Attorney General of Jamaica and Another v Rashaka Brooks Jnr (A Minor)

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 19 April 2013
• Neutral Citation: JM 2013 CA 44
• Docket Number: SUPREME COURT CIVIL APPEAL NO 160/2012
• Court: Court of Appeal (Jamaica)
• Date: 19 April 2013

[2013] JMCA Civ 16

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 160/2012

The Attorney General of Jamaica

1st Appellant

and

Western Regional Health Authority

2nd Appellant

and

Rashaka Brooks JNR (A Minor) by Rashaka Brooks SNR (His father and next friend)

Respondent

Miss Marlene Chisholm instructed by the Director of State Proceedings for the appellants

Jason Jones instructed by Nigel Jones and Co for the respondent

CIVIL PROCEDURE - Extension of time to file defence - Application for, refused - Whether the judge exercised wrong test in assessing application for extension of time - Whether absence of merits of a defence results in failure of notice to extend time to file defence - Whether the overriding objective supports grant of extension of time to file defence - CPR 2002, Rule 1.1

Brooks JA

1 On 5 December 2012, a Master of the Supreme Court of Judicature refused an application by the Attorney General of Jamaica and the Western Regional Health Authority (the appellants) for an extension of the time allowed for filing their defence to a claim brought against them by Rashaka Brooks Jnr. Rashaka Brooks Jnr is a minor, but his father and next friend, Mr Rashaka Brooks Snr (Mr Brooks), filed the claim on his behalf. The learned Master also:

• a. refused the appellants' application for their acknowledgment of service, which was filed after the 14 days prescribed by the Civil Procedure Rules (CPR), to stand, and

• b. granted Mr Brooks permission to enter judgment against the appellants in default of acknowledgment of service and in default of defence.

2 The appellants are dissatisfied with the learned Master's ruling and have filed this procedural appeal to have it set aside. The essence of their appeal is that the learned Master utilised the wrong test in assessing their application for extension of time and did not give due consideration to the reason for their delay in filing an acknowledgment of service to the claim. Mr Brooks has resisted the appeal. He asserts that the learned Master was correct. A single judge of this court referred the appeal to the court.

3 This appeal turns mainly on whether the learned Master was correct in stating that in the absence of evidence concerning the merits of the defence, the application to extend time must necessarily fail.

A brief background

4 The claim asserts that when Rashaka was less than a year old he was the victim of negligent medical treatment while he was a patient at the Cornwall Regional Hospital between May and June 2011. Among the allegations of negligence is that the child was transfused with A positive blood when his blood type was A negative. He was sent for treatment overseas where his condition was diagnosed and eventually resolved.

5 All the relevant events in respect of the resultant legal proceedings took place in 2012. The claim form and particulars of claim were filed on 22 June and served on the Attorney General on 26 June. The appellants failed to file an acknowledgment of service within the 14 days allowed by the CPR. On 18 July, Mr Brooks filed an application for permission to enter judgment in default of acknowledgment of service. He served an advance copy of his application on the appellants. This prompted the appellants to file their acknowledgment of service on 23 July. They, however, also missed the 24 September deadline for filing their defence to the claim.

6 The appellants did nothing about correcting that situation despite the fact that they were served, on 20 September, with another copy of the application mentioned above, which copy had a date for hearing of 12 November. They only acted when they were served, on 1 November, with an amended application for permission to enter judgment against them, this time, in default of defence. They then filed and served their application for extension of time to file the defence and for the acknowledgment of service to stand. This was on 9 November. The learned Master commenced hearing both applications on 12 November. She allowed the appellants to argue their application despite it having been short-served.

7 The appellants supported their application with an affidavit that was filed on 9 November. The affidavit sought to explain the reason for the delay in filing the acknowledgment of service and the defence respectively. It also set out the reason for requiring more time to file the defence. In respect of the delay, the explanation was that by an administrative oversight in the Attorney General's chambers, the file in respect of this claim was not assigned to an attorney-at-law until 23 July (the date that the acknowledgment of service was filed). As far as the need for the extension of time was concerned, the affidavit set out the efforts made to secure instructions. It stated that some instructions had been obtained but that those instructions did not include instructions concerning the ‘testing of the infant Claimant's blood’ (paragraph 9).

8 The deponent, Miss Marlene Chisholm, went on to state the period within which she expected that the outstanding instructions would become available. She said at paragraph 10 of the affidavit:

‘We were advised by the Ministry [of Health] that further instructions were sought but they are not yet available. I have also made contact with representatives of the 2nd Defendant by telephone and email and I verily believe that the further instructions requested will become available before the end of November.’

The learned Master's decision

9 The learned Master, in reaching her decision, relied principally on two cases as providing guidance in assessing the appellants' application before her, namely Philip Hamilton (Executor in the Estate of Arthur Roy Hutchinson, Deceased, testate) v Frederick and Gertrude Flemmings [2010] JMCA Civ 19 and Fiesta Jamaica Ltd v National Water Commission [2010] JMCA Civ 4. Both cases are decisions of this court.

10 She correctly gleaned from those decisions that an application for extension of time within which to file a defence must be supported by evidence, not only outlining the reason for the failure to comply with the prescribed time, but also demonstrating that there was merit in the defence. Having examined the cases, the learned Master said at paragraph [11] of her judgment:

‘I have to determine therefore if there is sufficient material before me which could provide a good reason for the delay in failing to comply with rule 10.3(1) of the CPR [prescribing the time for filing the defence] and also (emphasis supplied) if there is any information to satisfy me that there is merit in the case. (Per Phillips J.A. at [paragraph] [37] of the Phillip [sic] Hamilton case).’ (Emphasis as in original)

11 She thereafter reinforced her identification of the method of approaching her task. She said at paragraph [13]:

‘It is clear to me based on these two authorities that before I can exercise my discretion to grant the [appellants'] application to extend the time for filing their defence, there must be evidence before me that satisfactorily provides a good reason for the delay in failing to comply with Rule 10.3(1) of the CPR and also that there is merit in their case.’

12 Based on that understanding, the learned Master found that, in the absence of evidence of the merits of their defence, the appellants could not succeed in their application. She said, in part, at paragraph [22]:

‘…the [appellants] up to the time that their application was heard had not put themselves in a position to advance the merits of their case. I am consequently unable to assist them and the claimant's application [for permission to enter judgment in default] therefore succeeds.’

The analysis

13 In commencing the analysis of the learned Master's reasoning and conclusion, it is important to note that rule 10.3(9) of the CPR, which deals with applications for extension of time to file a defence, does not provide any guidance as to the manner of assessing such applications. The rule simply states:

‘(9) The defendant may apply for an order extending the time for filing a defence.’

14 As is well known by now, the principle that operates is that, in the absence of specific guidance in a particular rule, the court is to have regard to the overriding objective in applying that rule. The overriding objective of the CPR is that courts are to strive to ensure that cases are dealt with justly. Rule 1.1(1) states:

‘(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.’

Rule 1.2 explains the method by which the overriding objective is applied in the CPR. It states:

‘1.2 The court must seek to give effect to the overriding objective when interpreting these rules or exercising any powers under these rules.’

15 The result of applying that principle is that there should not be an inflexible stance where the court is given a discretion. Generally, each case is to be decided on its own facts. This court has recognised this principle in previous decisions dealing with applications for extension of time within which to file a defence. In Fiesta Jamaica Limited v National Water Commission, the court approved an approach to assessing such applications. Harris JA, with whom the rest of the court agreed, said at paragraph [15] of her judgment:

‘The first issue to be addressed is whether the appellant ought to have been granted an extension of...