Administrator General of Jamaica (Administrator Estate Alvin Augustus Cargill - deceased) v Vivian Plowright and Ferdinand Murphy

• Jurisdiction: Jamaica
• Judge: DOWNER. J.A: , HARRISON, J.A. , SMITH, J.A.(Ag.) , DOWNER. J.A.
• Judgment Date: 19 July 2001
• Neutral Citation: JM 2001 CA 36
• Judgment citation (vLex): [2001] 7 JJC 1903
• Court: Court of Appeal (Jamaica)
• Date: 19 July 2001

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MR. JUSTICE SMITH, J.A. (Ag.)

BETWEEEN:

ADMINISTRATOR-GENERAL OF JAMAICA (ADMINISTRATOR ESTATE ALVIN AUGUSTUS CARGILL- DECEASED)

PLAINTIFF/APPELLANT

AND

VIVIAN PLOWRIGHT

1 ^ST DEFENDANT/RESPONDENT

FERDINAND MURPHY

2 ^ND DEFENDANT/RESPONDENT

Judith Clarke for the Appellant

Christopher Samuda and David Johnson instructed by Piper and Samuda for 1 ^st Defendant/Respondent

CIVIL PROCEDURE - Appeal - Extension of time to file statement of claim - Inherent jurisdiction of court - Judicature (Civil Procedure Code) Law, s. 192

DOWNER. J.A:

1 (i)

2 Introduction

3 This is an interlocutory appeal from the order of Gloria Smith J. in which she refused an application to extend time in which to file a Statement of Claim and she also made a consequential order dismissing the action pursuant to the inherent jurisdiction of the Court.

4 To ascertain the scope and limits of the learned judge's discretion it is necessary to advert to sec. 192 (a) and(b); sec. 676, and sec. 244 of the Judicature (Civil Procedure Code) Law hereinafter referred as ("the Code"). The relevant sections of the Code read as follows:

"192. The filing of statements of claim shall be regulated as follows:

• (a) Where the writ is specially indorsed with or accompanied by a statement of claim under section 14 of this Law, no further statement of claim shall be filed unless the Court or a Judge otherwise orders

• (b) Subject to the provisions of section 78 of this Law, as to filing a statement of claim when there is no appearance, the plaintiff shall (unless he has filed a statement of claim under section 14 of this Law, or the Court or a Judge otherwise orders) file a statement of claim either with the writ of summons or notice in lieu of writ of summons, or within ten days after appearance, or within such extended time as may be fixed by the parties by consent in writing or by the Court or Judge."

5 Then sec. 676 reads:

"The Court shall have power to enlarge or abridge the time appointed by this Law, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require; and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed."

6 Further, sec. 244 is relevant because both in the ruling and the order which flowed from it in the Court below, there was a dismissal of the action for want of prosecution. It reads:

.*

Non-delivery of statement of claim.*

244. If the plaintiff, being bound to file a statement of claim and deliver a copy thereof, does not file the same and deliver such copy within the time allowed for that purpose the defendant may, at the expiration of that time, apply to the Court or a Judge to dismiss the action, with costs, for want of prosecution; and on the hearing of such application the Court or Judge may, if no statement of claim shall have been filed and a copy thereof delivered, order the action to be dismissed accordingly, or may make such other order on such terms as the Court or Judge shall think just."

7 In the context of this case, quite apart from the inherent jurisdiction of this Court to dismiss for want of prosecution, enlargement of time is also in issue. In consequence of the way that this case was argued on appeal, it is necessary to set out in full the learned judge's reasons and her order to ascertain what issues were before Her Ladyship.

8 The relevant summons reads:

"LET ALL PARTIES CONCERNED attend before the Master or a judge in Chambers at the Supreme Court, King Street, Kingston on Monday the 11 ^th day of January, 1999 on the hearing of an application on the part of the Plaintiff for an order that the Plaintiff be granted leave to serve Statement of Claim and Amended Statement of Claim within such time as this Court seems just.

AND TAKE NOTICE that the Plaintiff intends to rely on the Affidavit of Judith M. Clarke filed herein."

9 Turning to the ruling of the learned judge, it reads:

"Having had an opportunity to look at the authorities particularly West Indies Sugar Co, vs Stanley Minnel, I find them most instructive.

There has been inordinate delay on the part of the Plaintiff.

Writ filed on 4/6/96 and also the Statement of Claim. The statutory period of limitation has expired, the accident having occurred on 18/7/90. There was an order setting aside the Writ against the First Defendant as far back as 24 ^th November, 1996 even though Miss Judith Clarke stated that the Summons was served as far back as 11 ^th August, 1996.

