Bobette James v Jamaica Urban Transit Company Ltd
| Jurisdiction | Jamaica |
| Judge | Staple J (Ag) |
| Judgment Date | 11 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2016 HCV 01579 |
[2023] JMSC Civ 198
CLAIM NO. 2016 HCV 01579
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Civil Practice & Procedure — Application for Relief from Sanction — Whether Application Made Promptly — Whether Attorney Being Unwell is to be considered as part of the question of the promptness of an Application for Relief from Sanction.
Mr. Ian Davis ins by Davis, Robb & Co for the Claimant/Respondent
Ms. Georgia Hamilton ins by Georgia Hamilton & Co. for the Defendant/Applicant
On the 10 th October 2014 there was an incident involving the Claimant, a conductor on the Defendant's motor vehicle, wherein he alleged that due to the negligent driving of the motor vehicle by the Defendant's driver, he, the Claimant, was injured.
To this end, he filed the present claim in the Court on the 19 th April 2016. The Claim was served on the Defendant on the 22 nd April 2016, but no defence was filed until the 13 th July 2016. Quite late.
The Claimant was able to obtain a Judgment in Default of Defence and an Assessment of Damages hearing was set down for the 29 th September 2017. That hearing was adjourned to the 27 th April 2018.
On the 29 th September 2017 the Defendant's present Attorneys-at-Law filed a Notice of Change of Attorney and entered into the matter on their behalf. They filed an Application for the Judgment to be set Aside on the 26 th April 2018 and this Application was eventually granted on the 25 th September 2018 and the parties sent to mediation with the Case Management Conference adjourned to the 13 th December 2018.
The Defence was filed on the 1 st October 2018. For whatever reason, the Case Management Conference set for the 13 th December 2018 did not take place and it was rescheduled to the 27 th March 2019 whereat the Case Management Conference Orders were made by Master Mott Tulloch-Reid (as she then was).
It is important to note that by this stage the Claimant had already been compliant with the orders for disclosure and Witness Statements to be filed and served as these had been done in advance of the Assessment of Damages. So these orders were largely for the purposes of the Defendant.
The Defendant did not comply with the Order for Disclosure and then proceeded to file an Application for an extension of time to comply with the said order on the 28 th April 2022.
Nothing happened thereafter until the 25 th July 2022 when the application dated the 28 th April 2022 was adjourned for hearing to today's date by Master Ms. S. Reid (Ag).
Over a year later, the Defendant Amended the Application filed on the 28 th April 2022 by filing an Amended Application on the 27 th September 2023 in which she was asking for (among other things) relief from sanction for failing to serve its list of documents and witness statement within the time stipulated by the Court.
The Application was supported by an Affidavit of Ms. Tanyalee Williams sworn on the 27 th September 2023 and filed on the same date. There were also submissions filed on the 5 th October 2023.
To err is human. In recognition of this the drafters of the Civil Procedure Rules copied from the English Civil Procedure Rules a codification of a mechanism to allow for the divine forgiveness for error – the relief from sanctions imposed by the Rules, Orders of the Court or Practice Directions when we run afoul of those rules, orders or practice directions.
Rule 26.8 sets out the mechanism for obtaining the Court's relief. The most critical aspect of this rule, for the purposes of this ruling, is the requirement under Rule 26.8(1) that applications for relief from sanctions must be made promptly (emphasis mine) and supported by affidavit evidence. If this initial threshold is not met, the Court is not required to and really should not proceed to examine the other conditions that are to be met for it to exercise its discretion to grant relief.
That this is so, was long ago confirmed in the case of Morris Astley v AG 1 when Morrison JA (as he then was) stated that, “…rule 26.8(1) provides that such an application must be made (a) promptly and (b) supported by affidavit. Once these
preconditions are met (emphasis mine) rule 26.8(2) permits the court to grant relief from sanctions imposed for failure to comply with any rule, order or direction…’Counsel argued in her submissions, quite forcefully, that what is meant by prompt depends on the circumstances of each case and gives the Court a level of flexibility in its considerations of whether an application was promptly made.
She cited as authority the decisions of H.B. Ramsay & Associates Limited et al v Jamaica Redevelopment Foundation et al 2, and Sykes J (as he then was) in the case of Quintin Sullivan v Ricks Café Holdings Inc T/A Ricks Café (No. 2) 3, wherein he said that, “In assessing promptitude, the Court must consider all the circumstances of the particular case. What may be prompt in certain situations may not be so in others and vice versa.”
The Court also examined the more recent decisions of Meeks v Meeks 4 and Deputy Supt. John Morris et al v AG of Jamaica et al 5. Again, at paragraph 67 of the Judgment of the Court in the John Morris appeal, P. Williams JA had this to say,
“ It is accepted that what amounts to promptness significantly depends upon the circumstances of the particular case (see Meeks v Meeks). In this case, I find that the question of promptness was relative to the time the breach had taken place with the consequential sanction taking effect”
So while there may be some flexibility in the approach, the time from which one counts will generally be from the time the breach occurs. There may be cases when the time counts from the date the breach came to the attention of the
Further guidance was had from the case of Norman Washington Burton v The Director of Public Prosecutions 6. In that case, the Office of the Director of Public Prosecutions (ODPP) had filed a Fixed Date Claim seeking certain relief to support a Foreign Restraint Order bearing Claim No. 2010 HCV 06164. The orders sought were granted. Subsequently, there was a Confiscation Order was made in the UK against the Appellant and the DPP was again pressed into service to register that order locally and to vary the previously obtained Foreign Restraint Order. This variation became necessary consequent upon a variation of the same order in the UK.
On May 26, 2015, the ODPP filed what was a new Claim bearing the old 2010 suit number. So naturally, the Appellant, through his Attorneys-at-Law applied for a declaration for this 2015 to be deemed invalid as it was not served within 1 year. The DPP also applied to the Court for a new suit number to be issued for the 2015 claim. The then Senior Puisne Judge ordered, on the ODPP's application, that (among other things),
“(4)…the HCV number 06164 of 2010 of the Fixed Date Claim Form dated 26th May 2015 be amended by the Registrar to a 2015 number. The [respondent] DPP must file the fixed date claim form with the amended number and any consequent amendments. The DPP must also refile any documents to which amendments must be made consequent on this order. The amended documents must be served on Mr Norman Burton by the DPP within 7 days of receipt of the amended fixed date claim form from the Supreme Court Registry.
In 2017, the ODPP refiled the suit, but instead of it getting a 2015 number, it received a 2017 number contrary to the Order of the SPJ. Clearly there was a lot of blame to go around in this comedy of errors. Now these documents were duly served on the Appellant. Eventually, the matters went before K. Anderson J, who
made an unless order for the ODPP to comply with Order 4 of the then Senior Puisne Judge failing which the statement of case would stand struck out. There was no compliance with this Order of K. Anderson J until July 2020 when the Registrar of the Supreme Court cancelled the 2017 number and gave...To continue reading
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