Forrester v Francis
| Jurisdiction | Jamaica |
| Judge | Walker J. |
| Judgment Date | 30 May 1994 |
| Court | Supreme Court (Jamaica) |
| Docket Number | C.L. F156 of 1983 |
| Date | 30 May 1994 |
Supreme Court
Walker, J.
C.L. F156 of 1983
Bert Samuels instructed by Knight, Pickersgill, Dowding and Samuels for the plaintiff.
Bertham MaCaulay Q.C. and Mrs. M. MaCaulay for the defendant.
Legal profession - Responsibilities of attorney-at-law to client — Whether the plaintiff's pleadings disclose a cause of action against the defendant — Defendant advised and induced the plaintiff to continue and commence an action against the University Hospital Board — Finding of the court that an attorney-at-law is only responsible in damages to a client where he has demonstrated a want of reasonable skill or has been guilty of gross negligence in the performance of his professional services — No facts disclosed in the plaintiff's pleadings which show actionable negligence, or otherwise provide a basis from which such negligence on the part of the defendant may necessarily be inferred — Judgment for the defendant — Plaintiff's action ordered struck out.
These are ancient proceedings. They were commenced more than a decade ago by the plaintiff's Writ of Summons which was filed on December 22, 1983. That writ was accompanied by a Statement of Claim the main body of which reads as follows:
“The Plaintiff was at the material time unemployed and lived at 2 Park Avenue, Kingston 5 in the parish of St. Andrew.
1. The Defendant is an Attorney-at-Law with chambers located at 18a Duke Street in the parish of Kingston
2. On the 13th day of February 1970 the Plaintiff retained and employed the Defendant as his Attorney-at-Law by a contingency agreement dated the 13th day of February 1978 and the payment of $50.00 for expenses to advise and act for him in the continuation of an action Suit No. C.L. F. 131/75 commenced by another Attorney-at-Law.
3. In the premise the Defendant was at all material times under a duty to exercise all due professional care skill and diligence as an Attorney-at-Law in relation to the Plaintiff's said business and affairs.
4. The Defendant was guilty of negligence and/or breach of duty in that he failed to check or peruse the relevant legislation or Acts to determine whether the Plaintiff's action was maintainable in law.
5. On the 14th and 15th days of June 1979 the said Suit No. C.L. F131/75 came on for hearing before his Lordship and Honourable Mr. R.O.C. Whyte in the Supreme Court of Judicature of Jamaica and it was then discovered that the wrong Defendant had been named in the action and the said action was dismissed with costs to the defendants.
6. On the 21st day of September 1979 a Bill of costs was taxed against the Plaintiff in the same action Suit No. C.L. F.131/75 at $528.55.
7. In or about the 15th day of June 1979 the Defendant advised and induced the Plaintiff to commence a second action to replace Suit No. C.L. F.131/75 and a new Suit No. C.L.F048 of 1979 was commenced by the Defendant against the University Hospital Board of Management as the 1st Defendant, the University Hospital of the West Indies as the 2nd Defendant and O.D. Scott as the 3rd Defendant.
8. On the 10th day of October 1979 the 2nd and 3rd Defendants in Suit No. C.L. F No. 48 of 1979 were ordered by the Honourable Master to be struck out from the said action with costs to be agreed or taxed.
9. On the 27th day of November 1979 the Honourable Master in chambers made an order that the action Suit No. C.L. F048/79 should be stayed until the cost incurred by the Plaintiff in Suit No. 131 of 75 be paid.
10. The Defendant appeared before the court on the 12th day of January 1981 in an application for an extension of time to lodge an appeal against the said order referred to above and the matter was adjourned sine die with cost to be agreed or taxed and to be paid to the University Hospital Board of Management.
11. The 20th day of May 1981 the cost referred to above were taxed by the Registrar of the Court Appeal in the sum of $457.00.
12. The Defendant advised and induced the Plaintiff to continue Suit No. 131/75 and to commence Suit No. C.L. F048 of 1979 by representing to him orally,
(a) that the Plaintiff had a good case against his employers and a very good chance of success, and
(b) that all that was necessary to remedy the defect of the previous Suit No. C.L. F131/79 when this action was dismissed on the 15th day of June 1978 was to substitute the correct names of the Defendants in a new action.
13. Each and every of the said representations was untrue since the Defendant knew or ought to have known that the Defendant in a new action the University Hospital Board of Management would be protected under Section 2 of the Public Authorities Protection Act.
14. Further and in the alternative in inducing and advising the Plaintiff to continue Suit No. C.L. F.131/75 and subsequently to commence a new action the Defendant was guilty of negligence and/or breach of duty in that he failed to check or peruse the relevant legislation or Acts to determine whether the Plaintiff cause of action was maintainable in law.
15. Further or in the alternative in so advising and inducing the Plaintiff to commence a new action against the University Hospital Board of Management the University Hospital of the West Indies and O.D. Scott the Defendant negligently and in breach of duty omitted to make due and proper inquiry as to the relevant parties to the action and/or which were the relevant statutes that governed any action between the Plaintiff and his former employers. The Defendant knew or he could by due and proper inquiry have ascertained that any new action against the University Hospital Board of Management was statute barred under Section 2 of the Public Authorities Protection Act and further that the University Hospital of the West Indies was not a legal entity and had no capacity to sue or be sued and O.D. Scott was only an agent of the University Hospital Board of Management.
16. By reason of the premises the Plaintiff has incurred loss and expenses and costs were awarded against the Plaintiff in Suits No. C.L. F.131/75 and C.L.F.048 of 1979 and he is liable to be called upon to pay and satisfy same.
(1)
Taxed cost for Suit No. C.L. F.131/75
$988.55
(2)
Taxed cost for Suit No. C.L. F.048/79
529.26
(3)
Taxed cost for C/A No.71/80
457.00
And the Plaintiff claims
$1,974.81
(1) Damages and
(2) (2) Such other relief as the court may think just
Dated the 19th day of Dec, 1983
(Sgd.) D. Forrester
D. FORRESTER”
There are now before me two summonses which by consent are being heard together. The first is a summons dated January 31, 1984 and filed by the defendant. This is a summons to strike out the plaintiff's pleadings on the grounds that:
“(a) they disclose no reasonable cause of action;
(b) the action is frivolous and vexations (sic);
(c) the action is an abuse of the process of the Court.”
The second summons dated July 16, 1992 and filed by the plaintiff seeks to strike out the defendant's summons just mentioned in effect essentially on the basis that it is frivolous. The broad issue for determination at this time is, therefore, whether the plaintiff's pleadings disclose a cause of action against the defendant. If so, the plaintiff's pleadings must be allowed...
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