Douglas, Amos v Calvert Falloon & Roy Christie

• Jurisdiction: Jamaica
• Judge: ANDERSON: J
• Judgment Date: 06 December 2002
• Judgment citation (vLex): [2002] 12 JJC 0601
• Court: Supreme Court (Jamaica)
• Date: 06 December 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA IN COMMON LAW

Miss Racquel Dunbar instructed by McGlashan Robinson & Company for Defendant/Applicant.

Mrs. Gloria Langrin and Mr. Hugh Hyman for Plaintiff/Respondent.

SUIT NO. C.L. D 057 OF 1999

BETWEEN

AMOS DOUGLAS

PLAINTIFF

AND

CALVERT FALLOON

1 ^ST DEFENDANT

AND

ROY CHRISTIE

2 ^ND DEFENDANT

CIVIL PROCEDURE - Dismissal for want of prosecution - Whether the matter should be dismissed due to plaintiff's failure to take further action since filing the claim - Judicature (Civil Procedure Code) Law, s. 244

ANDERSON: J

1 This is an application on behalf of the defendant Clevert (on the court docket noted as "Calvert") Falloon for an order that this action should be dismissed for Want of Prosecution, either under section 244 of the Judicature (Civil Procedure Code) Law, or under the court's inherent jurisdiction. The application was filed on the 11th May 2001 and came for hearing first on the 28 November 2001 when it was adjourned to the 25 February 2002, and continued on March 14, 2002. The Summons was supported by the affidavit of Racquel Dunbar, attorney-at-law, and associate in the law firm McGlashan Robinson, the attorneys-at-law on the record for the defendants, while the plaintiff's attempts to resist this application, were supported by an affidavit of his attorney-at-law on the record, Mrs. Gloria Langrin.

2 Miss Dunbar depones that the action arose out of an accident which had occurred on the 5th of February 1995 and was commenced by Writ of Summons dated the 18th May 1999. She depones further, that the Statement of Claim was filed by the plaintiff on the 25th May 1999 and that since the filing of the Statement of Claim, the plaintiff had taken no further steps in these proceedings.

3 She states that the defendants in this action are prejudiced due to the inordinate and inexcusable delay in prosecuting the action and that they would continue to be so in the event of any further delay in that a substantial period had elapsed since the accident. The defendants' recollections, as well as those of potential witnesses of the event, would be seriously diminished. Further, she claims that the plaintiff had claimed special damages which attract interest to include the period spanning the date of the accident to the date of judgment. The plaintiff has also claimed general damages the value of which would have been increased in line with the consumer price index up to the time when judgment is given making the defendant liable to a much increased level of damages, that may indeed be in excess of his insurance policy limits. In the circumstances the affidavit prayed that the Honourable Court would grant an order in terms of the summons filed.

4 Miss Dunbar for the applicant in oral submissions urged upon the court that the principles enunciated in the relevant authorities, all supported a view that the court should exercise its discretion in favour of dismissing the action pursuant to Section 244 of the Judicature (Civil Procedure Code) Law. The section provides as follows:

If the plaintiff, being bound to file a statement of claim and deliver a copy thereof, does not file the same and deliver such copy within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Judge to dismiss the action, with costs, for want of prosecution; and on hearing such application the Court or judge may, if no statement of claim shall have been filed and a copy thereof delivered, order the action to be dismissed accordingly or may make such other order on such terms as the Court or Judge shall think fit.

5 It was submitted for the defendant, that the period of ten months between the filing of the writ to the filing of the application to dismiss for want of prosecution was clearly in breach of section 244, and the defendant was entitled to apply for the dismissal for such delay, particularly where the plaintiff had waited for so long after the incident to file his action. Counsel for the defendants pointed out that the court also has an inherent jurisdiction to dismiss for want of prosecution, and indeed, when one looks at the Supreme Court Practice. 1997, Volume 1, Order 25 r 1(4), it is noted that apart from the express provisions set out in the Supreme Court Rules, "the court has an inherent excessive delay in the prosecution of the action. Generally speaking, the same principles are applied whether the court is acting under its express power or under its inherent jurisdiction".

6 She submitted that the principles to be applied in matters of this nature were stated clearly in the trilogy of cases heard together, but known by the name, Allen v Sir Alfred McAlpine & Sons Ltd. (1968) 1.A.E.R. 543 and approved in the later case of Birkett v James (1977) 2 All E.R. 801 , per Lord Diplock, at page 805, citing the then current issue of the Supreme Court Practice:

The power to strike out should be exercised only where the Court is satisfied (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the Court or conduct amounting to abuse of the process of the Court; or (2) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and such delay will give rise to a substantial risk that it is not possible to have a fair trial or is such as is likely to cause or have caused serious prejudice to the defendants either as between each other or between themselves and a third party.

7 This leading authority on the subject, was followed and applied by the Jamaican Court of Appeal in Warshaw v Drew (1986) 45 W.l.R. page 221, in a decision later upheld by the Judicial Committee of the Privy Council at 1990 Vol 38 W.I.R. 221.

8 In the instant case, the application on behalf of this defendant purported to call into question, the second of the two bases. The defendant must therefore show both inordinate delay and risk of prejudice to the possibility of a fair trial. In this regard, she submitted that Tabata v Hetherington & Anor., Times Report of December 15, 1983, defined "inordinate delay" as "a period of time which had elapsed which was materially longer than the time which was usually regarded by the courts and the profession as an acceptable period of time." (Per Cumming-Bruce L.J.). It was counsel's submission that this case satisfied that criterion.

9 It was her further submission that prejudice to the defendant may take many forms, and that in fact, "the question of the possibility of a fair hearing, and prejudice to the Defendants are alternative principles upon which courts act in deciding how to exercise its discretion". (Per Forte J.A. in West Indies Sugar v Minell (1993) 30 J.L.R. 542 at page 545.) In this case, the defendant Falloon did have the suit hanging over his head for a considerable period before the filing of the writ, but the time between the Entry of Appearance and the issue of the Summons to dismiss, was only ten months.

10 Miss Dunbar submitted that the defendant does not have to allege prejudice in his application as, where there is evidence of inordinate delay, the court could find that this, in and of itself, could amount to prejudice. In support of...