The Court record indicates that the Summons for Leave to serve Statement of Claim and Amended Statement of Claim out of time came before Court on 23 ^rd July, 1998. Matter adjourned sine die. Mr. Samuda present. Miss Judith Clarke not present.

Came before Court also 11 ^th January, 1999. Again matter adjourned sine die. Mr. Samuda in attendance. No one came on behalf of the Plaintiff.

Mr. Samuda also attended on the 23 ^rd March, 1999 for the hearing. No one for the Plaintiff.

I also find that the Affidavit does not disclose an excuse sufficient in law to grant the application as prayed.

There would be prejudice to the Defendant if application is granted based on the submissions of Mr. Samuda.

I therefore, refuse the application and accordingly dismiss the action in respect of the First Defendant.

Costs for the First Defendant against the Plaintiff to be taxed if not agreed.

Certificate for Counsel granted

Leave to Appeal granted."

10 It will be demonstrated that evidence adduced in this Court gives the true explanation for Ms. Clarke's absences. The excuses proffered by her for a nine month delay will be considered to determine whether it was both inordinate and unreasonable. A factor to be taken into account was stated thus:

"4. That I was put in a position by the Plaintiff to commence proceedings herein in June, 1996 and the Plaintiff avers that the delay on its part was due to the inability on its part to obtain statements from the police."

11 It is clear from the order that the matter was heard on 28 ^th April 1999 and it reads:

• "1. The Summons for Leave To Serve Statement of Claim and amended Statement of Claim Out of Time be dismissed.

• 2. The action against the First Defendant herein be dismissed for want of Prosecution.

• 3. Costs to the First Defendants be agreed or taxed.

• 4. Certificate for Counsel Granted to the First Defendant.

BY THE COURT"

12 A significant feature to note is that there was no summons by the first respondent Vivian Plowright or any affidavit to dismiss the action for want of prosecution. Here is how this fact was stressed on the appellant's behalf:

"7. That having regard to the fact that there was before the court no substantive application to dismiss the action herein for want of prosecution, I omitted to produce to the court documentary data which may indicate that in the peculiar circumstances of this case, the First Defendant could not reasonably maintain that the granting of the extension would prove prejudicial to him."

13 (ii)

14 Did the learned judge exercise her discretion correctly in refusing to enlarge time for serving the Statement of Claim and amended Statement of Claim as prayed?

15 To appreciate the scope of the discretion of the learned judge, some attention must be given to the history of these proceedings. The accident in issue occurred on 18 ^th July, 1990. Here are the relevant averments in the Statement of Claim:

• "6. On or about the 18 ^th July, 1990 the Second Defendant so carelessly, recklessly and negligently drove, managed and/or controlled the First Defendant's said motor vehicle along Roselle main Road in the Parish of Saint Thomas that same collided with a utility pole whereupon the deceased sustained severe injuries from which he died on the same day, 18 ^th July, 1990.

• 7. Further or in the alternative on or about the 18 ^th day of July, 1990 the First Defendant permitted the Second Defendant to drive his said vehicle notwithstanding that it was defective as a consequence of which the deceased sustained serious injuries from which he died on the 18 ^th day of July, 1990."

16 Turning to paragraphs one to five of the Statement of Claim and the amendment they read:

• "1. The Plaintiff is the Administrator-General for Jamaica and Administrator of the Estate of Alvin Augustus Cargill and brings this action for the benefit of the said estate under the Law Reform ( Miscellaneous Provisions) Act and under Fatal Accident Acts for the Dependents of the deceased.

• 2. Letters of Administration were granted on the 7 ^th day of March, 1996.

• 3. The First Defendant was at all material times the owner of the motor vehicle licenced Number PP9048

• 4. The Second Defendant was at all material times the driver of the First Defendant's said motor vehicle and the servant and/or agent of the First Defendant.

• 5. The deceased, ALVIN AUGUSTUS CARGILL was at all material times a passenger in the First Defendant's motor vehicle."

17 The damages claimed under the Fatal Accidents Act and the Law Reform ( Miscellaneous Provisions) Act are as follows:

"PARTICULARS PURSUANT TO THE FATAL ACCIDENT ACT

The claim herein under the Fatal Accidents Act is brought on behalf of the following persons:-

• 1. PATRICIA CARGILL born on May 19, 1978 - daughter of deceased

• 2. ICILDA LENNON an adult (age 59 years) - mother of deceased.

• 8. At the time of his death the said ALVIN AUGUSTUS CARGILL was twenty-seven years old having been born on the 27 ^th day of April, 1967. He was a farmer, earned a minimum net income of Thirty Thousand Dollars...