D.R Foote Construction Company Ltd v Crooks (Lester)

JurisdictionJamaica
CourtCourt of Appeal (Jamaica)
Judge FORTE. P: , WALKER. J.A. , SMITH, J.A.:
Judgment Date31 July 2003
Neutral CitationJM 2003 CA 33
Judgment citation (vLex)[2003] 7 JJC 3101
Date31 July 2003
IN THE COURT OF APPEAL
COR:
THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE WALKER, J.A THE HON. MR. JUSTICE SMITH, J.A
BETWEEN
D. R. FOOTE CONSTRUCTION CO. LTD.
RESPONDENT
AND
LESTER CROOKS
APPLICANT
Judith Clarke
Stephen Shelton Don O. Foote

CIVIL PROCEDURE - Motion - Dissmissal for want of prosecution - Negligence - Motor vehicle accident - Assessment of damages for property and personal injuries - Interlocutory judgment - Whether cause of action estoppel should have been raised in second suit

FORTE. P:
1

I have read the judgments, in draft of Walker and Smith, JJA which were complementary of each other. The reasons and conclusions expressed therein are consistent with mine. Consequently, I have nothing to add.

WALKER. J.A.
2

On March 28, 2003, we granted the applicant's Motion to dismiss this appeal for want of prosecution and awarded costs to the applicant to be agreed or taxed. We promised then to give our reasons for so doing at a later date and now do so.

3

The applicant averred that on or about August 2, 1997 he sustained injuries, suffered loss and damage and incurred expenses as a consequence of a motor vehicle accident involving the applicant's motor car driven by himself and another motor vehicle driven by Desmond Chasdy and of which the respondent was the registered owner.

4

On October 20, 1998 by common law suit no. CL 1998/C-356 the applicant sued, both Chasdy and the respondent company.

5

On February 5, 1999 the respondent company having entered an Appearance to this suit but not having subsequently filed a Defence, the applicant (as plaintiff) obtained an interlocutary judgment in default with an order for damages to be assessed and costs to be agreed or taxed.

6

In the meantime the applicant claimed under an insurance policy he carried with the United General Insurance Company Limited for compensation in respect of property damage and on October 2, 1997 the insurance Company paid compensation amounting to $505,000.00 to the applicant.

7

On May 18, 1999 by common law suit of 1999 No.C-147 and unknown to the applicant's present attorneys-at-law, the Insurance Company sued in the applicant's name to recover from the respondent company the.' sum it had paid over to the applicant in satisfaction of his insurable claim for property damage. On July 25, 2002 the applicant obtained a judgment in this suit in an amount of $629,450.00.

8

Subsequent to the entry of the default judgment in suit No. C.L. 1998/C-356 the respondent company filed a summons to set aside that judgment. That summons was heard and dismissed on July 20, 2001 toy Cole-Smith J. (Ag.) who on the same date granted the respondent company leave to appeal that order of the court. On July 26, 2001 the respondent company filed notice and grounds of appeal in the natter.

9

On February 26, 2002 the application for assessment of damages in suit No. CL. 1998/C-356 came on for hearing in the Supreme Court at which time it was adjourned sine die pending The outcome of the respondent company's appeal.

10

On January 27, 2003 the applicant filed the present Motion to strike out the respondent's appeal for want of prosecution.

11

On February 27, 2003 the respondent filed a Summons for extension of time for filing the Record of Appeal herein.

12

The three criteria by which we have been guided in our deliberations are set out in Granville Gordon and another v William Vickers and another [1990] 27 JLR 60. There in the course of delivering the judgment of the court Rowe P said at pp 63-64:

"There is a discretionary power in this Court to enlarge the time within which an appellant must file the Record of Appeal - Rule 30(1) and Rule 9 of the Court of Appeal Rules, 1962. This discretion must be judicially exercised and with care so as to ensure that no injustice is done to any of the parties in the case - Wright v Salmon [1964] 7 W.I.R. 50. It is intended that the Rules of the Court should be scrupulously obeyed and that the time schedulers (sic) provided should be maintained. Lord Guest in delivering the judgment of the Privy Council in Ratnam v Cumarasamy [1964] 3 All E.R. 933 at 935 said:

'The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation'.

Applications for extension of time to file the Record of Appeal have been considered by this Court on numerous occasions. In City Printery Ltd. v. Gleaner Co. Ltd. [1968] 10 J.L.R 506, there was a lapse of two years between the filing of the Notice of Appeal and the application by the respondent to have the appeal dismissed for want of prosecution, in that the Record of Appeal had not been filed. The court held that the delay was inordinately long and was not excused by the solicitor's explanation that staff changes and a change of office had occasioned the delay. Reliance was placed upon the judgment of Lord Guest in the Ratnam (supra) case. Brown v Neil [1972] 12 J.L.R. 669 concerned the extension of time for the filing of Notice and Grounds of Appeal. It was held that:

'Where the Court of Appeal is moved to exercise its discretion in favour of an applicant in order to enable him to file notice and grounds of appeal out of time, it must be shown:

  • (i) that at all material times there was, in the applicant, a serious continuing intention to prosecute his appeal;

  • (ii)...

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