Glasford Perrin v Donald Cover
| Jurisdiction | Jamaica |
| Judge | Morrison P,Phillips JA,Pusey JA |
| Judgment Date | 04 October 2019 |
| Neutral Citation | JM 2019 CA 79 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 77/2017 |
| Date | 04 October 2019 |
[2019] JMCA Civ 28
IN THE COURT OF APPEAL
THE HON Mr Justice Morrison P
THE HON Miss Justice Phillips JA
THE HON Mr Justice Pusey JA (AG)
SUPREME COURT CIVIL APPEAL NO 77/2017
Written submissions filed by Nunes, Scholefield, DeLeon & Co for the appellant
Written submissions filed by Marion Rose-Green and Company for the respondent
Civil practice and procedure - Claim form — Validity — Expiration of claim form — Whether order of the court extending validity of claim form was valid.
(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)
I have read in draft the reasons for judgment of my brother Pusey JA (Ag) and agree with his reasoning and conclusion. There is nothing that I wish to add.
I too have read the draft reasons for judgment of my brother Pusey JA (Ag). I agree with his reasoning and conclusion and have nothing to add.
Pusey JA (AG)
This was an appeal from the decision of Lindo J (Ag) (as she then was) made on 12 May 2017, refusing Mr Glasford Perrin's (the appellant) application seeking, inter alia, a declaration that, firstly, the court had no jurisdiction to try Mr Donald Cover's (the respondent) claim, as the claim form filed on 12 June 2014 had expired and was therefore invalid; and secondly, that the order made on 13 July 2015, purporting to extend the life of the claim form, be set aside.
On 20 April 2018, we dismissed the appeal and varied the orders accordingly to extend the validity of the claim form, in the following terms:
We promised to put our reasons in writing. This is a fulfilment of that promise.
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1. The appeal is dismissed.
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2. The Order of the Supreme Court made on the 12 th May, 2017 is varied to add the following:
The order made by Lindo J on the 13 th July, 2015 in paragraph 1 is amended to read as follows:
That the Claim Form filed on the 12 th June, 2014 is renewed for a period of six months from the 3 rd June, 2015 to the 3 rd December, 2015.
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3. No order as to costs.”
The respondent's claim stemmed from a motor vehicle accident that occurred on 1 July 2008. On 3 June 2015, he filed a notice of application which was amended on 10 July 2015, in which he sought the following orders:
“11. That permission be granted for the Claim Form filed herein on the 12 th day of June, 2015 to be renewed for a period of six (6) months from the date hereof.
12. That personal service on the [appellant] of the sealed Claim Form dated and filed June 12, 2014 with prescribed Notes for Defendants (Claim Form), Acknowledgement of Service of Claim Form, Defence and Counterclaim and Particulars of Claim dated and filed the 12 th day of June, 2014 together (“the Documents”) be dispensed with and that service of the Documents and all other subsequent proceedings be effected by registered post on the [appellant], GLASFORD PERRIN of 102 Angels Drive, Spanish Town in the parish of Saint Catherine.
13. That service of the sealed Claim Form dated and filed June 12, 2014 with prescribed Notes for Defendants (Claim Form). Acknowledgement of Service of Claim Form, Defence and Counterclaim and Particulars of Claim, dated and filed the 12 th day of June, 2014 on the [appellant] by registered post on the 22 nd day of December, 2014 be allowed to stand pursuant to Rules 5.14(1) of the Civil Procedure Rules 2002.
14. That the time for filing of Acknowledgement of Service be twenty-one (21) days from the date of service by registered post and the time for filing Defence be fifty-six (56) days from the date of service by registered post.
15. That costs be costs in the claim.” (Emphasis added and underlined as in the original)
The application was heard by Lindo J (Ag) on 13 July 2015, and she granted the orders in the terms as prayed.
On 14 September 2015, the appellant applied for:
“1) A Declaration that the Claim Form having expired on June 12, 2015 and having not been extended or renewed by an Order of the Supreme Court taking effect on or before June 12, 2015, the Court has no jurisdiction to try the claim.
2) The Order of the Supreme Court per Justice A. Lindo (Ag.) on July 13, 2015 be set aside as being void and of no effect as it is purported to take effect when the Claim Form had already expired.
3) The Claim form filed on June 12, 2014 stand struck out as its twelve (12) month lifetime expired on June 12, 2015 and was not renewed on or prior to that date.
4) The period for filing Defence in accordance with the said Order of the Supreme Court await the hearing of this application.”
Mr Jeffrey Mordecai, who represented the appellant, argued that the claim was invalid because the order made by the learned judge was to take effect on a date after the claim form had expired.
The application filed on 14 September 2015, was also heard by Lindo J (Ag). The learned judge stated that there was no dispute that the claim form was valid at the time of the application since it was made “during the currency of the claim form”. Further, that the application could properly be heard after the 12 month lifetime of the claim form had expired, once it had been made before the expiration of the claim form.
The learned judge was of the view that to allow the respondent to benefit from a statute of limitations defence in these circumstances did not advance the overriding objective of the Civil Procedure Rules 2002 (CPR). The learned judge correctly identified the problem before her as being that “the [respondent] made an error in stating that the order being sought should be from ‘the date ‘hereof’… and that the court in granting the order in the terms as sought, did not make an order which would be valid”.
The learned judge reasoned that courts exist to do justice and not merely to enforce technicalities. She found solace in the decision in Gladston Watson v Rosedale Fernandes [2007] CCJ 1 (AJ), in which the Caribbean Court of Justice (CCJ) considered the legal effect of procedural irregularities. The CCJ considered that breaches of procedural rules should not deprive a litigant of the opportunity for his case to be heard. The CCJ referenced the statement of Wooding CJ in Baptiste v Supersad and Montrose (1967) 12 WIR 140 that:
“The law is not a game, nor is the court an arena. It is … the function and duty of a judge to see that justice is done as far as may be according to the merits.” (page 144)
Fortified by this and other authorities to the same effect, Lindo J (Ag) held at paragraph [13] that:
“… I find that the claimant in this case would be deprived of having his case heard on its [merits] because of an error on the part of his Counsel which went undetected by the court at the time the application was heard.”
The learned judge concluded that, although “clumsily drafted”, it was clear from the application and the other orders sought that the respondent was showing an intention to pursue the claim. Further, she observed that “the order made by the court… does not give effect to what was being sought and as stated earlier, is solely based on the manner in which the request was worded”. She conceded that “[t]he order made by the court was therefore of no effect”, as the claim form would have already expired when the order was made. In addition, the order should have been requested for a period of six months “from the 12 th day of June 2012”.
Having rationalised that this sort of error ought not to prevent the respondent from prosecuting his claim, the learned judge concluded that “[t]he administration of justice would be advanced by the court seeking to cure the defect in the drafting of the application by the attorneys for the [respondent] to rectify the subsequent order made on July 13, 2015”. She held that the formal defect amounted to a mere “procedural inadequacy which should not be fatal as the court should in the circumstances be able to exercise its discretionary powers to put things right in order to give effect to the overriding objective”. She therefore refused the application made by the appellant. We were not provided with a copy of the perfected order made on 12 May 2017, but the minute of order of the proceedings of the Supreme Court read as follows:
“1. The application for declaration that the court has no jurisdiction is refused.
2. Period for filing defence is 42 days of the date of this order.
3. Leave to appeal is granted.
4. No order as to costs.”
Before this court, the appellant argued that the claim form had expired and the order purporting to extend the validity of the claim form failed, as it took effect on a date after the expiration of the claim form.
The appellant submitted that the learned judge's acceptance of the fact that the claim form cannot be extended without an application being filed before it expires, and that any extension granted must take effect before the claim form expires, was completely inconsistent with her overall conclusion. Further, the decision to dismiss the appellant's application was in essence to allow the claim to continue on the strength of an order which was not valid, and which could not operate to extend the expired claim form.
In relation to the court's jurisdiction, the appellant argued that the learned judge erred in finding that the court retained the jurisdiction to correct or cure certain defects. This was so because her finding that the defect in the order was a mere “procedural inadequacy” was inconsistent with rule 8.14 of the CPR. Also, there was no inherent jurisdiction in the court to alter an order it had made, which had been duly perfected and acted upon.
In addition, it was submitted that the court could not reverse the order on its own motion merely because it had second...
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