amended defences filed by CLICO the only reference to section 44D of

the Central Bank Act is either as a historical fact or in the context of the plea of statutory

immunity. This is the plea that forms the basis of issue A and which was struck down

by the judge and from which there has been no appeal.

49. We do not think that, as submitted by CLICO, the overriding objective assists it. The

effect of acceding to the submissions of CLICO would be to permit it to adduce a

completely new case, one that has not been raised on the pleadings and one which is in

direct conflict with the terms of the compromise made between the parties. This cannot

be in keeping with the requirement that the court deal with the case justly. We are

satisfied therefore that this is not an argument that CLICO can be allowed to raise on

appeal. Neither, for the reasons adduced, is it proper to direct the court, from whose

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order the appeal is brought, to enquire into and certify it’s finding on this new question.

To do so will be allowing CLICO a second bite of the cherry.

50. This therefore leaves CLICO with one viable ground of appeal that: in error the judge

directed that the sums due to Respondents attract interest at 12% a rate over and above

the contractual rate set out in the EFPA policy document and over and above the rate

of 2% simple interest once the EFPA policy is surrendered.

51. The appeal treats solely with the rate of interest awarded. There has been no challenge

to the dates from which interest was ordered to run. In fact the judge did not award

interest at the rate of 12% per annum. CLICO submits however that an award of pre-

judgment interest at a rate above 2% per annum, the rate of interest agreed to be payable

upon surrender, was wrong.

52. With respect to interest the judge’s award was as follows: the Goedes: interest at a rate

of 8% per annum from 23rd October 2010; Lucky-Samaroo: interest at a rate of 7% from

12th September 2009; and the St. Christopher and Nevis Social Security Board: interest

at the rate of 9% per annum on the first deposit and at the rate of 8% per annum on the

second deposit from the 13th July 2010.

53. Each EFPA agreement guaranteed a payment of interest at a rate in excess of 2% for two

years from the date of the deposit. That guaranteed rate of interest however varied

among the agreements. In the event of a surrender, however, on or before a specific

date two years after commencement, each agreement provided that all interest, whether

disbursed or not, would be recalculated at 2% and the surrender value adjusted

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accordingly. If not surrendered before the specified date, each contract provided that,

after the first two years the applicable interest rates would be declared by CLICO on

the anniversary of each policy.

54. In the Goedes’ EFPA the specified date was the 21st February 2010 and the guaranteed

rate of interest 8% per annum. Lucky-Samaroo’s specified date was 11th September

2009 and the guaranteed rate 7% per annum. The St. Christopher and Nevis Social

Security Board’s specified dates were 27th September 2008 on the first deposit and 31st

August 2009 on the second deposit and the guaranteed rates 9% and 8% respectively.

55. An award of interest, before judgment, is in the discretion of the judge. Pursuant to

section 25 of the Supreme Court of Judicature Act a court has the discretion to award

interest for the period between the accrual of the cause of action and the date of

judgment. Section 25 (b) of the Act however provides that this discretion shall not apply

in relation to any debt upon which interest is payable as of right by virtue of any

agreement.

56. The judge gave no reasons for her award of interest. It would seem however that she

awarded interest at the guaranteed rates, that is, the rates that applied if not surrendered

before the specified date. In the absence of her giving any reasons for the exercise of

her discretion we are entitled to look at the matter afresh and come to our own

conclusion as to how the discretion ought to be exercised: Romauld James v The

Attorney- General Civ. App No 154 of 2006.

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57. In no case was the EFPA surrendered before the date specified in each agreement. In

these circumstances the EFPAs, not having been so surrendered, the rate of 2% was not

the applicable rate at the time. According to the contract after the guaranteed period of

two years interest would have been payable at a rate to be declared by CLICO at the

policy anniversary. There is no evidence that CLICO declared any interest rates in

accordance with that condition. In the absence of such a declaration therefore the award

of interest for periods after the guaranteed two year period is in our discretion in

accordance with section 25 of the Supreme Court of Judicature Act.

58. A consideration of the interest rates awarded by this court for special damages reveal

that the usual award of interest over that period was 6% per annum: see Winston

Barrow v The National Insurance Board of Trinidad and Tobago Civil Appeal 59

of 2011; Kurlene Pierre v Miles Almandoz and Company Civil Appeal 2 of 2012.

We think that such a rate is reasonable in the circumstances.

59. Accordingly the appeal is allowed insofar as the judge’s orders on the rate of interest is

concerned and interest at a rate of 6% per annum substituted across the board in all of

the appeals. The orders of the trial judge on all the other aspects are affirmed. We will

hear the parties on costs.

J. Jones

Justice of Appeal