Aston East v George Freckleton

• Jurisdiction: Jamaica
• Judge: Anderson, K., J.,Honourable K. Anderson, J.
• Judgment Date: 24 July 2012
• Neutral Citation: [2012] JMSC Civ 100
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2011 HCV05632
• Date: 24 July 2012

[2012] JMSC Civ 100

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV05632

Between

Aston East

Claimant

and

George Freckleton

Defendant

Vernon Daley instructed by Gifford, Thompson & Bright , for the Claimant .

Anthony Pearson instructed by Pearson & company for the Defendant .

Unless Order — Breach of Unless Order — Whether Court has discretion to extend time for compliance of Unless Order — Civil Procedure Rules 6.6, 6.6(1), 26.2(1), 26.1(2) (c) and 26.9. — Application dismissed — Cost to Claimant.

IN CHAMBERS

CORAM: Anderson, K., J.

1 This Claim concerns a property dispute between the respective parties and has been instituted by means of Fixed Date Claim Form which is supported by Affidavit, as deponed to by the Claimant. In that Affidavit which was filed on September 12, 2011, the Claimant deponed to having then been ninety-one (91) years old. A first hearing of the Fixed Date Claim Form was held on October 11, 2011. Prior to that, the Defendant had filed an Acknowledgement of Service which stipulated that the Defendant had received both the Fixed Date Claim Form and Affidavit in Support on September 13, 2011. To date however, the Defendant has not filed a Defence in answer to the Claim made against him. Case management Orders were made by this Court at the First Hearing and those Orders had, inter alia, required the Defendant to file an Affidavit in response to Fixed Date Claim Form, a List of Documents, a Listing Questionnaire and Skeleton Arguments and Bundle of Authorities. This Court had, at that first hearing, also then scheduled respective dates when each of the respective documents were to have been filed by the respective parties. All of those case management Orders have been complied with by the Claimant. The Defendant however, did not comply with any of those case management Orders. At First Hearing, this Court had then scheduled trial for July 4, 2012. When that trial date came up, the Claimant was at Court and prepared and ready to undergo the trial. The trial was not however, conducted on those then scheduled dates, as the Defendant was clearly not then in a position to properly proceed with the same, since he had, even by then, still not filed any documents in response to the Claimant's Claim and/or other documents which had, by then, been filed by the Claimant. At trial therefore, the Defendant applied orally, for extensions of time in order to permit the requisite documents to be filed. At the same time, the Claimant applied for Default Judgment to be granted. This Court then refused the Application for Default Judgment, insofar as I was aware, as the Judge who heard the matter in open Court, on July 4, 2012, that a Default Judgment cannot properly be granted in respect of a Fixed Date Claim Form matter. See Rule 12.2 (a) of the Civil Procedure Rules in that regard. On the day when this matter came before the Court for trial, there were several other matters listed before the Court for hearing on that day and mistakenly, this matter was not actually on the list prepared of matters scheduled to be heard on either July 4, or 5, 2012. Added to that is the fact that I was not actually scheduled to hear matters in Motion Court on that day, as I then was actually scheduled to have been in Chambers.

Accordingly, I had not properly prepared myself to proceed on that day or even the following day, with a trial of this matter. Thus, although this Court is empowered by Rule 27.2(8) of the Civil Procedure Rules to dispose of a Fixed Date Claim Form, summarily at a First Hearing, if it is undefended and therefore, it seems, would have a similar power if the Fixed Date Claim were to come up for Trial and even by then, still be undefendedThis to my mind would be a case management power which this Court can exercise in such a circumstance. As things turned out however, that was not what then transpired. Instead, this Court then granted the Defendant's Application for extensions of time for compliance with this Court's case management orders.

In that regard, the Defendant was then granted up to and inclusive of July 18, 2012, within which to comply with all case management Orders. Additionally, it was then Ordered by this Court that if the Defendant failed to comply with all case management Orders by or before July 18, 2012, then the Defendant's Statement of case (if such were to then have existed), should stand as struck out. The Court also then scheduled another case management hearing to be held on July 19, 2012 at 12 noon. On that date (July 19,2012) by consent of the parties and with the Court's concurrence, arising from circumstances which occurred on that date and which were beyond this Court's control, the next scheduled case management hearing pertaining to this Claim, came back before this Court on July 20, 2012.

The background information, as provided in detail, is of great importance for the purpose of understanding the context to that which transpired before this Court on July 20, 2011. On that date, the Defendant applied orally again, for another extension of time. On that most recent occasion however, his Application was supported by Affidavit evidence, which was filed on July 18, 2012 and served on the Claimant's Attorney. That Affidavit was deposed to by the Defendant's Attorney —Mr. Anthony Pearson. Attached to that Affidavit is a draft Affidavit of the Defendant, but which has not yet been deposed to by the Defendant. Thus as stated above, it is a draft Affidavit or in other words, a draft Defence only. Mr. Pearson gave sworn testimony in that Affidavit of his, that he was informed by the Defendant's son that the Defendant is ill and has gone abroad to seek medical treatment. The affidavit though does not refer to the specifics of the Defendant's illness, nor is there any medical report from any doctor, whether based locally or overseas, attached as an exhibit to Mr. Pearson's Affidavit. Additionally, no evidence has been provided by the Defendant's counsel in his Affidavit as to when it is that the Defendant will likely return to the country, or even as to when he will be fit and/or well enough to depose to his proposed Affidavit in response to the Claim. What though has been stated by Mr. Pearson in his Affidavit, is that he has, via courier, transmitted the draft Affidavit to the Defendant, who is stated as presently being in the United States undergoing medical treatment there, and is therefore awaiting the return of the properly executed Affidavit (albeit the date of such expected return has not been stipulated to, in counsel's Affidavit).

2 When this Court made enquiry of defence counsel, in Chambers, on July 20, 2012, whether the other case management Orders had been complied with, Mr. Pearson then informed that they had indeed so been and that the only outstanding defence document at this time, was the Defence — in the form of an Affidavit in response. Mr. Daley — counsel for the Claimant, has taken issue with this, insofar as those other documents were served on the last date prescribed for filing — July 18, 2012, at 4:02 p.m. and thus, he contends that in accordance with Rule 6.6 (2) of the Civil Procedure Rules, those other documents were also filed a day late. Mr. Pearson disagrees with this contention and has suggested that this Court should not pay any regard to ‘trifles.’ This Court though, is of the view that whether or not a particular action as taken by a party, or lack of action by a party is to be considered as trifling, must in a Court scenario, just as it should in any other type of scenario, be viewed in context. With that in mind, it cannot at all be forgotten that there existed an Unless Order in respect of the Defendant. That Unless Order was made because of the Defendant's delay in responding to the Claim and in an effort to ensure that this matter does not take up more of this Court's time and/or resources than it should, if the Defendant either is not serious about putting forward a Defence to the Claim, or if, for whatever reason, he is unable to do so in a timely way — as must, of necessity, be required. In that context, the Defendant should not even have run the risk that a further delay may have arisen. As things have occurred, this Court is constrained, in accordance with Rule 6.6 of the Civil Procedure Rules to conclude that there has been a breach by the Defendant of its Unless Order, in respect of the date by which the Defendant's other documents (other than the Affidavit in Response), ought to have been served.

The breach in that regard may have been brought about due to a misunderstanding of, or lack of sufficient knowledge of the relevant Rules of Court, or may have been brought about simply because, for whatever reason, the documents in question could not have been served before the required date at 4:00 p.m — as per Rule 6.6 of the Civil Procedure Rules. Be that as it may though, this Court will have to consider whether it can properly exercise any discretion to extend time in that regard, at this stage, and if this Court can indeed extend time, then the nature of the time breach and the reasons therefor, should properly be considered by this Court, with a view to making a proper determination as to whether and if so, to what extent if at all, the other party — in this case, the Claimant, has been prejudiced. Thus, Mr. Pearson has also requested that this Court grant an extension of time, if this Court disagrees with him on the effect of Rule 6.6 of the Civil Procedure Rules in circumstances wherein the relevant other documents were served two minutes after 4p.m on July 18, 2012.

3 Thus, this Court must now first consider whether or not it has a discretion to extend time for compliance with peremptory Orders of the Court, in circumstances wherein the Court has Ordered that unless those peremptory Orders are complied with, then the...