Glen Morgan v Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Sykes J (Ag) |
| Judgment Date | 10 July 2002 |
| Judgment citation (vLex) | [2002] 7 JJC 1001 |
| Court | Supreme Court (Jamaica) |
| Date | 10 July 2002 |
| Docket Number | SUIT NO. C.L. 1991/M 239A |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
CIVIL PROCEDURE - Dismissal for want of prosecution - Application - Failure to file notice of intention to proceed
APPLICATION TO DISMISS FOR WANT OF PROSECUTION
THE FACTS
The defendant was served with a writ of summons and statement of claim on the 18 th day of October 1991 in which the plaintiff alleged that he was falsely imprisoned by the police on September 18, 1991 and released October 7, 1991.
The defendant entered an appearance on November 13, 1991. He did not file a defence. On March 18, 1992 judgment in default of defence was entered against the defendant. This finally prompted the defendant to act. He successfully applied on July 2, 1992 to set aside the interlocutory judgment.
On July 15, 1992 a defence was filed and served on the plaintiff on July 16, 1992. On August 26, 1992 the plaintiff filed and served his reply on the defendant. Pleadings were closed.
The mandatory summons for directions was heard on the October 29, 1992. One of the orders made by the Master on the summons was that the action should be set down for trial within thirty days.
The plaintiff failed to comply with that part of the order. In fact he did nothing until September 8, 1994 when he filed a notice of intention to proceed. Thus the first period of post writ delay was one year and eleven months months - the period from the Master's order to the filing of the first notice of intention to proceed. Despite this notice the plaintiff in fact did nothing. He did nothing for the next four and one half years. This is the second period of delay. On May 13, 1999 the plaintiff filed a second notice of intention to proceed. The second notice did not hasten the plaintiff's steps. He has flouted the Master's order made in October 1992 to set down the matter within thirty days and acted contrary to his intention stated in two notices of intention to proceed.
Ten months after the second notice, on March 30, 2000, he writes to the defendant seeking his consent for orders on a second summons for directions. No reason has been given for this course of action. The defendant naturally declined to assist the plaintiff. The plaintiff resumed his life of indolence.
Between October 29, 1992 and March 30, 2000 other than filing the two notices of intention to proceed and asking the defendant to consent to a second summons for directions the plaintiff did absolutely nothing.
This summons that has come before me is dated July 17, 2000. This summons was served on the plaintiff's attorneys on April 6, 2001; the same attorneys who have represented the plaintiff from the inception of the action.
On April 19, 2001 when the summons came on for hearing the matter was adjourned and costs awarded to the defendant. No reason is stated for the adjournment. The order for costs suggests that the adjournment was at the request of the plaintiff. It came up for hearing again on May 15, 2001. On that date the plaintiff applied for an adjournment so that he could file an affidavit in response to the summons to dismiss his action for want of prosecution. On July 17, 2001 the summons was set down for hearing but because of civil unrest in Kingston it was not heard. No affidavit was filed by that date by the plaintiff. Almost one year later the summons is relisted for July 4, 2002. The plaintiff has not filed any affidavit one year after he was granted an adjournment to do so.
The plaintiff's attorneys were served on May 21, 2002 at 3:15 pm(over five weeks ago) with the summons for hearing on the July 4, 2002. Neither the plaintiff nor his legal advisers has appeared.
LAW AND ANALYSIS
There can be no doubt about the applicable principles. They have been stated in Warshaw v Drew (1990) 38 W.I.R. 221; Port Services Ltd v Mobay Undersea Tours Ltd. & Fireman's Fund Insurance Company SCCA No. 18/2001 (unreported) (delivered March 11, 2002); Grovit v Doctor [1997] 2 All ER 417 and Arbuthnot Latham Bank Ltd. v Trafalgar Holdings [1998] 1 W.L.R. 1426.
My understanding of the law is that there are two types of cases. There are those in which the defendant seeks to establish that he is prejudiced in some way and therefore the matter should be struck out on the ground of prejudice (see Warshaw v Drew (supra) and Port Services Ltd. (supra). For convenience I will call this the prejudice ground. On the other hand there those in which the defendant may not have suffered any prejudice but insists that the what has occurred is an abuse of process with the consequence that the action should be struck out (see Grovit v Doctor (supra) and Arbuthnot...
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