Alcan Jamaica Company v Herbert Johnson et Al

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A.: , WALKER, J.A.: , COOKE, J.A.:
• Judgment Date: 30 July 2004
• Judgment citation (vLex): [2004] 7 JJC 3001
• Court: Court of Appeal (Jamaica)
• Date: 30 July 2004

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE WALKER, J.A THE HON. MR. JUSTICE COOKE. J.A

BETWEEN

ALCAN JAMAICA COMPANY

APPELLANT/2 ^ND DEFENDANT

AND

HERBERT JOHNSON

1 ^st RESPONDENT/DEFENDANT

AND

IDEL THOMPSON CLARKE

2 ^ND RESPONDENT/PLAINTIFF

Wendell Wilkins Robertson, Smith, Ledgister & Co. ^nd

Christopher Kelman & Nigel Jones Myers Fletcher & Gordon ^nd

DOWNER, J.A.:

1 I am in agreement with the reasons and conclusions of Cooke

WALKER, J.A.:

2 I agree.

COOKE, J.A.:

3 On the 12 ^th of December, 1993 there was a motor vehicle accident along the Pen Hill main road in Manchester. Kadeen Clarke and Oneil Wray Demetrius succumbed to injuries as a result of the accident. Arising therefrom a writ was filed on the 11 ^th December, 1996 by the plaintiff under the Fatal Accidents Act for and on behalt of the near relations of the two deceased. Demetrius was the driver of one vehicle in the accident and Clarke the plaintiff was his passenger. The driver of the other vehicle, the respondent/1 ^st defendant - was Herbert Johnson and the appellant/2 ^nd defendant Alcan Jamaica Limited his employer. The suit was in negligence. It is not certain when this writ was served but an appearance to the suit was entered on the 2 ^nd of September, 1997. A summons dated the 26 ^th August, 2002 to dismiss for want of prosecution instituted by the Appellant/2 ^nd defendant was heard on the 29 ^th January and 11 ^th March 2003 at the conclusion of which the learned trial judge ordered:

• "1. Suit to be dismissed for want of prosecution UNLESS the Plaintiff within 14 days of the date hereof file and serve a Statement of Claim herein;

• 2. Costs to the 2 ^nd Defendant against, the plaintiff in accordance with schedule A.

• 3. Leave to appeal granted."

4 From this order there was an appeal to a single judge of the Court of Appeal challenging the discretion exercised by the court below. This appeal was brought pursuant to Rule 2.4 of the Court of Appeal Rules 2002. The Rule is in these terms:

• "(1) On a procedural appeal the appellant must file and serve written submissions in support of the appeal with the notice of appeal.

• (2) The respondent may within 7 days of receipt of the notice of appeal file and serve on the appellant any written submissions in opposition to the appeal or in support of any cross appeal.

• (3) The general rule is that a procedural appeal is to be considered on paper by a single judge of the court.

• (4) The general rule is that consideration of the appeal must take place not less than 14 days nor more than 28 days after filing of the notice of appeal.

• (5) The judge may, however, direct that the parties be entitled to make oral submissions and may direct that the appeal be heard by the court.

• (6) The general rule is that any oral hearing must take place within 42 days of the filing of the notice of appeal.

• (7) The judge may exercise any power of the court whether or not any party has filed or served a counter-notice."

5 On the 2 ^nd of May, 2003, Bingham, J.A. allowed the appeal. Before him was only the written submissions by the appellant. The 2 ^nd respondent/plaintiff in this appeal did not comply with rule 2.4(2) supra. There was no written judgment by Bingham, J.A. The next step was the filing of a Notice of Motion by the 2nd respondent/plaintiff by which an application was made to this court seeking:

• "(1) The order of Mr. Justice Bingham made on May 2, 2003 in this appeal be varied or discharged.

• (2) The Respondent/Plaintiff be permitted to apply out of time for an extension of time in which to file and serve her written submissions in this appeal.

• (3) The written submissions be filed and served within three days of the date of this order or alternatively be taken as filed.

• (4) The appeal be heard in open Court.

• (5) There be further or other relief as the Court may deem fit."

