Gianni Ascani v Duncanson & Company (Beryn Duncanson dba)

• Jurisdiction: Turks and Caicos Islands
• Judge: Lalbeharry, J.
• Judgment Date: 21 January 2025
• Court: Supreme Court (Turks and Caicos)
• Year: 2025
• Docket Number: Suit No.: CL 38/24

Gianni Ascani

and

Duncanson & Co. (Beryn Duncanson dba)

Lalbeharry, J.

Suit No.: CL 38/24

Supreme Court

Cases

Resolution Chemicals Ltd. v. H. Lundbeck A/S [2013] EWCA Civ 1515.

Porter v. Magill [2002] 2 AC 357

Helow v. Sec of State (sic) for the Home Department [2008] UKHL 62

Duncanson & Co. (Beryn Duncanson dba) v. East Wind Development Company Ltd. and Ors. (CL-AP 08, 13, and 14/2023) [2024] TCACA 12 (5 August 2024),

Duncanson & Co (Beryn Duncanson DBA) v. East Wind Development Company Ltd. and ors (2) Beryn Duncanson (Duncanson & Co DBA) v. The Registrar of Lands and ors. (CL-AP 8/23; CL-AP 13/23 [2023] TCACA 13 (27 October 2023) CL-AP 8,13 & 14/23

Duncanson & Co. (Beryn Duncanson DBA) v. East Wind Development Company Ltd. and Ors.;

Beryn Duncanson (DBA Duncanson & Co.) v. The Registrar of Lands and Anor. (CL 150 of 2022; CL 97 of 2022) [2023] TCASC 54 (11 April 2023)

Re JRL ex p CJL (1986) CLR 342

Locabail (UK) Ltd. v. Bayfield Properties Ltd. [2000] QB 451

Mr. Ashley Dobbs v. Triodos Bank NV [2005] EWCA Civ 468

Otkritie International Investment Management Ltd. v. Urumov [2014] EWCA Civ 1315,

Wilmot Perkins v. Noel B Irving [1997] 34 J.L.R 396.

Barry Hansen and other v. Vincent Warner and others Civil appeal No. 22 of 2001

RBTT Trust v. Flowers [2012] 80 WIR 139, approving Helow v. Secretary of State for the Home Department and another [2008] UKHL 62

Terrance Wade (as the sole executor of the late William Anthony Tuitt) v. James Weekes Case No. MNIHCV2017/0037, 28 March 2018

O'Neill v. Her Majesty's Advocate No. 2 (Scotland) 2013 UKSC 36,

President of the Republic of South Africa v. South African Rugby Football Union 1999 (4) SA 147, 177

Re L-B (2011) 1 FLR

Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700

Save Guana Cay Reef Assn Ltd. and Ors v. R and Ors [2010] 2 LRC 530,

Renraw Investments Ltd. and Ors v. Real Time Systems Ltd. (Trinidad and Tobago) 2023 UKPC 39

Attorney General of Trinidad and Tobago v. Dr. Wayne Kublalsingh Civ App No. P018 of 2014

Lieuwe Hoekstra v. Her Majesty's Advocate 2000 SCCR 367

Appearances:

Mr. Beryn Duncanson in person

Mr. Conrad Griffiths KC for the Plaintiff

RECUSAL DECISION

BACKGROUND

1 By Originating Summons filed on 28th March 2024 the Plaintiff sought reliefs against the Defendant including:

“An Order that the statutory demand dated 13th September 2023 and purported to have been served by the Defendant at an address in Providenciales on about 12th March 2024 (the Statutory Demand) be set aside on the grounds that:

(i) Under 157(1)(a) of the Insolvency Ordinance 2017 (the IO 2017) there is a substantial dispute as to whether the debt claimed under the Statutory Demand is due and owing by the Plaintiff to the Defendant, namely, that there is in fact no debt due at all, the same alleged debt is already the subject of a disputed claim in Action CL 151/22, the debt in the Statutory Demand is clearly statute barred under the Limitation of Actions Ordinance 2021, and the Statutory Deman is thereby wilful abuse of process coming nearly 12 months after the issuance of the proceedings under Action 151/22 and/or….”

2 By Order dated 24th May 2024 of Agyemang CJ, the statutory demand was set aside with costs to the Plaintiff to be taxed.

3 The Plaintiff filed a Bill of Cost for taxation on the 2nd October 2024.

4 The Taxation was listed before me as the Registrar and sole taxing officer for hearing on 8th November 2024.

5 On 7th November 2024 the day before the scheduled taxation hearing, the Defendant filed a Motion for Recusal (the Motion) against me. The Motion was not supported by an affidavit. For clarity the Motion is set out below:

Take notice that the Supreme Court will be moved before the Registrar Mr. Narendra Lalbeharry at Court Chambers (or via remote Internet access) at the Supreme Court Leeward Hwy. Providenciales on the 7th day of November 2024 at 10:00 am or so soon thereafter as Counsel may be heard on behalf of the above-named applicant plaintiff (sic) on the hearing of an application by the Applicant under s. 21 of the Turks and Caicos Islands Constitution (2011) that certain provisions of section 6(8),7 and 19 thereof have been and are being contravened in relation to him and his lawyer (sic) and that this honorable court do grant the following RELIEF namely

• 1. That the named Registrar Mr. Narendra Lalbeharry do give immediate disclosure to all the parties, in writing ahead of any recusal hearing of all the full details of his history with and relations to those persons natural and or corporate and organisations identified within the subject affidavits in the subject appeals and in comportment with binding precedent within this territory all of which precedent stems from the hallmark UK case of In the Matter of Resolution Chemicals Ltd. v. H. Lundbeck A/S [2013] EWCA Civ 1515

• 2. That the named Registrar do hereby recuse himself from these matters — both as to CL-38/24 and also its related main action CL-151/ of 2022 and generally on all matters involving this Plaintiff and all such matters personally involving or being represented by Attorney Beryn Duncanson

• 3. That the costs of this application be costs to the applicant should the opposing parties resist the recusal or otherwise in the cause.

