Ballantyne, Beswick & Company (A Firm) v Jamaica Public Service Company
| Jurisdiction | Jamaica |
| Judge | Cresencia Brown Beckford, J. |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] JMSC Civ 13 |
| Docket Number | IN THE CIVIL DIVISION CLAIM NO. 2007 HCV 00921 |
| Court | Supreme Court (Jamaica) |
| Date | 27 January 2017 |
[2017] JMSC Civ 13
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION CLAIM NO. 2007 HCV 00921
Novia Cotterell and April Grapine-Gayle instructed by Ballantyne, Beswick & Company for the Claimant
Tana'ania Small-Davis, Joshua Sherman and Kathyrn Williams instructed by Livingston, Alexander and Levy for the Defendant
Application to strike out claim — Delay — Exercise of discretion
This application was brought by the Defendant due to the delay in prosecuting a claim brought against it approximately 8 years ago by the Claimant. On February 23, 2007, the Claimant, Ballantyne, Beswick and Company, a firm of Attorneys, filed a claim against the Defendant, Jamaica Public Service Company Limited, the main provider of electric services in Jamaica seeking the following relief:
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(a) A Declaration in relation to the Defendant's delivery of electricity supply to the Claimant's office;
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(b) Damages for breach of statutory duty;
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(c) Damages for breach of contract;
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(d) An account of electricity delivered to the Claimant and recalculation and adjustment of the Claimant's account with the Defendant; and
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(e) Repayment of overcharges on the Claimant's account with the Defendant.
The claim arose out of an allegation by the Claimant that it suffered financial loss due to unnecessary consumption of electricity which was caused by a slack connection in the Claimant's breaker panel. The Claimant further alleged that this was a direct result of the voltage fluctuations in the Defendant's provision of electricity. The Defendant in its defence denied being responsible for the voltage fluctuations. After the close of pleadings, on October 3, 2007, the case was automatically referred to mediation.
While the Defendant took steps for mediation to take place, writing to the Dispute Resolution Foundation requesting a list of mediators for consideration, the Claimant wrote to the Dispute Resolution Foundation refusing to comply with the Court's compulsory referral to mediation. The Claimant further requested that the Dispute Resolution Foundation advise the Registrar of the Supreme Court that it is declining to mediate the claim. In the letter dated the 6 th of December 2007 the Defendant stated inter alia that:
“…we believe that as a responsible organization, you should assess the circumstances of each case and not blindly demand that each and every litigant proceed through the mediation process where it is clear that the process would serve only to waste litigants” resources and increase the time to the total resolution of the matter.
We therefore now request that you advise the Registrar of the Supreme Court that you are declining this mediation since no purpose will be served by proceeding.
At no time did the Claimant apply to the Court to dispense with mediation. Neither has it taken any further steps to advance its claim against the Defendant. As a result of this, the claim has fallen into prolonged hibernation with approximately eight (8) years having passed since the claim was filed. This is in stark contrast to the Claimant's stated reason for refusing to participate in mediation.
In light of this, the Defendant has now applied to have the Claimant's case dismissed for want of prosecution or in the alternative, that the matter be struck out as an abuse of the process of the Court on account of the delay. The Defendant bases its application on the following grounds:
“The delay by the Claimant in prosecuting the matter is inordinate and inexplicable and this demonstrates that it has no intention or interest in pursuing the claim to its conclusion.
The Claimant unreasonably refused mediation on the basis that it was a waste of time and ironically has since then not taken any steps in prosecuting the claim. Further the onus was on the Claimant to make an application to the court to dispense with mediation pursuant to CPR Rule 74.4(1).
The Defendant will suffer severe prejudice as a result of the delay in having the action hanging over his [sic] head indefinitely, not knowing when it is going to be brought to trial.”
The Claimant accepts that its failure to advance the matter is inexcusable but contends that the striking out of its statement of case would be too harsh a penalty for its tardiness.
The issue to be dealt with is whether or not the Court ought to exercise its discretion in this case in favour of the Claimant or Defendant where the Claimant has been guilty of inexcusable delay.
