Attorney-General v Administrator-General of Jamaica (Administrator of the Estate Elaine Evans, deceased)
| Jurisdiction | Jamaica |
| Judge | DOWNER, J.A. , PANTON. J.A. , SMITH, J.A. |
| Judgment Date | 29 July 2005 |
| Neutral Citation | JM 2005 CA 34 |
| Judgment citation (vLex) | [2005] 7 JJC 2919 |
| Date | 29 July 2005 |
| Court | Court of Appeal (Jamaica) |
CIVIL PROCEDURE - Limitation periods
ORDER:
1. Appeal allowed in part.
2. Order below varied to state that the statement of claim be amended to confine claims pursuant to the Law Reform Act.
3. The Statement of Claim is also amended so as to confine the claims to the proper parties.
4. There shall be no order as to costs.
Introduction
Before Reckord J. in the Supreme Court, there were two summonses. In the first summons the plaintiff, the Administrator-General on behalf of (the Estate) of Elaine Evans sought leave for an extension of time to file a Statement of Claim. The second summons was filed by the defendant Attorney-General who sought to dismiss the first summons for want of prosecution. Both summonses assumed that the Writ of Summons which instituted proceedings was valid with respect to Law Reform ( Miscellaneous Provisions) Act and the Fatal Accidents Act.
The Estate's summons to extend time appears at page 13 of the Record. It reads:
"1. That the Plaintiff be granted leave to file Statement of Claim out of Time
2. Costs to be costs in the cause."
Apart, from the Attorney-General, three other defendants were named. They were The Ministry of Local Government and Works, James Wellington and Donovan Vassell. The Writ of Summons was filed on 30 th July 1997 and served on 20 th August 1997. The Order was made on 26 th January 2000. That Order in so far as is material reads as follows at page 22 of the Record:
"1. The Plaintiff is granted leave to file the Statement of Claim Out of Time within fourteen (14) days of the date hereof.
2. No order as to costs.
3. Defendant granted leave to appeal."
Turning to the summons by the Attorney-General to Dismiss for Want of Prosecution and Abuse of Process, at page 9 of the Record it reads:
"1. The action against the First, Second and Third Defendants be struck out pursuant to Section 238 of the Judicature of Jamaica (Civil Procedure Code) Law and pursuant to the Court's inherent jurisdiction on the grounds that:
a. it discloses no cause of action
b. the action is therefore frivolous and vexatious and an abuse of the process of the Court.
2. This action be dismissed for want of prosecution pursuant to Section 244 of the Judicature (Civil Procedure Code) Law and pursuant to the Court's inherent jurisdiction on the grounds that:
a. there has been an inordinate and inexcusable delay in prosecuting this action;
b. the First, Second and Third Defendants will be prejudiced by the delay;
c. there is a substantial risk that there cannot be a fair trial.
3. Costs of this Application be the First Defendant's.
4. The First Defendant be granted such further or other relief as may be just in the circumstances."
At this stage it is pertinent to point out that the Estate, on February 5, 2001, filed a Notice of Discontinuance with respect to the Ministry of Local Government and Works. While the inclusion of the Ministry is not strictly necessary it was certainly convenient that the Ministry was named as a defendant. I will return to this subject later. Also to be noted is that the 4 th defendant Donovan Vassell was not represented in the proceedings below or in this Court.
The order dismissing the Attorney-General's summons was not exhibited, but in view of the Order granting the Estate leave to file a Statement of Claim out of time, the necessary implication is that the Attorney-General's Summons to Dismiss for Want of Prosecution and Abuse of Process was refused. Moreover, the Attorney-General in his Notice and Grounds of Appeal at page 2 of the Record prayed:
"FOR AN ORDER
1. (that) The Order dismissing the Summons to Strike Out Action be set aside."
Although the prayer concentrates on the Summons to Strike Out for Abuse of Process, the main submissions by both parties were largely on the issue of Dismissal for Want of Prosecution. There was no appropriate caption indicating the Grounds of Appeal, they are listed as follows on the same page:
"2. The learned Judge erred in law in failing to give effect to section 2 (1) (a) of the Public Authorities Protection Act that was in force at the time the cause of action arose.
