Chasrose Ltd v Kingston and St. Andrew Corporation
| Jurisdiction | Jamaica |
| Judge | SYKES J. |
| Judgment Date | 11 July 2011 |
| Judgment citation (vLex) | [2011] 7 JJC 2501 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2003 HCV 1026 |
| Date | 11 July 2011 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIMS AGAINST PUBLIC BODIES - APPLICATION FOR SUMMARY JUDGMENT – APPLICATION FOR EXTENSION OF TIME TO FILE ADDITIONAL WITNESS STATEMENTS – COSTS – RULE 64.6
[1] This matter came on for trial on Monday, July 11, 2011. What was expected to be a trial quickly became a vigorous summary judgment application by Mrs. Rose Bennett-Cooper on behalf of the Kingston and St. Andrew Corporation (“KSAC”), the defendant. Not to be outdone, Chasrose applied for an extension of time to file further witness statements and to seek additional documentation to support its claim. The court dismissed the summary judgment application and granted the application for extension of time. An oral judgment was delivered on July 14 with written reasons to follow. These are the reasons for judgment.
[2] Undoubtedly, Chasrose Ltd (“Chasrose), the claimant, was taken off guard by this development and thereafter was scrambling to make up ground in response this unexpected attack. It needs to be pointed out that Mr. Keith Bishop was not counsel who represented Chasrose in the earlier years. This case is now entering its ninth year. He recently came into the matter after the pleading and witness statements were already in place.
Consequences of failing to identify the issue early
[3] The submissions that have consumed four days of valuable time allocated to trial ought not to have happened, at this stage of the process, if the issues were properly identified earlier. In Evans v James [2001] C.P. Rep 36, the Court of Appeal of England and Wales deprecated this situation. This court wholly agrees with the comments of the President cited below. In Evans , the case came on for trial having been through the case management regime. On the first day of trial, the judge asked counsel for the defendant to indicate how he (counsel) intended to resist the claim because he (the judge) having read the pleadings and the witness statements could not see how the defendant could succeed. After submissions, the judge entered summary judgment against the defendant who appealed. The trial judge's decision was upheld but the President was less than pleased with process leading up to trial. His Lordship said:
This case however discloses a number of unsatisfactory features, principally the failure of case management at the interlocutory stage. The judge rightly referred in his judgment to the importance of active management and Rule 1.4 (2) (C). That management should however have been at a much earlier stage and before witnesses were called to attend court. Steps should have been taken to avoid such an unsatisfactory position by earlier identification of the issues and the strength of the defendant's case. A more rigorous identification of issues at an earlier stage ought to have elicited the significance attributed by the defendant to the telephone conversation with the deceased's solicitor and the question of the incapacity of the deceased and the extent of the ostensible authority of the deceased's solicitor. This inquiry as to the issues should have been conducted before Judge Gaskell at the directions hearing on the 23rd February 1999. I appreciate that both counsel were taken by surprise at the hearing by Judge Moseley suggesting that there was no reasonable defence to the claim. They had little time to formulate their arguments but the judge was not alerted by Mr Griffiths for the defendant to the importance attached to the telephone conversation nor, following from that, the impact of the deceased's lack of mental capacity upon any reliance placed upon that conversation.
[4] This passage makes it abundantly clear that the case management procedure is not a formality to be engaged in as a meaningless ritual that must be endured on the route to trial. The case management is designed to be a rigourous process. Probing questions must be asked. It is not sufficient for a litigant to say his case is so and so. The process must involve an enquiry into how the litigant intends to prove the point in issue. If it cannot be proved by relevant and legally admissible evidence then what is the point of moving forward? It is by rigourous case management that cases which have no real prospect of either being successfully prosecuted or defended are identified and removed.
[5] The Three Rivers litigation is a particularly striking example of failed case management. The result was significant and colossal wasted funds – eighty million pounds to the Bank of England alone, yes eighty million. Adrian Zuckerman in his article, A Colossal Wreck – The BCCI Litigation C.J.Q. 2006, 25 (July), 287 – 311, chronicles the consequences of the refusal by the House of Lords to conclude that after an exhaustive inquiry by Bingham LJ (as he was at the time) which generated a two hundred page report and eight large appendices which contained contemporaneous documents from the Bank of England, there was unlikely to be any new evidence or document to be unearthed that would justify the pursuit of the Bank through the courts. The decision of the House in Three Rivers District Council v Governor and Company of the Bank of England (No. 3) [2003] 2 A. C. 1., on the summary judgment issue, precipitated a two hundred and fifty six day trial before Tomlinson J. After one hundred and thirty days, the learned judge raised polite enquiries about the claimants' case. The trial judge had great difficulty in seeing how the claimant intended to prove the case. He was assured that proof would come. It took another one hundred and twenty six days before the claimants', without getting to the end of their case, accepted that they could not make good the allegations. Thus twelve years of litigation at a cost of eighty million pounds to the bank came to an end. What was remarkable about the case was that it did not appear that anyone was able to suggest what other document, or indeed evidence there might possibly be that Bingham LJ had not already unearthed. Before Three Rivers arrived in the House, the summary judgment issue was decided in favour of the bank. Clarke J who struck out the claim and the majority of the Court of Appeal shared the view that Bingham LJ's inquiry was so thorough that the probability of anyone finding out something that he had not was rather remote. In the House, two of their Lordships took the same view. By a bare majority the House rejected these views and held out the hope that the allegations should be tested a trial.
[6] Had the case management process been rigourous the problems now being encountered by Chasrose would have been unearthed. This court must accept responsibility because it is this court as presently constituted who conducted the pre-trial review. Had the pre-trial review been as thorough as Evans indicates, then we would not be in this present position. It has taken eight years and several thousand dollars only to discover that the case is not ready for trial.
[7] The learned President, in Evans , continued his rebuke by adding:
I do not suggest that a case that ought to be concluded in half a day should continue in order to call witnesses but the situation which arose before Judge Moseley whereby witnesses are waiting to be called and the case is summarily dismissed must not be allowed to happen again. There is now a greater burden upon the Bar, solicitors and judges and district judges to exercise proper case management. Apart from anything else, it is a disproportionate use of appellate time for this Court to have to spend a day to review a county court decision to dispose summarily of a relatively small claim .
[8] Wright J, for his part, in his judgment gave an indication of the intended rigourous nature of case management conferences under the new litigation regime. The hard questions need to be asked and answered by all concerned. It is no longer, “Let us go to trial and see what turns up” or a more common variant, “The witness can be asked to expand on his witness statement and he may provide evidence to fill the gap that now exists” or worse, “When the opposing side and his witnesses are cross examined, some evidence may emerge that supports the case of the claimant.”
[9] In the present case, witnesses for both sides were in attendance and those that were not in attendance were within easy reach. The court wishes to say that as inconvenient as the timing was, having regard to the far reaching nature of the submissions, the court considered it a necessary exercise if for no other reason than that it has certainly brought into sharper focus some important sub-issues which ought to be resolved, if possible, by affirmative evidence rather than by inference from testimony from witnesses who may well be suffering from fading memories regarding a sequence of events that took place over fourteen years ago. Additionally, while the court agrees with Mr. Bishop that counsel for the defendant ought to have taken the point sometime ago (and she conceded as much), the legal point was a matter of substantive law which would have to be given effect once it became apparent. It was not a procedural defence akin to a limitation defence.
[10] The present case is sharp reminder of the clear distinction between private law claims against private persons and private law claims against statutory bodies. As will be seen, where a statutory body is shown to have acted outside of the statute then any resulting contract will be held to be of no legal effect even if the parties have acted in reliance on it. Indeed, in their text, Sealy, LS and Hooley RJA, Commercial Law , (4 th ) (OUP) (2009), the learned authors state:
A commercial lawyer cannot afford to ignore the impact of public law on commercial...
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