HB Ramsay & Associates Ltd and Others v Jamaica Redevelopment Foundation Inc. and Another

• Jurisdiction: Jamaica
• Judge: Panton P,Morrison JA,Brooks JA
• Judgment Date: 18 January 2013
• Neutral Citation: JM 2013 CA 2
• Docket Number: SUPREME COURT CIVIL APPEAL NO 88/2012
• Court: Court of Appeal (Jamaica)
• Date: 18 January 2013

Between

H. B. Ramsay & Associates Ltd

1st Appellant

and

Caledonia Hardware Ltd

2st Appellant

and

Harold B. Ramsay

3rd Appellant

and

Janet Ramsay

4th Appellant

and

Jamaica Redevelopment Foundation Inc

1st Respondent

and

The Workers Bank

2nd Respondent

[2013] JMCA Civ 1

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Morrison JA

The Hon Mr Justice Brooks JA

SUPREME COURT CIVIL APPEAL NO 88/2012

JAMAICA

IN THE COURT OF APPEAL

CIVIL PROCEDURE - Sanction - Application for relief from sanction - Application refused - Whether judge wrongly exercised discretion in refusing application - CPR 2002, Rule 26.8`

Debayo Adedipe for the appellants

Mrs Sandra Minott-Phillips QC and Mrs Alexis Robinson instructed by Myers Fletcher and Gordon for the 1 ^st respondent

Harrington McDermott instructed by Director of State Proceedings for the 2 ^nd respondent

PROCEDURAL APPEAL

Panton P

1 I have read, in draft, the reasons for judgment of my brother Brooks JA and agree that they accurately reflect the findings of the court.

Morrison JA

2 I too have read the draft reasons for judgment of Brooks JA and agree with the reasoning contained therein.

Brooks JA

3 This is an appeal against the judgment of Fraser J, handed down in the Supreme Court on 6 June 2012. In that judgment, the learned judge dismissed an application for relief from sanctions that had been filed by the appellants herein. The appellants assert that the learned judge wrongly exercised his discretion in refusing their application.

4 After hearing submissions from counsel for both the appellants and the respondents, and thereafter considering the matter, we gave our decision on 20 December 2012. We dismissed the appeal and ordered costs to be paid to the respondents. Such costs are to be taxed if not agreed. At that time we promised to give our reasons at a later date. We now fulfill that promise.

5 The application arose because the appellants failed to obey an order of Master Lindo. The learned Master had, on 2 March 2010, ordered the appellants to pay costs to each of the respondents, Jamaica Redevelopment Foundation Inc and The Workers Bank. The appellants did not obey that order, and on 13 April 2010, the learned Master made the following order:

‘Unless the costs awarded to the [respondents] on March 2, 2010 are paid on or before June 18, 2010 by 2:00 pm, the [appellants'] statement of case are [sic] to stand as struck out.’

6 Again, the appellants failed to comply. On 15 July 2010, they applied, pursuant to rule 26.8 of the Civil Procedure Rules (the CPR), for relief from sanctions. That is the application, which went before Fraser J.

7 The appeal turns on three issues:

whether the application had been made promptly; 2. whether a good explanation had been given for the failure, and; 3. whether the appellants had generally complied with other rules, orders and directions.

1 Learned counsel for both sides made submissions concerning the merits of the claim and the prospects of success. I find, however, without denigrating the research and advocacy that went into those submissions, that based on the provisions of rule 26.8, there is no need to consider those arguments.

8 I shall address the three issues, identified above, in turn. It is first necessary, however, as a backdrop to the analysis, to set out the provisions of rule 26.8:

‘26.8

• (1) An application for relief from any sanction imposed for a failure to comply with any rule, order or direction must be —

  • (a) made promptly ; and

  • (b) supported by evidence on affidavit.

• (2) The court may grant relief only if it is satisfied that —

  • (a) the failure to comply was not intentional;

  • (b) there is a good explanation for the failure ; and

  • (c) the party in default has generally complied with all other relevant rules, practice directions orders and directions.

• (3) In considering whether to grant relief, the court must have regard to —

  • (a) the interests of the administration of justice;

  • (b) whether the failure to comply was due to the party or that party's attorney-at-law;

  • (c) whether the failure to comply has been or can be remedied within a reasonable time;

  • (d) whether the trial date or any likely trial date can still be met if relief is granted; and

  • (e) the effect which the granting of relief or not would have on each party.

• (4) The court may not order the respondent to pay the applicant's costs in relation to any application for relief unless exceptional circumstances are shown.’ (Emphasis supplied)

Whether the application was made promptly

9 Fraser J, in a comprehensive written judgment, found that the application had not been promptly made. It is without doubt that the current thinking is that if an application for relief from sanctions is not made promptly, the court is unlikely to grant relief. Rule 26.8 states that the application ‘must’ be made promptly. This formulation demands compliance. Although the word ‘must’ has been variously interpreted as mandatory in some contexts (see Norma McNaughty v Clifton Wright and others SCCA No 20/2005 (delivered 25 May 2005)) and directory in others (see Auburn Court Ltd and Another v National Commercial Bank Jamaica Ltd and Another SCCA No 27/2004 (delivered 18 March 2009)), the context of rule 26.8(1) does suggest a mandatory element.

10 In my view, if the application has not been made promptly the court may well, in the absence of an application for extension of time, decide that it will not hear the application for relief. I do accept, however, that the word ‘promptly’, does have some measure of flexibility in its application. Whether something has been promptly done or not, depends on the circumstances of the case.

11 In Hyman v Matthews SCCA Nos 64 and 73/2003 (delivered 8 November 2006), this court found that an application, made three months after the entry of a judgment as a result of a failure to obey an ‘unless order’, had not been made promptly. The applicant had, however, purported to comply with the order before the application was made, and another factor was that the legal vacation fell within the three-month period. Despite its finding, the court went on to allow the appeal against the judgment at first instance, which had refused the application.

12 The judgment of Harrison P indicates that the reason for granting the relief was twofold. Firstly, the learned President held that the case was ‘a transitional case’, that is, it had already been in existence when the CPR came into force. The second reason was that he held that the decision of this court in International Hotels Jamaica Ltd v New Falmouth Resorts Ltd SCCA No 56 and 95/2003 (delivered 18 November 2005) was that all the provisions of rule 26.8, should be read cumulatively.

13 In my respectful opinion, Hyman v Matthews should be regarded as belonging to the period of transitional cases where ‘particular care should [have been] taken to give ample time to the parties to adjust to the new requirements’ (per Panton JA (as he then was) in International Hotels Jamaica Ltd v New Falmouth Resorts Ltd at page 8). I find that that era has already passed. In its wake, the court may well take a more stringent approach to diliatory applications.

14 In addressing the matter of promptitude in the instant case, Mr Adedipe, on behalf of the appellants, submitted that ‘[p]romptitude cannot be assessed without taking into account the state of mind of the applicant’. That submission was a part of a wider submission that the assessment of whether the application was made promptly, should take into account the time at which the applicant became aware of the default, and not the time at which the default occurred. I find that the submission does not have much force in the context of a sanction that is applied pursuant to an ‘unless order’. Where such orders are made, the party affected is given notice of the requirement and the penalty for non-compliance. The deadline for compliance should, therefore, be uppermost in his mind.

15 In the instant case, the learned Master's original order had already been disobeyed, so it ought to have been a matter of priority for the appellants and their attorneys-at-law to ensure that the extended time, given by the learned Master, was met. If, despite all efforts to comply, some slip had occurred, the default should have been immediately...