Advantage General Insurance Company Ltd v Marilyn Hamilton
| Jurisdiction | Jamaica |
| Judge | Fraser JA,P Williams JA,McDonald-Bishop JA |
| Judgment Date | 20 December 2019 |
| Neutral Citation | JM 2019 CA 106 |
| Date | 20 December 2019 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 7/2014 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA App 29
IN THE COURT OF APPEAL
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice P Williams JA
THE HON Mr Justice Fraser JA (AG)
SUPREME COURT CIVIL APPEAL NO 7/2014
APPLICATION NO 56/2018
Conrad George and Andre Sheckleford instructed by Hart Muirhead Fatta for the applicant
Captain Paul Beswick and Miss Gina Chang instructed by Ballentyne Beswick and Company for the respondent
Civil practice and procedure - Costs — Default costs certificate — Application for setting aside — Whether there was a realistic prospect of success.
I have read, in draft, the judgment of my learned sister, P Williams JA. I agree with her reasoning and conclusion and, with the exception of one particular issue of relative importance, on which I consider it fitting to comment, there is nothing useful that I could further add.
My brief focus is directed at a single question of law, and that is, whether rule 26.8 of the Civil Procedure Rules, 2002 (“the CPR”), which provides for relief from sanctions, is applicable to applications for the setting aside of default costs certificates under rule 65.22(3) of the CPR, which is engaged in these proceedings. I would seize the opportunity to register, in some detail, my reasons for fully endorsing the reasoning of my learned sister, which culminated in the conclusion with which I agree, that rule 26.8 of the CPR does not apply to applications made pursuant to rule 65.22 of the CPR.
Rule 26.8(1), in a nutshell, gives the Supreme Court the power to grant relief to a party from any sanction imposed on that party for a failure to comply with any rule, order or direction upon an application made for that purpose and provided that certain specified requirements are met. The rule specifies the circumstances under which relief should be granted (rule 26.8(2)) and matters that the court must have regard to in considering whether to grant relief (rule 26.8(3)).
Rule 65.22 discretely makes provision for the setting aside of default costs certificate. It provides:
“(1) The paying party may apply to set aside the default costs certificate.
(2) The registrar must set aside a default costs certificate if the receiving party was not entitled to it.
(3) The court may set aside a default costs certificate for good reason.
(4) An application to the court to set aside a default costs certificate must be supported by affidavit and must exhibit the proposed Points of Dispute.”
The respondent, in strongly opposing the application for setting aside the default costs certificate, has relied heavily on authorities treating with the issue of relief from sanctions. In particular, and for the purposes of my discussion, reference was made to the Supreme Court's decision of Canute Sadler and Michelle Sadler v Derrick Michael Thompson and another [2019] JMSC Civ 11, in which Rattray J, in considering an application to set aside a default costs certificate, held that he was bound by the decision of Brooks JA in Rodney Ramazan and Ocean Faith NV v Owners of Motor Vessel (CFS PAMPLONA) [2012] JMCA App 37.
In the latter case, Brooks JA, in treating with an application for the setting aside of a default costs certificate, while sitting in chambers as a single judge of this court, set out a non-exhaustive list of factors to be considered in deciding whether “good reason” exists for doing so, in keeping with the dictates of rule 65.22(3) of the CPR.
Having laid down the requirements to satisfy the rule, he then proceeded to pronounce at paragraph [14] of the judgment that:
“I find also that rule 2.20(4) of the [Court of Appeal Rules, 2002 (“the CAR”)] which requires a consideration of the principles of relief from sanctions applies in these circumstances. The rule states:
‘(4) CPR rule 26.8 (relief from sanctions) applies to any application for relief.’
It would seem that an application to set aside a default costs certificate easily qualifies as an application for relief. In assessing the instant case I shall use the benchmark set out in rule 26.8, albeit in a somewhat adjusted order.”
Thereafter, he conducted his analysis within the framework of rule 26.8 of the CPR, “albeit in a somewhat adjusted order” as he had declared.