6 At the taxation hearing on 8th November 2024 the applicant pointed out that a Motion for recusal was filed and that I was required to give immediate disclosure in relation to my “history with and relations to those persons natural/and or corporate and organizations identified within the subject affidavits”, however, no affidavits were filed by the Applicant. I gave directions for the filing of skeleton arguments and encouraged the Applicant to file an affidavit as required.

7 The Applicant filed an affidavit in support on the 15th of November 2024, which said affidavit exhibited other affidavits. The crux of the matters deposed in the affidavit relate to the performance of my functions as Registrar and allege as follows;

I have no objection to providing the requested statement. I now address each of the matters raised by Mr. Duncanson as mentioned above.

• a. That I have failed to stamp/file documents in a timely manner and that I continue to omit listing critical applications such as a Motion for Conditional Leave to appeal to the Privy Council;

• b. That I refused to accept service of an Originating Motion suing a Judge of the Supreme Court;

• c. That by action no. 69 of 2023, I was sued in my capacity Registrar Supreme Court and Court of Appeal, together with Justice Anthony Gruchot in his personal and official capacity, The Registrar of Lands and the Attorney General. In that action brought by Originating Motion the Applicant alleges I refused to file a document titled, Notice of Intention to Appeal and Notice to Appeal.

• d. That I ought to act pursuant to a precedent set by Justice Simmons and Justice Gruchot when similar applications for recusal was made by the same Applicant (Mr. Duncanson); they both provided statements in response to the recusal applications.

STATEMENT ON RECUSAL

THAT THE NAMED REGISTRAR MR. NARENDRA LALBEHARRY DO GIVE IMMEDIATE DISCLOSURE TO ALL THE PARTIES, IN WRITING AHEAD OF ANY RECUSAL HEARING OF ALL THE FULL DETAILS OF HIS HISTORY WITH AND RELATIONS TO THOSE PERSONS NATURAL AND OR CORPORATE AND ORGANISATIONS IDENTIFIED WITHIN THE SUBJECT AFFIDAVITS IN THE SUBJECT APPEALS AND IN COMPORTMENT WITH BINDING PRECEDENT WITHIN THIS TERRITORY

8 Whilst not clear which relations Mr. Duncanson suggests I should disclose. I state that since taking up employment in the Turks and Caicos Island in June 2022 I have never met the Plaintiff herein, in fact I don't know what he looks like. I also have no association or “history to those persons natural and or corporate and organisations identified within the subject affidavits in the subject appeals” as I am unclear who such persons or organizations are.

THAT I HAVE FAILED TO STAMP/FILE DOCUMENTS IN A TIMELY MANNER AND THAT I CONTINUE TO OMIT LISTING CRITICAL APPLICATIONS SUCH AS HIS MOTION FOR CONDITIONAL LEAVE TO APPEAL TO THE PRIVY COUNCIL

9 As Registrar I am responsible for the filing and issuing of all matters presented to the Registry. There are registry staff members who assist with the filing of documents. All documents are filed in a timely fashion. I do not have direct dealings with the filing of matters and therefore could have not failed to stamp Mr. Duncanson's documents in a timely manner. In respect of the example provided by Mr. Duncanson which related to a judgment from the President Court of Appeal Yorke Soo Hon P in Duncanson & Co. (Beryn Duncanson dba) v. East Wind Development Company Ltd. and Ors. (CL-AP 08, 13, and 14/2023) [2024] TCACA 12 (5 August 2024), the Appeal Court dismissed Mr. Duncanson's application for Conditional Leave. Subsequently Mr. Duncanson attempted to file another application for Conditional Leave. This document was brought to the attention of the Court of Appeal panel who indicated that the application was already heard and determined and no such application could be brought before the Court. Mr. Duncanson was informed of this.

THAT I REFUSED TO ACCEPT SERVICE OF AN ORIGINATING MOTION SUING A JUDGE OF THE SUPREME COURT

10 I did refuse to accept the said document on the basis that when suing an individual personal service is required and leaving such a document at the Court Registry is not proper service. Mr. Duncanson was informed of this.

THAT BY ACTION NO. 69 OF 2023 I WAS SUED TOGETHER WITH JUSTICE ANTHONY GRUCHOT IN HIS PERSONAL AND OFFICIAL CAPACITY, MYSELF IN MY CAPACITY REGISTRAR SUPREME COURT AND COURT OF APPEAL, THE REGISTRAR OF LANDS AND THE ATTORNEY GENERAL

11 I was sued. The Honourable Chief Justice delivered a Judgment in Action 69/23 on 2nd October 2024 dismissing the said action.

TO CURRENT...