Collins, Rohan and Sonia Collins v Wilbert Bretton (on behald of Claudette Davis-Bonnick)

• Jurisdiction: Jamaica
• Judge: JONES, J. (Ag.)
• Judgment Date: 15 July 2003
• Judgment citation (vLex): [2003] 5 JJC 2601
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. E 227 OF 2002
• Date: 15 July 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. E 227 OF 2002

BETWEEN

ROHAN COLLINS

1 ^ST APPLICANT

SONIA COLLINS

2 ^ND APPLICANT

AND

WILBERT BRETTON (On behalf of Claudette Davis-Bonnick)

RESPONDENT

CIVIL PROCEDURE - Time limits - Whether court should allow applicant to reopen it's case after hearing ended but prior to judgment being delivered - Overriding objective - Civil Procedure Rules 2002, Rules 1.1(1), 1.1(2)(a) and 1.1(2)(b)

JONES, J. (Ag.)

1 This court has made no secret of its growing impatience with the attitude of litigants who through either inadvertence or just plain neglect have refused to approach their cases with the necessary dispatch and expedition. These concerns have found expression in the new CPR 2002, which, subject to the overriding principle that justice must be done, has taken a position against the unnecessary waste of time and resources that has plagued civil litigation in the courts. It is against this background that the present action has been brought by the applicants in this case.

2 On May 6, 2003, the respondent and the 1 ^st applicant came before this court on a Vendor and Purchaser Summons requesting a number of declarations. The 2 ^nd applicant did not appear and the 1 ^st applicant appeared in person without his attorney. It was apparent from the record that his attorney was still in the matter as there was no notice for change of attorney filed. The court allowed the 1 ^st applicant time to ascertain the reason for his attorney's absence but none was forthcoming. The court made the usual enquiries about the firmness of the 1 ^st applicant's instructions and was given the assurance that all arrangements had been made to satisfy his attorneys'. In addition to the absence of their attorney the applicants filed no affidavit in response to the respondent as is required in these matters. The court took the view that there was no good reason for the adjournment and requested the 1 ^st applicant to proceed on his own behalf. At the end of the respondent's case the 1st applicant chose not to produce an affidavit or to give oral evidence on his behalf - in effect closing his case. Judgment was reserved for a date to be announced.

3 On the following day, May 7, 2003, the 1 ^st applicant filed a notice of change of attorney and an application under Part II of the CPR 2002 for court orders requesting:

"That permission be granted to the defendants herein to present their response to the Honourable Mr. Justice Roy Jones"

4 The grounds for this request were that:

• 1. "The justice of the case demands that all the facts and evidence be before the court for the just disposition of the matter in accordance ivith the overriding objective pursuant to rule 1.1 (1) and 1.1 (2) (a) and 1.1 (2) (b) of the Civil Procedure Rules 2002.

• 2. The defendants' failure to be ready on 6 ^th May 2003 was due to their impecuniosity; their inability to pay the fees of their previous attorneys at law which circumstance was completely outside of their control.

• 3. That the court is empowered to deal with the case at any time it deems appropriate pursuant to rule 2.7

5 In his affidavit in support the 1 ^st applicant said:

• "4. ...That on the 5th day of May, 2003, I received a call from a Secretary of Gifford, Thompson & Bright informing me that my case was set for hearing the following day and as I did not pay their retainer in full no Attorney-at-Law null go to Court for me. This zoas the first time I was being advised of the Court hearing.

• 5. That on the 6 day of May, 2003 I attended the hearing of this matter. I was not able to adequately explain why I was without representation. I could not afford to pay the legal fees of my previous Attorneys-at-Law. This ivas due to financial hardships facing myself and my family which were beyond my control.

• 6. On the 7 day of May 2003, I retained the services of Attorneys-at-Laiv herein, whose fees I can afford. It is always been my intention to defend and resist the Plaintiffs claim. I was prevented from doing so because of my impecuniosity."

6 In addition to the above affidavit the 1 ^st applicant filed an affidavit in response to the Vendor and Purchaser Summons together with numerous exhibits attached thereto. In a word, he was now ready to proceed with his matter.

7 Simply put, the issue is whether or not this court should exercise its discretion to allow the applicant - in effect to reopen his case, and be given a second chance - to give evidence in response to the respondent's affidavit after the hearing has ended but prior to judgment being delivered?

8 Although this case was filed before the coming into being of the Civil Procedure Rules 2002, the rules and practice directions there under makes it applicable to this case. As a result, although numerous authorities were cited by both attorneys in this matter, they were all decided prior to the advent of the new rules and are by and large irrelevant to this matter. In Biguzzi vs. Rank Leisure [1999] 4 All ER 934 the United Kingdom Court of Appeal considered the resulting effect of the new rules in the U.K governing civil procedure during the transition period held that:

"Where the CPR applied, earlier authorities on matters of civil procedure were no longer generally of any relevance. Thus, although a judge should not ignore the fact that parties had previously been operating under a different regime, he did not have to make the same decision as would have been made previously"

9 It is with that in mind that we can consider the application of the CPR 2002, Part I to this case. The CPR r.1.1 provides as follows:

• (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

• (2) Dealing justly with a case includes:

  • (a) ensuring, so far as is practicable, that the parties are on an equal footing and are not prejudiced by their financial position;

  • (b) saving expense;

  • (c) dealing with it in ways which take into consideration -

    • (i) the amount of money involved;

    • (ii) the importance of the case;

    • (iii) the complexity of the issues; and

    • (iv) the financial position of each party;

  • (d) ensuring that it is dealt with expeditiously and fairly; and

  • (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

10 r.1.2 provides that:

11 The court must seek to give effect to the overriding objective when it:

• (a) exercises any discretion given to it by the Rules; or

• (b) interprets any rule.

12 It is apparent from the new rules that the court is no longer restrained to consider only the position of the actual parties in the litigation before it, but must also consider the effect of the conduct of the parties, on the administration of justice as a whole. With this in mind it is important that the courts do not appear to condone defaults where parties do not comply with time limits.

13 Mrs. Taylor-Wright for the respondent rightly argued that there must be some finality to the litigation as a matter of public policy. With this I agree. It is trite to say that a party must litigate all causes of action arising from the same event or are closely associated to that event in one proceeding: see Henderson vs. Henderson [1843-60] All ER Rep 378. Sir James Wigram V C in giving the judgment of the court said at pages 381–382:

'In trying this question, I believe I state the rule of the Court correctly, wlien I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but xvhich was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon xvhich the Court, was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to tire subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

14 However, this rule is not cast in stone as in the recent House of Lords decision in Johnson vs. Gore Wood & Co [2001] 1 All ER 481 the House in assessing the decision in Henderson vs. Henderson (supra) held that

"although the bringing of a claim or the raising of a defence in later proceedings might, without more, amount to abuse if the court was satisfied that the claim or defence should have been raised in earlier proceedings, it was wrong to hold that a matter should have been raised in such proceedings merely because it could have been. A conclusion to the contrary would involve the adoption of too dogmatic an approach to what should he a broad, merits based judgment which took account of the public and private interests involved and the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party was misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised before. It unis not possible to formulate any hard and fast ride to determine whether, on given facts, abuse was to be found or not. Thus, while lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised tlxen, it xoas not necessarily irrelevant, particularly if it appeared that the lack of funds had been caused by the party against...