Earl Martin v Richard Burgher

• Jurisdiction: Jamaica
• Judge: Wolfe-Reece, J
• Judgment Date: 21 May 2020
• Date: 21 May 2020
• Docket Number: CLAIM NO. 2009HCV01956
• Court: Supreme Court (Jamaica)

[2020] JMSC Civ 101

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISON

CLAIM NO. 2009HCV01956

Between

Earl Martin

Claimant

and

Richard Burgher

Defendant

Mr. Philip Bernard instructed by Bernard & Co for the Claimant

Mr. Kevin Williams and Ms. Anna-Kay Brown instructed by Messrs Grant, Stewart, Phillips & Co for the Defendant

CIVIL PROCEDURE RULES (CPR) 2002 — APPLICATION TO STRIKE OUT — FAILURE TO COMPLY WITH ORDERS OF THE COURT — WITNESS STATEMENTS FILED AFTER SPECIFIED DATE — PREVIOUS BREACHES OF COURT ORDERS — APPLICATION FOR RELIEF FROM SANCTIONS — APPLICATION TO AMEND STATEMENT OF CASE.

IN CHAMBERS

Wolfe-Reece, J

INTRODUCTION

1 The seminal issue before the Court is whether the Defendant's statement of case should be struck out for failure to comply with Pre-Trial Review Orders made by the Honourable Mr. Justice K Anderson on the 5th May, 2017.

2 The Court is faced with considering two competing applications. On the one hand, the Defendant, who is in breach of the said orders of Anderson J, has filed a Notice of Application for Court Orders on the 24 ^th June, 2019, seeking permission for his Amended Defence and Counterclaim, Witness Statements and Notice of Intention to Rely, (listing 35 documents), which were all filed out of time to stand as properly filed.

3 On the other hand, the Claimant who is aggrieved by the Defendant's delay has filed a Notice of Application for Court Orders on the 25 ^th June, 2019 seeking an order that the Defendant's statement of case be struck out for failure to comply with the court's orders or in the alternative, an order that those documents which were filed by the Defendant after the dates stipulated by Anderson J be struck out.

BACKGROUND

4 The competing applications before the Court have their genesis in the alleged breach of a contract for carpentry works carried out at the Defendant's premises situated at 17 Edgecombe Avenue, Kingston 6 in the parish of Saint Andrew which resulted in the Claimant filing a Claim Form and Particulars of Claim on the 8 ^th day of April 2009 for unpaid monies owed by the Defendant to the Claimant being the sum of $1,708,796.55 plus interest at the commercial rate of 22% per annum, court fees and Attorney's fees totalling $2,096,731.79.

5 The Defendant filed a Defence and Counterclaim on the 10 ^th July, 2009 wherein he refuted the Claimant's claim and instead argued that the Claimant failed to complete the work satisfactorily. The Defendant counterclaimed on the basis that due to the Claimant's negligent carpentry work, he sustained loss, damage and has incurred expense. The Defendant therefore counterclaimed for damages in the sum of $130, 000.00 plus interest, damages for breach of contract and/or negligence or alternatively damages for costs of rectifying all defects.

6 The matter was referred to mediation on the 17 ^th January, 2011 however, the mediation was postponed because the Claimant's initial attorney ceased representing him. Mediation was set for the 29 ^th April, 2014 when the Claimant failed to attend the mediation. As a result, the Defendant filed an application for the Claimant's case to be struck out.

7 This application to strike out the Claimant's case was withdrawn at the Case Management Hearing on the 23 ^rd day of November, 2015 where Bertram-Linton, J made the following orders:

• 1. Defendant's application to strike out the Claimant's statement of case is withdrawn at the request of the applicant

• 2. Costs for the application is awarded to the defendant summarily assessed at $14,000.00

• 3. The Claimant is permitted to file his defence to counter on or before 31 ^st December, 2015

• 4. The Claimant is permitted to file an Amended Claim Form and Particulars on or before 31 ^st December, 2015

• 5. The Defendant is permitted to file documents in response to the Claimant's amendments on or before 31 ^st January 2016

• 6. Trial scheduled for 31 ^st May 2017 to 1 ^st June 2017

• 7. Witnesses Limited to 3 for each side

• 8. Trial by Judge alone

• 9. Standard Disclosure on or before 31 ^st July, 2016

• 10. Inspection of documents on or before 30 ^th September, 2016

• 11. Witness statements to be filed and exchanged by 30 ^th November, 2016

• 12. Listing Questionnaire to be filed by 30 ^th November, 2016

• 13. Pre-Trial Review on 20 ^th February, 2017 at 10:00 a.m. for ¹/₂ hour

• 14. Claimant to prepare, file and serve these orders

• 15. Costs for the Case Management Conference to be costs in the claim

8 The Court record indicates that the Claimant largely complied with the Case Management Orders of Bertram-Linton J with the exception his failure to comply with the Order for Standard disclosure by filing his List of Documents a few days late.

