Clement Deslandes v The Commissioner of Police

JurisdictionJamaica
JudgeMaster N. Hart-Hines
Judgment Date16 July 2019
CourtSupreme Court (Jamaica)
Docket NumberCLAIM NO. 2014HCV04947
Date16 July 2019

[2019] JMSC Civ 133

In the Supreme Court of Judicature of Jamaica

CLAIM NO. 2014HCV04947

Between
Clement Deslandes
Claimant
and
The Commissioner of Police
1 st Defendant
Attorney General of Jamaica
2 nd Defendant

Mrs. Saverna Chambers instructed by George G. Soutar QC for the Claimant.

Mrs. Carian Freckleton-Cousins instructed by the Director of State Proceedings for the Defendants.

Civil procedure — Application by defendant to extend the time within which to file defence — Civil Procedure Rules, rule 10.3 — Application by claimant to strike out defendants' statement of case — CPR rule 26.3(1) — considerations for the Court.

Master N. Hart-Hines
1

There are two applications for the consideration of the Court. The first application is that of the defendants, filed on September 14, 2017, to extend the time within which to file their defence, pursuant to rule 10.3 of the Supreme Court of Jamaica Civil Procedure Rules 2002 (hereinafter “CPR”). The second application is that of the claimant, filed on September 28, 2018, for the defendants' application and statement of case to be struck out pursuant to rule 26.3(1) of the CPR.

Background and Chronology
2

The Claim Form and Particulars of Claim indicate that the claimant is owner of a 1983 Yamaha fiberglass boat with three engines and bearing serial number MX37030M83D and registration number GB 02417. The claimant alleges that “the first named defendant through his servants and/or agents have unlawfully detained or arrested” the said boat. The second defendant is sued by virtue of the Crown Proceedings Act. The claimant seeks an order for the return of the boat, or alternatively, he claims damages in the sum of USD$30,000, representing the cost of the boat, or alternatively, damages for conversion along with interest and costs.

3

The claimant alleges that on January 3, 2014, he journeyed to Nassau, Bahamas, where he bought the Yamaha fiberglass boat from one David Knowles. As proof of his ownership of the boat, he relies on a Bill of Sale dated January 3, 2014, a Registration Certificate, and a document headed “Condition of Licence”, all of which he said he received at the time of purchase. The Bill of Sale states that the boat was sold to the claimant by David Knowles for USD$30,000. The Registration Certificate states that the boat is owned by David Knowles, with an expiry date of March 31, 2014.

4

The claimant further alleges that on his return to Jamaica on January 7, 2014,

he encountered engine problems, and he received assistance from a fisherman, Ian Grey, who he left with the boat while he attempted to obtain the services of a mechanic. He claims that on January 11, 2014, Ian Grey informed him that police officers were seen on the boat. Since that date, the police have detained the boat and have refused to return it to him, despite written demands for its return on February 13, February 21 and March 7, 2014, and despite the aforementioned documents being furnished to the police.

5

Consideration of these applications necessitates an examination of the chronology of the events which are as follows:

  • 1. On January 11, 2014 the boat was detained by police officers attached to the Marine Division, Bowden, St. Thomas.

  • 2. On January 30, 2014 the documents were supplied to a Detective Corporal attached to the Morant Bay Criminal Investigation Branch.

  • 3. On February 13, February 21, and March 7, 2014 the claimant, through his Attorney-at-Law, made formal written demands to the Marine Police for the boat to be released.

  • 4. On October 22, 2014 the Claim Form and Particulars of Claim were filed.

  • 5. On October 28, 2014 the Claim Form and Particulars of Claim were served on the 2 nd defendant.

  • 6. On November 14, 2014, the 2 nd defendant filed a Request for Information.

  • 7. On December 19, 2014 the claimant filed Answers to the defendants' Request for Information, pursuant to rule 34.4 and rule 59.2 of the CPR. This was served on the the 2 nd defendant on December 22, 2014. The claimant's Answers indicate that the boat was detained by a Sergeant attached to the Marine Division, Bowden, St. Thomas, and that the aforementioned documents were supplied to a Detective Corporal attached to the Morant Bay Criminal Investigation Branch on January 30, 2014.

  • 8. On May 20, 2015 an Acknowledgement of Service and proposed defence were filed on behalf of both defendants. These were signed by an Attorney-at-Law instructed by the Director of State Proceedings, on behalf of the defendants.

  • 9. On July 31, 2015 another proposed defence was filed on behalf of the 2 nd defendant.

