Elita Flickenger v David Preble and Another

• Jurisdiction: Jamaica
• Judge: Lawrence — Beswick JA (Ag)
• Judgment Date: 14 June 2013
• Neutral Citation: JM 2013 CA 64
• Docket Number: APPLICATION NO 8/2013
• Court: Court of Appeal (Jamaica)
• Date: 14 June 2013

[2013] JMCA App 13

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT CIVIL APPEAL NO 152/2010

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Morrison JA

The Hon Ms Justice Lawrence — Beswick JA (Ag)

APPLICATION NO 8/2013

Between

Elita Flickenger (Widow of the deceased Flickenger)

Applicant

and

David Preble (T/as Xtabi Resort Club & Cottages)

1st Respondent

and

XTabi Resort Limited

2nd Respondent

Ainsworth Campbell and Andrew Campbell for the applicant

Christopher Samuda and Miss Danielle Chai instructed by Samuda and Johnson for the respondents

CIVIL PROCEDURE - Extension of time - Apploication to file record of appeal - Order granted

Lawrence — Beswick JA (Ag)

1 On 22 April 2013, we heard an application to discharge the orders of a single judge of this court and on the following day, 23 April 2013, we made the following orders:

• (a) the application to discharge the orders of a single judge is allowed;

• (b) permission to file the record of appeal out of time is granted and the record filed on 6 December 2012 shall stand as properly filed; and

• (c) no order as to costs.

We promised to put our reasons in writing and this we now do.

2 On 10 January 2013, the honourable judge of appeal refused two applications concerning this appeal. The first was for an extension of time within which to file the record of appeal. The second was to include an affidavit sworn to by Mr Ainsworth Campbell, attorney-at-law, on 16 January 2009, as part of the record of appeal. This affidavit purportedly contained relevant evidence from the court below which did not appear in the notes of evidence taken by the learned trial judge and which was not referred to in his written judgment.

3 The trial concerned a claim by the applicant, Ms Elita Flickenger for loss which she alleges she suffered as a result of the drowning death of her husband, Mr Robert Flickenger, in 1995, whilst they were guests at the Xtabi Resort Club and Cottages, Westmoreland, operated by Mr David Preble.

4 The trial commenced on 26 November 2002 and continued over the course of several days, ending almost five years later on 25 July 2007, when judgment was reserved. More than three years passed, and on 10 November 2010, judgment was delivered in favour of the respondents.

5 An appeal was filed on 23 December 2010 and the record of appeal ought to have been filed on or before 8 June 2012. On 5 June 2012, the applicant filed an application seeking an order to extend the time to file the record of appeal and supplementary record of appeal for a period of three months. That order was granted on 22 June 2012.

6 On 21 September 2012, the applicant applied for the time within which to file the record of appeal and supplementary record of appeal to be extended for a period of a further three months. In the affidavit supporting that application, counsel, Mr Campbell, stated that despite his sustained effort it was impossible for him to prepare the record of appeal within the extended time. He had been preparing for what he described as a very tedious and difficult appeal for hearing in the Court of Appeal. Further, this record itself was voluminous, having some 600 pages and there was no money in the applicant's account to secure other assistance in the preparation of the record. Although it was only the pages in the record of appeal that needed to be numbered, the chronology and skeleton arguments had not yet been completed but were being prepared.

7 The grounds also stated that the applicant was experiencing difficulty in locating some of the exhibits from the trial, though the affidavit did not refer to that.

8 On 6 December 2012, the applicant filed an application to include in the record of appeal, the affidavit evidence of 16 January 2009 and of 6 December 2012, of attorney-at-law Mr Ainsworth Campbell, which purportedly constituted evidence given at the trial but which did not appear in the notes of evidence recorded by the learned trial judge. Both applications were heard on 11 December 2012 by a single judge of appeal and on 10 January 2013, both were refused.

Submissions

9 Counsel for the respondent, Mr Samuda, in an affidavit opposing these applications, stated that the reasons proffered for the delay in filing the record of appeal were unacceptable, as, in his view, Mr Campbell had had sufficient time to address all his stated problems. He was not aware of the exhibits not being available at the civil registry nor had there been any request for his firm to assist in providing those exhibits.

10 Miss Chai, in presenting submissions on behalf of the respondents, relied on a number of authorities, including decisions of this court, which provided that certain criteria must be considered by the court in determining whether leave should be granted in an application for an extension of time. She argued that those criteria had not been met.

11 Counsel submitted that the learned judge of appeal did not err in either law or in fact in refusing the application and that his order should not be disturbed.

12 Mr Campbell, on behalf of the applicant, urged the court to reverse the order of the learned single judge of appeal and extend the time to file the record of appeal not only because the said criteria had been met, but also because there was every indication that all the evidence in the case had not been considered by the trial judge. The justice of the case demanded that the case should be heard on all its merits after due consideration of the totality of the evidence. The applicant should not be chased from the judgment seat.

13 Mr Campbell submitted that witnesses Asher Williams and Dwight Flickinger had testified concerning important issues in the case and an analysis of their evidence was critical. The learned trial judge had found that an element of negligence had not been proven, but these two witnesses had provided evidence, to which the learned judge had not referred, that should have been considered in that regard.

14 Mr Williams had testified as to the usual condition of the seas at the time of year when Mr Flickenger drowned and the evidence of Mr Flickinger, brother of the deceased, contained in his affidavit of 18 June 2005, spoke to a description of the premises the day after his brother had died, and testified to an absence of any warning notices on the premises as to the dangers to be found in the seas by the resort. Photographs had been attached.

15 Counsel, Mr Campbell, also argued that the learned judge of appeal had failed to give sufficient consideration to the overriding principle that the court must do justice between the parties. He urged this court to consider that during the course of the trial, counsel for the respondent had himself been tardy in meeting a deadline prescribed by the court, for the filing and delivery of submissions.

Analysis and discussion

The Rules and principles

16 The Court of Appeal Rules 2002 (“the Rules”) provide at rule 1.7(2)(b) that the court may extend the time for compliance with any order or direction of the court. Rule 2.11(1) empowers a single judge of appeal to make an order under a procedural application such as this application and such an order may be varied or discharged by the court, according to rule 2.11(2).

17 The Rules do not make specific provisions as to the method of determining an application to extend time for compliance with any rule. However, guidance in that regard is found in the several authorities to which both counsel referred, in particular in Peter Haddad v Donald Silvera SCCA No 31/2003 delivered 31 July 2007.

18 After considering these authorities, the learned single judge of appeal opined that the relevant principles to be applied were as follows:

• ‘a. in the absence of specific provisions in the rules, the court, in exercising its discretion should do so in accordance with the overriding objective;

• b. generally speaking,...