George Freckleton v Aston East

• Jurisdiction: Jamaica
• Judge: Morrison JA
• Judgment Date: 24 May 2013
• Neutral Citation: JM 2013 CA 57
• Docket Number: SUPREME COURT CIVIL APPEAL NO 112/2012
• Court: Court of Appeal (Jamaica)
• Date: 24 May 2013

Between

George Freckleton

Appellant

and

Aston East

Respondent

[2013] JMCA Civ 39

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Morrison JA

The Hon Mrs Justice Lawrence-Beswick JA (Ag)

SUPREME COURT CIVIL APPEAL NO 112/2012

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Extension of time - Application to file defence - Civil Procedure Rules 2002, Rules 6.6(2), 26.8 - Relief from sanction - Unless Order

Anthony Pearson for the appellant

Vernon Daley for the respondent

ORAL JUDGMENT

Morrison JA

1 This is an appeal from an order made by Anderson J on 24 July 2012 dismissing an application by the appellant for an extension of time within which to file a defence to the respondent's claim.

2 The matter arises in the following way. The appellant and the respondent are the registered proprietors, as joint tenants, of a dwelling house situated at 39 Rochester Avenue, Kingston 8 in the parish of St Andrew and registered at Volume 1152 Folio 25 of the Register Book of Titles (“the property”).

3 By an action commenced by fixed date claim form on 12 September 2011, the respondent seeks a declaration that he is the legal and beneficial owner of the property and that the appellant holds his interest in it on trust for the respondent.

4 Attorneys-at-law acting for the appellant filed an acknowledgment of service of the claim form on 28 September 2011 but, up to the date fixed for the first hearing of the claim on 10 October 2011, took no steps to file any affidavit or defence to the claim. On that date, both parties appeared by counsel before Anderson J, who made several case management orders, relating to the time limited for the filing and service of (i) an affidavit by the appellant in response to the claim; (ii) lists of documents; (iii) listing questionnaires by both parties; (iv) skeleton arguments; and other matters necessary for the efficient conduct of the matter. Most importantly, the trial of the action was fixed before a judge alone in open court for 4 and 5 July 2012.

5 None of these case management orders having been complied with up to the time the matter came on for trial on 4 July 2012, on that date the appellant's attorneys-at-law made an oral application for an extension of time within which to comply. The learned judge accordingly adjourned the matter for a further case management conference to be held on 19 July 2012 and made an order granting the appellant an extension of time ‘up to and inclusive of 18 July 2012, within which to comply with all the Case Management Orders’. The judge further ordered as follows:

‘If the Defendant [appellant] shall fail to comply with all case management orders by or before July 18, 2012, the Defendant's statement of case (if such then exists) then it [sic] shall stand as struck out [sic].’

6 On 18 July 2012, the appellant's attorneys-at-law filed certain of the documents required by the case management orders, not including any affidavit or other document in defence of the claim. It appears from the stamp affixed by the respondent's attorneys-at-law in acknowledgment of service of these documents that they were actually served at their offices at 4:02 pm on 18 July 2012.

7 Through no fault of the parties, the case management conference scheduled for 19 July 2012 did not take place until the following day, 20 July 2012, at which time the appellant's counsel made another oral application for an extension of time within which to file an affidavit or defence to the claim. The application was supported by an affidavit sworn to by the appellant's attorney-at-law, Mr Anthony Pearson, to which was exhibited an unsigned affidavit of the appellant, which, Mr Pearson deponed, he had prepared on the basis of the instructions given by the appellant. The explanation given for it not having been sworn to and filed in time was that the appellant had had to leave the island for ‘medical reasons relating to a heart problem’ on 13 July 2012.

8 The application for extension of time was opposed by counsel for the respondent on the basis, among others, of rule 6.6(2) of the Civil Procedure Rules 2002 (CPR), which provides that ‘Any document served after 4 pm on a business day or at any time on a day other than a business day is treated as having been served on the next business day.’ The learned judge reserved his ruling to 24 July 2012, when the application was refused and the matter was fixed for trial on 30 and 31 July 2012. However, the judge having given leave to appeal on the 24 ^th , on 30 July 2012 the trial was adjourned to allow the appellant to pursue the appeal.

9 In his written reasons for refusing the application for extension of time, Anderson J took the view that, even if the service of the documents at 4:02 pm was a breach of a trivial nature, rule 6.6 constrained the court to treat it nevertheless as a breach. The appellant thus having failed to comply with the unless order made on 4 July 2012, the court had no discretion to extend the time for compliance with the order. In these circumstances, the correct course would be an application for relief from sanctions pursuant to rule 26.8 of the CPR, the court being powerless to grant such relief of its own motion pursuant to rule 26.9.

10 From this order, the appellant has filed a single ground of appeal which is as follows:

‘The Learned Trial Judge erred in holding that the Court had no discretion in extending the time within which the Defendant/Appellant could comply with the Court's earlier Order having regard to all the circumstances.’

11 Before us, Mr Pearson for the appellant has advanced four submissions:

1

‘The service of the documents at 4:02 p.m. is a trifling matter and the Court should have no regard as to the 2 minutes thus allowing the Documents to stand as properly served on the 18 th July 2012. 2. Where there is an UNLESS ORDER of the Court the sanction of the UNLESS ORDER does not apply...