Camelia Mcbean v The Attorney General for Jamaica

• Jurisdiction: Jamaica
• Judge: T. Mott Tulloch-Reid (Ag)
• Judgment Date: 19 November 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2019CV0113
• Date: 19 November 2019

[2019] JMSC Civ 243

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. SU2019CV0113

Between

Camelia Mcbean

Claimant

and

The Attorney General for Jamaica

Defendant

Ms Kristen Fletcher and Ms Apryl July instructed by The Director of State Proceedings Attorney-at-law for the Defendant

Ms Catherine Minto instructed by Nunes DeLeon and Scholefield Attorneys-at-law for the Claimant

Civil Procedure — Application for permission to file defence out of time — CPR 10.3(9), application to enter default judgment — CPR CPR 12.3(1), CPR 12.3(6)

N CHAMBERS

Master T. Mott Tulloch-Reid (Ag)

1 There are two applications before me. One application was filed by the Defendant seeking permission to file her defence to the claim out of time and for time to serve the application to be abridged. The application is supported by two affidavits sworn to by Mrs Kimberley Clarke. The application and supporting affidavit were both filed on May 2, 2019 and the supplemental affidavit was filed on September 17, 2019. The Claimant has also filed an application. She wants judgment in default of defence to be entered in favour of the claimant and a date set for damages to be assessed. That application along with the supporting affidavit sworn to by Ms Catherine Minto, was filed on June 19, 2019.

2 The issue of abridging time to serve the Defendant's application appears to be a non-issue as Ms Minto did not raise it and in any event she was very prepared to answer the submissions raised by Ms Fletcher on behalf of the Defendant. Both counsel agreed that their submissions on the issue concerning the extension of time to file defence would be the same as those they would make concerning the application to enter default judgment and it was agreed by all that the outcome of the application for extension of time to file defence would determine the issue regarding the entering of default judgment against the defendant. The analysis of the issues will therefore focus on the Defendant's application to extend time to file defence.

3 Part 10.3(9) of the Civil Procedure Rules (“CPR”) provides that

“The defendant may apply for an order extending time for filing a defence”.

The Rules do not indicate what is to be taken into account by the judge when making that determination as to whether or not to allow that extension of time. Ms Fletcher has directed me to the decision of The Attorney General of Jamaica and Western Regional Health Authority v Rashaka Brooks Jnr (a minor) by Rashaka Brooks Senior (his father and next friend) [2013] JMCA Civ 16. In that case, the Honourable Mr Justice Brooks at paragraph 14 indicated that although the CPR do not provide any guidelines that should assist the Judge in making that decision, the court is to have regard to the overriding objective, which enables the court to deal with the cases justly.

4 In the case of Fiesta Jamaica Ltd. v National Water Commission [2010] JMCA Civ 4, the Court of Appeal adopted the decision of Lightman J in Commissioner of Customs and Excise v Eastwood Care Homes (Ilkeston) Limited and ors [All England Official Transcripts (1997–2008) delivered 19 January 2000] held that in applications such as this, the Court, in dealing with the case justly, should consider the following:

Although Lightman J highlighted the above noted factors as the factors that should be considered, he also said that

“it was no longer sufficient to apply a rigid formula in deciding whether an extension has to be granted. Each application has to be viewed by reference to the criterion of justice.”

I believe it is important to highlight this particular aspect of the reasoning of Lightman J because has impacted on my decision.

• (a) The length of the delay;

• (b) the reason for the failure to comply with the prescribed time;

• (c) the prejudice that the Claimant will suffer because of the delay;

• (d) the effect of the delay on public administration;

• (e) the merits of the appeal (in this case I would say the merits of the defence);

• (f) the importance of complying with time limits; and

• (g) the resources of the parties.

Who is to swear the affidavit of merit?

5 It has become common practice that the affidavit supporting the application contains some attempt by the Defendant to demonstrate that he/she has a defence with merit and to exhibit to that affidavit, a draft defence to strengthen that position. In the case before me, this has been done. Ms Minto however takes issue with the affidavit as it was deponed to, not by one of the police officers who is alleged to have caused harm to the Claimant but by Mrs Kimberly Clarke, an attorney-at- law in the Attorney General's Chambers.

6 Mrs Clarke in her affidavit seeks to explain the reason for the delay in filing the defence. She says that the claim form and particulars of claim were served on the Defendant on March 22, 2019. Beginning on April 1, 2019 attempts were made to obtain instructions from the Office of the Commissioner of Police but up to May 2, 2019 when the application was filed, those attempts had proven futile. In light of the fact that the defence was to be filed and served by May 3, 2019 and as it appeared they would not be able to meet the deadline, the application seeking permission was made.

7 Of significance to me in the explanation given by Mrs Clarke is that at paragraph 10 she indicated that the Commissioner of Police in giving the Director of State Proceedings instructions would first have to seek instructions from the police officers against whom the allegations were made and that because of the passage of time between the incident and the date of the filing of the claim form, it was not likely that the deadline to file the defence would be met. On September 17, 2019, 4 months later, the Defendant found herself in a better position as Mrs Clarke was able to depone to a Supplemental Affidavit which indicated that she was now in receipt of full instructions, which would enable her to put forward a full defence, if allowed to do so by the Court. In that affidavit she sets out the instructions received by the Director of State Proceedings (“DSP”) about how the incident happened, which at paragraph 3 of the Supplemental Affidavit, she says are within her knowledge and where they are not within her personal knowledge are true to the best of her information and belief and based on her review of the records of the Defendant's attorney-at-law.

8 Ms Minto objects to this course of action. Ms Minto is of the view that Mrs Clarke is not the proper person to swear the Affidavit of merit. The evidence should come directly from the person against whom the allegation is made. She says further that even if the Attorney is permitted to depone to the affidavit of merit, she should, in keeping with CPR 30.2(b)(i) indicate the source from which the averments came. I believe that Ms Minto, in her submissions was referring to CPR 30.3(2)(b) which provides as follows:

“…an affidavit may contain statements of information and belief where the affidavit is for use in any application for summary judgment under Part 15 or any procedural or interlocutory application, provided that the affidavit indicates -

• (i) which of the statements in it are made from the deponent's own knowledge and which are matters of information or belief; and

• (ii) the source for any matters of information and belief.

9 Ms Minto also relies on the case of Ramkissoon v Old Discount Co (TCC) Ltd (1961) 4 WIR 73 to support her position as it relates to the swearing of the affidavit. In that case, the affidavit that supported the application to set aside a default judgment, was supported by an affidavit sworn to by the appellant's solicitor and a statement of defence signed by counsel. The solicitor's affidavit did not purport to testify to the facts set out in the defence nor did he claim to have personal knowledge of the matters put forward to excuse the failure to deliver the defence. It was held on appeal, that the solicitor's affidavit did not amount to an affidavit stating facts showing a...