  • 10. Between May 2015 and September 2015 there was communication between the parties.

  • 11. On September 14, 2015 a letter was sent from the Attorney General's Chambers to Mr. George Soutar QC informing counsel that instructions had been received from the police that one David Leigh R. Knowles of the Bahamas had made a claim in respect of the boat.

  • 12. On August 12, 2016 a Requisition was issued by the Supreme Court Registry indicating that the Defence had been filed out of time. It is not clear whether this Requisition was issued to both parties.

  • 13. On March 31, 2017 a letter was received by the Registrar of the Supreme Court from the office of George Soutar QC referencing earlier correspondence in 2015 and requesting that a Case Management Conference be fixed.

  • 14. On August 22, 2017 a further Requisition was issued by the Supreme Court Registry indicating that a Case Management Conference could not be fixed as the Defence had been filed out of time.

  • 15. It is not clear whether the Requisition was issued to both parties. However, on September 14, 2017 a Notice of Application was filed on behalf of both defendants, along with an affidavit in support, seeking an order that the time within which to file their defence be extended.

  • 16. On September 14, 2017 an Acknowledgement of Service was also filed on behalf of both defendants.

  • 17. On November 9, 2017, an affidavit was filed on behalf of the claimant in response to the defendants' Application filed on September 14, 2017.

  • 18. On September 28, 2018 a Notice of Application was filed on behalf of the claimant, along with an affidavit in support, seeking an order that the defendants' application and statement of case to be struck out.

  • 19. The application was fixed for hearing on May 29, 2019. Insufficient time was allocated and the application was adjourned to July 1, 2019.

  • 20. On July 1, 2019 the application was heard.

The Application to extend time to file defence
6

The defendants' application indicated that the following orders are sought:

  • 1. That the Defence filed on July 31, 2015 be allowed to stand as filed.

  • 2. That the Acknowledgement of Service filed on the 14 th of September, 2017 be allowed to stand as filed.

  • 3. Cost of this Application to be cost in the claim.

  • 4. Such further or other relief as the Court deems just in the circumstances.

The Application to strike out defendants' application and defence
7

The claimant's application indicated that the following orders are sought:

  • 1. That the Notice of Application for Extension of time to file Defence, filed on September 14, 2017, not be heard and or granted.

  • 2. That the Notice of Application for Extension of time to file Defence, filed on September 14, 2017, be struck out.

  • 3. That the Acknowledgement of Service filed on the 14th day of September 2017, not be allowed to stand as if filed in time.

  • 4. That the Defendants' Statement of Case (Acknowledgement of Service and Defence) be struck out.

  • 5. Cost of this application to the Applicant.

  • 6. Such further or other relief as the Court deems just in the circumstances.

8

The claimant's application does not expressly state that leave is sought to enter judgment in default against the Crown. However, such relief would be a natural consequence of an order refusing the defendants' application (see rule 12.3 of the CPR).

Submissions on behalf of the Defendants
9

Counsel for the defendants, Mrs. Freckleton-Cousins, first addressed the issue of the delay in filing the acknowledgement of service and their proposed defence. Counsel submitted that the delay was due to an error made by counsel who previously had conduct of the matter, as to the calculation of the time in which to file these documents. Mrs. Freckleton-Cousins further revealed that counsel was under the mistaken belief that he was able to avail himself of Part 59 of the CPR, which would have extended the time for filing the acknowledgement of service and defence.

10

Mrs. Freckleton-Cousins submitted that there was no requirement for counsel who previously had conduct of the matter to swear to an affidavit explaining the delay, and she further submitted that Mrs. Fuller-Barrett was able to assess the reason for the delay from reviewing the file. Counsel further submitted that based on discussions between counsel for the parties and based on a request by counsel for the claimant for a hearing date for the Case Management Conference, it seemed apparent that neither party appreciated that the acknowledgement of service and defence were filed out of time.

11

Counsel Mrs. Freckleton-Cousins posited that there was merit in the defence and relied on paragraphs 6, 7, 8 and 9 of the defence, which explained the reason for the initial detention of the boat, and the reason for the continued detention of the boat after the formal demand was made for its release to the claimant. In essence, the proposed defence is that there was reasonable and probable cause to detain the boat on suspicion that it was used in drug trafficking after knitted bags were observed being thrown from the boat. Further, the draft defence states that the police believed that the boat was under imminent threat of being looted and damaged and it was necessary to detain it to prevent this and prevent the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT