Attorney General of Jamaica v Roshane Dixon

• Jurisdiction: Jamaica
• Judge: Harris JA
• Judgment Date: 21 June 2013
• Neutral Citation: JM 2013 CA 67
• Docket Number: SUPREME COURT CIVIL APPEAL NOS 148 & 149/2011
• Court: Court of Appeal (Jamaica)
• Date: 21 June 2013

[2013] JMCA Civ 23

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NOS 148 & 149/2011

Between

Attorney General of Jamaica

Appellant

and

Roshane Dixon

Respondent

Between

Attorney General of Jamaica

Appellant

and

Sheldon Dockery

Respondent

Miss Alicia McIntosh instructed by the Director of State Proceedings for the appellants

Mrs Marvalyn Taylor-Wright instructed by Taylor-Wright & Co for the respondents

CIVIL PROCEDURE - Extension of time - Application to file defence - Leave to enter judgment in default of defence

Harris JA

1 In these appeals, the appellant seeks to set aside the orders of Master Bertram-Linton (Ag) (as she then was) in which she refused to grant applications by the appellant to extend the time within which to file defences. The learned master, after refusing the applications, granted the respondents leave to enter judgment in default of defence. In the interest of expediency and convenience these cases, although not consolidated, were heard by the learned master simultaneously.

Background re Sheldon Dockery

2 On 2 July 2010, the respondent, Sheldon Dockery, commenced proceedings against the appellant claiming damages for false imprisonment and malicious prosecution. The claim form having been served, an acknowledgement of service was filed by the appellant on 19 July 2010. No defence having been filed, on 31 January 2011, the respondent filed an application to enter judgment in default of defence.

3 On 7 March 2011, the appellant made an application for an extension of time to file and serve a defence. In a supporting affidavit, sworn by Miss Alecia McIntosh, paragraphs 4 and 5 state:

‘4. That the time in which to file a Defence in this matter pursuant to Rule 10.3 (1) of the Civil Procedure Rules 2002 expired on or about October 15, 2010. We had yet to receive complete instructions which would enable us to comply with the aforementioned rule. Sufficient instructions to enable an assessment of the claim were only received earlier this month.

5. The delay in filing a Defence was not deliberate and should the Court be minded to grant the orders sought in this application it is unlikely that the Claimant will suffer any real prejudice.’

4 On 10 June 2011, the appellant, through Miss McIntosh, filed a supplemental affidavit exhibiting a draft defence. Paragraphs 2 and 3 state:

‘My knowledge of the facts and matters deponed herein is taken from the file held at the Attorney General's Chambers and is true in so far as it is in my personal knowledge and where it is not in my personal knowledge it is true to the best of my knowledge, information and belief.

I crave this Honourable Court's indulgence to refer to the Affidavit of Alicia E. McIntosh in Support of Notice of Application for Court Orders filed May 31, 2011, seeking leave to file a Defence herein out of time. Further to that Affidavit a copy of the draft Defence is attached hereto as exhibit ‘ AEM-1 .’

It appears that the applications for extension of time and for default judgment were also heard simultaneously.

5 The appellant filed the following grounds of appeal:

• ‘1. The Learned Master erred when she held that the draft defence contained no triable issues on its face.

• 2. The Learned Master erred when she failed to give due regard to the overriding objective.

• 3. The Learned Master erred when she determined that the inability to obtain complete instructions amounted to no excuse at all for the delay in filing a defence.’

Background re Roshane Dixon

6 On 25 March 2011, the respondent, Roshane Dixon, instituted proceedings against the appellant claiming damages for assault and battery. The claim form and particulars of claim were duly served on the appellant on 23 March 2011. On 8 April 2011, the appellant filed an acknowledgment of service. Having neglected to file a defence within the prescribed time, the appellant, on 9 May 2011, sought leave to file and serve defence out of time. On 3 June 2011, the respondent made an application for leave to enter judgment in default of defence. This was supported by an affidavit by him. The latter application was fixed for hearing on 21 September 2011.

7 On 23 June 2011 an affidavit sworn by Miss McIntosh was filed in support of the appellant's application. The contents of paragraphs four and five of that affidavit are almost identical to paragraphs 4 and 5 of that filed in support of the application in Dockery's case. A draft defence, which was exhibited to an affidavit by Miss McIntosh, filed on 21 September 2011 was also before the learned master.

8 The following grounds of appeal were filed:

• ‘1. The Learned Master erred when she held that the criteria set out in the relevant case law were not satisfied.

• 2. The Learned Master erred when she held that the criteria set out in the Civil Procedure Rules 2002 were not satisfied.

• 3. The Learned Master erred when she failed to give any or give due consideration to the Defendant's draft defence.

• 4. The Learned Master erred in her interpretation of the relevant case law and Civil Procedure Rules.’

Submissions

9 Similar submissions were made by counsel on both sides, in respect of each case.

10 Miss McIntosh submitted that the appellant has a good defence, one which is arguable and has a good prospect of success. It was her further submission that the learned master failed to disclose whether consideration was given to the proposed defences. Citing Fiesta Jamaica Ltd v National Water Commission [2010] JMCA Civ 4, in which this court approved a dicta of Lightman J in the case of Commissioner of Customs and Excise v Eastwood Care Homes [2001] EWHC Ch 456 as to the criteria to be adopted in an application for an extension of time, she submitted that in Fiesta, the court was of the opinion that even where there is insufficient reason for the delay the court should give consideration as to whether in the interest of justice, the proposed defence is arguable. The delay, she argued, could not be regarded as inordinate and in the interest of justice, even where the reasons for the delay are insufficient, the court should have regard to the merits of the defence.

11 The learned master, she argued, failed to consider that any prejudice caused by the delay could have been remedied by an award of costs.

12 Mrs Taylor-Wright submitted that the learned master correctly found that the appellant had not met the criteria for an extension of time and he had not, in his grounds of appeal shown any proper basis upon which the learned master could have exercised her discretion in his favour.

13 Counsel further contended that no explanation had been given by the appellant for his failure to file his defence in compliance with the rules. She argued that there is a delay in filing the defences and further, no reason has been proffered by the appellant for his failure to do so within the prescribed time. She cited the case of Peter Haddad v Donald Silvera SCCA No 31/2003 delivered on 31 July 2007, in support of her submission and made reference to the following extracts from it:

‘The Court has an untrammelled discretion. This discretion must be exercised judicially. There must be some material upon which the Court can exercise its discretion (see Patrick v Walker) [(1969) 11 JLR 303]. The question is, In what circumstances should the court extend the time for compliance with a rule? …’ (page 8)

At pages 11–12, the court said:

‘The authorities show that in order to justify a court in extending time during which to carry out a procedural step, there must be some material on which the court can exercise its discretion. If this were not so then a party in breach would have an unqualified right for an extension of time and this would seriously defeat the overriding objectives of the rules.’

14 Mrs Taylor-Wright continued by saying that the court, in Haddad v Silvera, adopting the principle in Revici v Prentice Hall Inc [1969] 1 WLR 157; [1969] 1 All ER 772, was of the view that payment of the costs does not give a dilatory applicant a right to an extension of time.

15 Counsel further submitted that having regard to the overriding objective, an application for an extension of time ought to be made promptly. The failure to get instructions, she argued, is an inadequate excuse for the delay. The appellant having not given an explanation for failure to seek extension of time is fatal, she...