Godmar (Judith) v Ciboney Group Ltd

• Jurisdiction: Jamaica
• Judge: HARRISON, J.A:
• Judgment Date: 11 April 2003
• Neutral Citation: JM 2003 CA 12
• Judgment citation (vLex): [2003] 4 JJC 1107
• Court: Court of Appeal (Jamaica)
• Date: 11 April 2003

IN THE COURT OF APPEAL

BEFORE:

THE HON MR. JUSTICE BINGHAM, J.A THE HON MR. JUSTICE HARRISON, J.A THE HON MR. JUSTICE SMITH, J.A

BETWEEN:

JUDITH GODMAR

PLAINTIFF/APPELLANT

AND

CIBONEY GROUP LTD

DEFENDANT/RESPONDENT

Dennis Morrison, Q.C., and Mrs. Janet Morgan for appellant

Mrs. Sandra Minott-Phillips and Miss Helga McIntyre for respondent.

NEGLIGENCE - Statement of claim - Application to amend to add further claim to Particulars of Special Damages - Whether finding of "mala fides" on part of plaintiff reasonable on the evidence - Whether application for amendment made outside of limitation period permissible - Whether post traumatic stress disorder may be added to particulars of injury

HARRISON, J.A:

1 By way of an amended motion dated February 11, 2002 the respondent took a preliminary point before us that the appeal was not properly before this Court because it was filed out of time. The grounds on which the respondent relies are that:

• "1. This is an appeal from an interlocutory order which was perfected on November 6 2001, and in relation to which the time for appealing [under rule 13(a) of the Court of Appeal rules] expired on November 20 2001.

• 2. The filing of an application for leave to appeal does not prevent the time limited for appealing from running.

• 3. The appellant has not obtained an order for the enlargement of time for the filing of this appeal.

• 4. The appeal herein was filed on December 4, 2001.

• 5. The order made on November 29, 2001, granting leave to appeal is void and of no effect as it was made out of time with the result that the learned judge of the Supreme court had no jurisdiction to make that order."

2 We heard the arguments of counsel herein, dismissed the preliminary point and made no order as to costs. These are our reasons in writing.

3 The history of this matter is that on November 6, 2001 by an interlocutory order, Donald McIntosh, J. dismissed the appellant's application for an amendment of the statement of claim in the action. The order was perfected on November 16, 2001 and leave was granted on November 29, 2001. On December 4 2001, the appeal was filed in the Court of Appeal.

4 Mrs. Minott-Phillips for the respondent argued that the appeal was filed out of time and the appellant had not obtained a prior order for enlargement of time within which to file the appeal. Nor was any evidence led before the Court explaining why the application for leave was not made in time.

5 Mr. Morrison for the appellant, conceding that in interlocutory matters a notice of appeal filed before leave is obtained is valueless, argued that because the application for leave to appeal was filed on November 16, 2001 within 14 days of the order which was perfected on November 6, 2001 the filing of the appeal on December 4, 2OO1 was in time, leave having been granted on November 29, 2001. Counsel argued further that because the respondent applied for security for costs after having filed the notice of objection by way of the preliminary point that the appeal, was filed without prior leave, the respondent was thereby taking a step in the proceedings which operated as a waiver of an irregularity. The application for security for costs is an acknowledgement that a valid appeal was in existence. The appeal was properly before the Court and the preliminary point should fail.

6 An appeal from an interlocutory order of a judge of the Supreme Court lies to the Cwrt of Appeal provided that prior leave...