6 At the conclusion of the submissions of Mr. Wilkins for the 2 ^nd respondent/plaintiff, Mr. Kelman began by submitting that the decision by Bingham, J.A. made pursuant to 2.4 of the Court of Appeal Rules 2002 was not subject to review by a full Court of Appeal. However this submission was withdrawn, and the hearing proceeded for a determination on the merits of the rival submissions.

7 Dismissal for want of prosecution

8 I will begin the discussion by reproducing at some length passages from the speech of Lord Diplock in Birkett v James [1977] 2 All E.R. 801 at 804 – 5 (d - b). This extract is fairly lengthy but I consider the citation necessary as therein is set out (a) the problem (b) the approach to confront the problem and (c) guidelines which should inform this approach.

"The modern practice as to dismissing actions for want of prosecution dates from 1967. By that time the dilatory conduct of proceedings in the High Court by solicitors to plaintiffs whose causes of action would turn on the reliability of witnesses' recollections of past events had become a scandal, particularly in the case of those who litigated with the help of legal aid. Postponement of a trial until memories had faded and witnesses had vanished created a substantial risk that justice could not be done. True it is that at the trial the evils of delay would be likely to bear more heavily on the plaintiff on whom the onus would lie of proving that things had happened as he alleged, but the risk that justice would not be done to him extended also to the defendant and, even if successful at the trial, the defendant was likely to be out of pocket for his costs, which in legally aided cases he had little prospect of recovering.

Although the Rules of the Supreme Court contain express provision for ordering actions to be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of an action for trial, such as delivering the statement of claim, taking out a summons for directions and setting the action down for trial, dilatory tactics had been encouraged by the practice that had grown up for-many years prior to 1967 of not applying to dismiss an action for want of prosecution, except on disobedience to a previous peremptory order that the action should be dismissed unless the plaintiff took within a specified additional time the step on which he had defaulted.

To remedy this High Court judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even where no previous peremptory order had been made, if the delay on the part of the plaintiff or his legal advisers was so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible. This exercise of the inherent jurisdiction of the court first came before the Court of Appeal in Reggentin v Beecholme Bakeries Ltd. [1968] 1 All ER 566, [1968] 2 QB 276 (reported in a note to Allen v Sir Alfred McAlpine & Sons Ltd. [1968] 1 All ER 543, [1968] 2 QB 229 and Fitz Patrick v Batger & Co. Ltd. 2 All ER 657 [1967] 1 WLR 706.

The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity, I shall refer to as Allen v McAlpine [1968] 1 All ER 543, [1968] 2 QB 229, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to RSC Ord. 25, r 1 of the current White Book Supreme Court Practice 1976, vol.1 pp 424–427. The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."

9 The want of enthusiasm in our legal fraternity for utilizing the recourse of seeking dismissal for want of prosecution was bemoaned by this court per Carberry, J.A. in Warshaw, Gillings, and Adler v. Drew [1986] 45 W.I.R. 265 at page 270 g, where he said:

"... in England, (at the instance of the Judges), there has been a greater willingness by defendants and their attorneys to resort to the remedy of dismissal for want of prosecution than we have seen in this jurisdiction. A similar response by Jamaican Attorneys and Judges is perhaps long overdue."

10 This Warshaw case received the attention of the Judicial Committee of the Privy Council (1990) 27 JLR 189 and the Birkett principles were approved.

11 In Patrick Valentine v Nicole Lumsden (an infant) and Lascelles Lumsden (next friend) (1993) 30 J.L.R. 525 the infant plaintiff suffered severe injuries in a motor vehicle accident on March 13, 1986. The Writ of Summons was filed on May 31, 1989 and the defence on June 19, 1990. Thereafter nothing happened in the matter. On April 22, 1992 the appellant filed his summons to dismiss the action for want of prosecution. The reason given for the delay was that his attorney-at-law had mislaid the file since April 1991 and it was not discovered until May 21, 1992. The master before whom the summons came dismissed it. On appeal the master's decision was reversed. Downer, J.A. said at page 527 (G).

"There are three features to note as regards the circumstances of this case. Firstly, the inordinate delay was caused by the respondent's...