9 The Defendant filed a List of Documents on the 27 ^th July, 2016 where he disclosed 9 documents. The Defendant did not file an Amended Defence and Counterclaim. He also failed to file the witness statements of the witnesses he intended to rely on at the trial.

10 The Pre-trial review came before the Honourable Mrs Justice L. Palmer Hamilton on the 20 ^th February, 2017 when she heard a joint application for extension of time to fully comply with the Case Management Orders dated 23 ^rd November, 2015. The extension was granted to the 24 ^th March, 2017. Palmer Hamilton J also adjourned the Pre Trial Review to 28 ^th April, 2017.

11 The Pre-trial review came before The Honourable Justice Mr. K. Anderson to on 28 ^th April, 2017 and May 5, 2017. The record does not indicate the reason for the adjournment on the April 28, 2017. However, on the 5 ^th May, 2017, Anderson J made the following orders:

• 1. Trial of this Claim shall be held on July 8–11, 2019 and any trial dates earlier ordered by this Court shall stand as vacated.

• 2. The Claimant shall file a core bundle and shall file and serve an index to that core bundle by or before June 24, 2019.

• 3. The parties shall respectively file and serve a bundle of Skeleton Submissions and Authorities and shall do so by or before July 1, 2019.

• 4. Upon trial of this claim the parties shall be limited to examination in chief and cross examination of each witness as named in this order, during examination time lengths as specified in this order, below the name of each witness:

  Claimant's witnesses:

  i. Earl Martin (Claimant) Examination in Chief Cross-examination	90 Minutes 2 hrs. 30 minutes
  ii. Junior Grant Examination in Chief Cross Examination	30 Minutes 45 Minutes
  iii. Carlton Hollingsworth Examination in Chief Cross Examination	30 Minutes 60 Minutes
  Defendant's Witnesses:
  i. Richard Burgher (Defendant) Examination in Chief Cross Examination	45 Minutes 45 Minutes
  ii. Robert Woodstock Examination in Chief Cross-examination	45 Minutes 45 Minutes
  iii. Ruth Morrison Examination in Chief Cross Examination	45 Minutes 45 Minutes

• 5. It shall be open to the trial judge to extend to whatever extent that the Judge considers necessary, the time periods required for examination in chief and cross examination in order number 4 above.

• 6. The last date scheduled for the trial of this claim shall be the date on which the respective parties shall present to the Court, oral closing submissions, unless the trial judge thinks the presentation/making of same to be unnecessary.

• 7. By or before June 3, 2019 the Defendant shall notify the Claimant in writing by means of a document to be filed and served, of any document which the defendant wishes to rely on at trial.

• 8. The Claimant shall file and serve by or before June 24, 2019 and shall file and serve by or before same date, a bundle of agreed documents and a bundle of those documents that are not agreed and indices for those documents that are not agreed and indices for those bundles. Those bundles need only to be filed but the indices for same shall be filed and served.

• 9. The parties shall respectively file and serve all witness statements for all witnesses whose evidence is intended to be relied upon at trial and no extension of time for this order shall be granted by this Court without there having been a written application filed for that purpose. Said witness statements shall be filed and served before July 31, 2017.

• 10. The costs of today shall be costs in the Claim.

• 11. The Claimant shall file and serve this order.

12 The undisputed fact is that the Defendant failed to comply with the orders of the Court. The Defendant has filed the following documents out of time and is seeking the Court's permission for the following documents to stand as properly filed:

• (i) Amended Defence and Counterclaim filed on the 9 ^th May, 2019

  (The Defendant also seeks to amend his statement of case in terms of the amendment contained in the said Amended Defence and Counterclaim filed on the 9 ^th May, 2019)

• (ii) Witness statement of Richard Burgher filed on the 12 ^th June, 2019

• (iii) Witness statement of Carlton Hollingsworth filed 12 ^th June, 2019

• (iv) Witness statement of Stacey-Ann Dennison-Heron filed on the 24 ^th June, 2019

CLAIMANT'S SUBMISSIONS

13 Mr. Bernard submitted that pursuant to Rule 26.3(1) of the Civil Procedure Rules (CPR), the Court has the discretion to strike out a party's statement of case or a part thereof for failure to comply with a rule, a direction or an order of the Court. Counsel relied on the dicta of Lord Wolf M.R. in the case of Biguzzi v Rank Leisure Plc [1999] 1 W.L.R. 1926 and McNaughty v Wright and others, SCCA No. delivered May 25, 2005 to advance the point that “orders or requirements as to time are made to be complied with and are not to be lightly ignored.” Counsel highlighted relevant sections of the judgment which emphasised that in making a decision as to whether to strike out a case for noncompliance, the Court...