preventing the late filing of an affidavit.

Lawyer Mr. Mark Diel had argued inclusion of the evidence was necessary to tell the "whole story'' of the case which involved a $4.7 million lawsuit against a Bermuda-registered rustproofing products company in liquidation since 1991, its bank, and directors.

Both sides will now await the result of a second appeal by Mr. Diel, representing the defendants.

The court indicated for it to accept the affidavit late there must be an explanation. None was, or has been given, they determined.

"The judge was given no explanation nor indeed have we been given one,'' Court of Appeals judge Sir Alan Huggins, said yesterday.

Eighteen months ago, Puisne Judge the Hon. Mr.Justice Meerabux refused to accept the affidavit because it was filed six months after the action commenced.

Mr. Diel would not comment yesterday on why the affidavit was originally filed late.

Judgment on Mr. Diel's second appeal effort remains outstanding.

That appeal involves a decision by Chief Justice the Hon. Austin Ward last October which granted access to only two of 80 particulars of Waxoyl.

Liquidator Deloitte & Touche, represented by lawyer Mr. Saul Froomkin, is seeking an estimated $4.7 million in damages from the appellants, the Bank of Butterfield, the Bank of Butterfield Executor & Trustee Co. Ltd. (BETCO), and Waxoyl directors Mr. Stephen Kempe, Mr. Kenneth Morgan, Mr. Anthony Saunders, and Mr. John Dobson.

Mr. Froomkin, who alleges the directors failed to fulfil their responsibilities, the bank breached its mandate and BETCO breached its contract with the company, said yesterday's judgment on the first appeal was given "quickly and correctly''.