Regrettably, this court must depart from the pronouncement of Brooks JA in Rodney Ramazan and Ocean Faith NV v Owners of Motor Vessel (CFS PAMPLONA) that rule 2.20(4) of the CAR applies to applications for the setting aside of default costs certificates, thereby rendering rule 26.8 of the CPR, applicable to rule 65.22(3). An examination of the relevant provisions reveals that Brooks JA's dictum was, with the greatest of respect, per incuriam, and as such, ought not to be followed by the Supreme Court (as was done in Canute Sadler and Michelle Sadler v Derrick Michael Thompson) or by this court, in the instant case. I say so for the following reasons.
Rule 2.20(4) falls within the regime established by the CAR to treat with failure of an appellant or respondent to comply with any of the rules contained therein as they relate to an appeal or counter appeal. Rule 2.20 provides, in general, as follows:
“2.20 (1) Where an appellant or a respondent who has filed a counter-notice fails to comply with any of these Rules, any other party may apply to the court to dismiss the appeal.
(2) It is the duty of the registrar to see that all parties comply with the provisions of these rules and the registrar must report to the court before the end of each term any failure to comply.
(3) On considering the report of the registrar under paragraph (2), the court may by order require any party to remedy any failure to comply with these Rules by a stated date and that in default of so doing —
(a) if the party in default is the appellant, the appeal be dismissed with costs against the appellant;
(b) if the party in default is a respondent who has filed a counter-notice, the counter-notice be struck out and the respondent do pay to all other parties such additional costs as such parties may have incurred as a result of the counter-notice; or
(c) in the case of any other respondent, that respondent be debarred from being heard on the appeal.
(4) CPR rule 26.8 (relief from sanctions) applies to any application for relief.”
It is clear that the above provision is specific to the Court of Appeal only and to the rules governing the court. Furthermore, the only provision of the CPR that is cross-referenced as being of particular application is rule 26.8 (relief from sanctions).
The regime established to set aside default costs certificates fall within Part 65 of the CPR. That Part is rendered applicable to this court, by virtue of rule 1.18(1) of the CAR. This latter rule states:
“1.18 (1) The provisions of CPR Parts 64 and 65 apply to the award and quantification of costs of an appeal subject to any necessary modifications and in particular to the amendments set out in this rule.”
As can be seen, rule 1.18(1) of the CAR makes no reference, either expressly or by necessary implication, to rule 26.8 of the CPR, nor does it cross-reference rule 2.20(4) of the CAR, as being relevant to matters dealing with default costs certificates.
I adopt the views of P Williams JA that rule 65.22 of the CPR is a “self-contained” provision. That is to say, that the regime it has established bears no correlation to the regime established by rule 2.20.(4) of the CAR. Therefore, rule 2.20(4) cannot be utilised as a gate-way for rule 26.8 to be made applicable to rule 65.22(3), which is in issue in this case. Simply put, rule 2.20(4) is not at all applicable to applications made pursuant to rule 65.22(3).
Accordingly, there is only one criterion to be satisfied for the setting aside of default costs certificates under rule 65.22(3), and that is, that “good reason” exists for so doing. Neither the CPR nor the relevant authorities has provided an exhaustive list or closed category of factors that may constitute “good reason”. It may very well be that some of the matters that are required in the consideration of an application for relief from sanctions may be relevant considerations in determining whether good reason exists for the setting aside of a default costs certificate. The requirement for the application to be made promptly may be one such consideration.
There cannot be, however, any hard and fast rule that the requirements under rule 26.8 of the CPR, must be applied, be it strictly or modified, to applications brought under rule 65.22(3). The question of what consitutes good reason for the purposes of the rule, falls to be determined upon an objective consideration of the particular facts and circumstances of each case, with the application of sound judgment and the overriding objective to deal with the case justly.
This is yet another of the several matters spawned from the efforts of Marilyn Hamilton, the respondent, to have the court pronounce on her purported dismissal from the United General Insurance Company Limited, now the Advantage General Insurance Company, the applicant. This application is to set aside a default costs certificate issued by the registrar of this court on 12 March 2018.
In its application filed on 13 March 2018, the applicant seeks the following orders:
“1. The Default Cost Certificate issued by the Registrar on 12 th March 2018 be set aside;
2. Time be extended to allow for the filing of the points of dispute to the Respondent's Bill of Costs filed herein on 8 th February 2018;
3. Any further relief as this Honourable Court may deem fit.”
The grounds on which the applicant seeks the orders are as follows:
“(i) This...
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