Follett (Maria) v Bournville Briscoe, Edward Mendez, Lenworth Thomas and Ricardo Thomas

• Jurisdiction: Jamaica
• Judge: SYKES J.
• Judgment Date: 08 May 2006
• Judgment citation (vLex): [2006] 5 JJC 1602
• Date: 08 May 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

BETWEEN

MARIA FOLLETT

CLAIMANT

AND

BOURNVILLE BRISCOE

FIRST DEFENDANT

AND

EDWARD MENDEZ

SECOND DEFENDANT

AND

LENWORTH THOMAS

THIRD DEFENDANT

AND

RICARDO THOMAS

FOURTH DEFENDANT

IN CHAMBERS

Mr. Ainsworth Campbell for the claimant

Mr. Christopher Samuda instructed by Piper and Samuda for the first and second defendants

Mr. Kent Gammon instructed by Dunn Cox for the third and fourth defendants

CIVIL PROCEDURE - Claim for want of prosecution - Striking out

1 APPLICATION TO STRIKE OUT CLAIM FOR WANT OF PROSECUTION

SYKES J

2 1. This is an application by Mr. Bournevill Briscoe and Mr. Edward Mendez, the first and second defendants, to strike out the claimant's statement of case for want of prosecution. I granted the application with costs to them. The facts come from the affidavits of Mr. Christopher Samuda, counsel for the applicants, Mr. Ainsworth Campbell, counsel for the claimant, and Miss Follet, the claimant. As it has turned out the third and fourth defendants are only in this case to this point as third parties. The claimant failed to serve them but the first two defendants joined them as third parties. These are my reasons.

3 The factual background

4 2. One of the good things about these applications is that the facts are usually incontestable. The debate usually surrounds the reasons that led to the facts and the legal consequences of the facts. This case is no different. Let me list briefly the events in this gloomy tale of delay and procrastination.

• a. The claimant was a passenger in a motor vehicle which was involved in a motor vehicle accident that occurred on September 13, 1990.

• b. Writ of summons and statement of claim were filed on June 25, 1991.

• c. Memorandum of appearance for the first two defendants was entered on August 22, 1991.

• d. The defence of the first and second defendants was filed on September 9, 1991.

• e. The summons for directions was filed on October 17, 1991.

• f. The summons for directions was heard on December 12, 1991.

• g. The claimant applied on February 2, 1992, for an extension of time within which to set down the matter for trial.

• h. The application was granted on March 25, 1992.

• i. Another application for an extension of time within which to set down the matter for trial was made on January 19, 1993. This application was not heard but adjourned to February 10, 1993, because of the absence of the claimant's attorney.

• j. On March 22, 1993, the claimant applied to amend the statement of claim. This was granted on May 18, 1993.

• k. The amended statement of claim was filed on May 28, 1993.

• l. The next step was on October 19, 1995. This was the filing of a certificate of readiness.

• m. Obviously, emboldened by acts of judicial benevolence of the past, the claimant on June 14, 1996 applied for yet another amendment to the statement of claim.

• n. Five years after issuing the writ of summons, the claimant realised that she had not served the third and fourth defendants. This discovery was made on June 21, 1999, when the matter finally crawled unto the trial list. The claimant was indulged yet again by being granted an adjournment.

• o. Its next appearance on the trial list was October 1, 2001, when it was set down for trial on November 26, 2001. On November 26, 2001, the claimant gave up pursuing the third and fourth defendants undoubtedly because the action was by then...