3. The learned Judge erred in law by holding that the provisions of the Law Reform ( Miscellaneous Provisions) Act superceded the provision of the then Public Authorities Protection Act."
The matter was clarified in the Supplemental Notice and Grounds of Appeal at pages 1–2. Here are the grounds:
"1. The learned Judge erred in law in failing to give effect to section 2 (1) (a) of the Public Authorities Protection Act which provision would have accrued to the benefit of the Defendant/Appellant one year after the cause of action arose.
2. The learned Judge erred in law by depriving the Defendant/Appellant of the Statutory Defence available to it.
3. The learned Judge erred in law by finding that Section 2 (1) (a) of the Public Authorities Protection Act was only relevant if the Defendant shows that when the negligent act complained of was done, it was done in pursuance of a public duty or authority.
4. The learned Judge erred in law by relying only on the provisions of the Law Reform ( Miscellaneous Provisions) Act."
There were additional Grounds of Appeal at page 3 of the Supplemental Record which read:
"5. The learned Judge erred in Law by finding that the First Defendant/Appellant's failure to establish evidence of prejudice was fatal to its application to dismiss the action for want of prosecution.
6. The learned Judge erred in Law by not considering whether the delay occasioned by the Plaintiff was such as would give rise to a substantial risk that there cannot be a fair trial."
So formulated, these grounds raise issues of general public importance and are of exceptional Interest to the parties in this litigation. It was a case of some difficulty and I must pay some tribute to Counsel on both sides for the cogency of their submissions.
The judgment in the Court below
Here is how Reckord J. ruled on issues at pages 27–31 of the Record:
"1. Summons for extension of time to file Statement of Claim.
2. Summons to strike out action as it discloses no cause of action.
The first of these two summonses is by the plaintiff and the second by the 1 st defendant.
Arising from a fatal motor vehicle accident which occurred on the 14 th March, 1993, wherein Elaine Evans met her death, the plaintiff, as the administratrix of her estate, filed this action by a Writ of Summons on the 30 th day of July, 1997 claiming damages for negligence against the 4 th defendant under the Fatal Accidents Act and under the Law Reform ( Miscellaneous Provisions) Act."
There was a claim against all four defendants as joint tortfeasors. The learned judge further stated:
"The plaintiff acknowledges that in the claim under the Fatal Accidents Act, the period of three (3) years after death had passed before the action commenced but is asking the Court that in the interest of Justice, to allow a longer period to include the date of filing on the 30 th of July, 1997."
It is difficult to discern when the Estate asked for extension of time to file and serve the Writ of Summons to commence proceedings. The Writ of Summons was filed on July 30, 1997, and served 20 th August 1997. There is no evidence that leave was sought or granted in this regard. What was sought was an extension of time to file and serve the statement of Claim and this is what was granted in the Order of the Court below.
The learned judge continues thus:
"Again the plaintiff acknowledges that the statement of claim which should have been filed within ten days after the appearance, on the 3 rd September, 1997 has not yet been filed due to an oversight.
The defendant has not agreed to the statement being filed out of time on the grounds that the action is statute barred, and has filed a summons to strike out the action for that reason."
Further the learned judge found that:
"Section 2 (1) of the Law Reform Act, provides that all causes of action subsisting against or vesting in her, shall survive against or for the benefit of the estate.
Section 2 (3) provides that actions against the estate should be taken not later than 6 months after letters of administration is granted.
However, no mention is made in that subsection or any other for that matter about causes of action vested in her. The presumption therefore, is that the common law period of six (6) years should apply." (Emphasis supplied)
It is section 2 (1) of the Law Reform Act which is relevant to the circumstances of this case. It reads:
"2.-(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:"
Therefore the standard limitation period of six years for torts is applicable for actions vested in her. Since the action is for the benefit of the Estate time begins to run from the time Letters of Administration were granted.
As regards to the Public Authorities Protection Act, the learned judge seems to have accepted the Estate's submission when he...
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