The Defendant argues that the claim has been inactive for over seven(7) years and following the Claimant's written rejection to the Dispute Resolution Foundation of the Court's referral to compulsory mediation, the Claimant took no further steps to proceed with the matter. In arguing that the delay of more than seven (7) years is inordinate, the Defendant relied on the case of Spurgeon Reid v Corporal Lobban and the Attorney General of Jamaica Suit No. C.L 1989/R-014 (unreported).
It was further noted that CPR Rule 74.4 (1) provides that an application may be made for mediation to be dispensed with and this application must be made to the Court and not the Dispute Resolution Foundation. The Defendant relied on the case of Margarette Macaulay v Harold Brady & Bruce Golding [2014] JMSC Civ 33 in support of this argument. However, since the Claimant unreasonably failed to agree to mediation and declined to make an application to the Registrar of the Supreme Court to dispense with mediation, the matter has “fallen into hibernation in the anteroom of the registry archives”.
The Defendant also argued extensively that the Claimant has shown no interest in prosecuting the claim. Though the Claimant cited the need to save resources and time as the reason for refusing mediation, it has taken no further actions whatsoever to prosecute the matter since the letter was sent to the Dispute Resolution Foundation.
Counsel for the Defendant further argued that the Defendant has been prejudiced by the claim hanging over its head for an indefinite period since this requires that it is reported on an annual basis as a contingent liability to its shareholders and insurers. The Defendant relied on Tabata v Hetherington, Guradian Newspapers and RaynorRoyal Courts of Justice Transcript of December 12, 1983 and Keith Hudson, Clandale Sheckleford, Winston Letts & Carmen Letts v Vernon Smith and Alwyn Smith SCCA No. 35 of 2005 to bolster its argument that although the Defendant did suffer prejudice, it was not necessary that the Defendant show actual prejudice or a risk of a fair trial being impossible as a result of the delay
The Claimant argues that in spite of its conduct in the matter, the circumstances of the case require that the matter be properly ventilated so that justice may be done. Therefore, the draconian sanction of striking out the Claimant's statement of case ought not to be taken in this instance since the Court has other tools in its arsenal to enforce compliance.
The Claimant grounds its argument on the wide powers of the Court to protect its processes from abuse, especially in cases where the Claimant lacks diligence in prosecuting the case as was noted in the well known case of Grovit v Doctor [1997] 1 WLR 640 which was approved and applied by the Privy Council in Icebird Ltd v Winegardner (The Bahamas) [2009] UKPC 24.
Counsel for the Claimant in her submissions accepted that the Claimant erred in failing to proceed with mediation as was ordered by the Court. She further acknowledged that compounding this error, the matter fell into dormancy. However, she submitted that the claim is not a “plain and obvious” case which warrants the severe measure of having it struck out at the first and only occasion. The Claimant relied on the case of S&T Distributors Ltd. V CIBC Jamaica Ltd et al SCCA No. 112/04 (unreported) delivered 31st July 2007 to support its argument that the discretionary power to strike out a claim must be exercised with extreme caution.
It was also submitted that in the circumstances, an “unless order” would be more appropriate since Rule 26.9 (3) gives the Court the power to make an order to put matters right where there has been an error or failure to comply with a rule, practice direction or court order. The Claimant relied on the case of JMMB Merchant Bank v Winston Finzi and Mahoe Bay Company Ltd [2014] JMCCCD 10 to support this point.
The Claimant, relying on Canada v Aqua-Gem Investments Ltd [1993] 2 425, asserted that the Defendant has suffered no serious prejudice as a result of the delay. It noted that all monies which were requested by the Defendant in relation to the Claimant's electricity consumption was promptly paid. The Defendant has not been kept out of its monies.
The Claimant also argued that it would be prejudiced financially if its statement of case is struck out since, if successful, the Defendant would have to recalculate its electricity charges and give credit for over-consumption caused by its improper delivery of electricity or to recalculate the Claimant's electric consumption and pay the amount owing on such recalculation. The Claimant also relied on the analysis of the Court in Aqua-Gem of the cases Birkett v James [1978] AC 297andDepartment of Transport v Chris (Smaller) Transport Ltd [1989] AC 1197 (HL) to highlight the fact that the prejudice which will be caused by the expiration of the limitation period must be borne in mind. The Claimant submitted that:
“as the limitation period has passed in the present case and there can still be a fair trial and the Defendant has suffered no prejudice, to strike out the case at this stage would...
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