Hoip Gregory v Vincent Armstrong
| Jurisdiction | Jamaica |
| Judge | Brooks JA |
| Judgment Date | 23 August 2012 |
| Neutral Citation | JM 2012 CA 82 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 80/2006 APPLICATION NO 164/2012 |
| Court | Court of Appeal (Jamaica) |
| Date | 23 August 2012 |
[2012] JMCA App 21
JAMAICA
IN THE COURT OF APPEAL
SUPREME COURT CIVIL APPEAL NO 80/2006
APPLICATION NO 164/2012
SUPREME COURT CIVIL APPEAL NO 81/2006
APPLICATION NO 165/2012
CIVIL PROCEDURE - Extension of time to file records of appeal - Court of Appeal Rules 2002, Rule 2.4
IN CHAMBERS
(Considered on paper pursuant to rule 2.10(3) of the Court of Appeal Rules 2002)
These are two applications by Mr Hoip Gregory for an extension of time within which to file his respective records of appeal, he having failed to comply with the time prescribed by the Court of Appeal Rules 2002 (CAR). He filed notices of appeal in these two matters on 25 September 2006. The present applications were filed on 26 July 2012. Both matters arise from the same motor vehicle crash.
This is not the first time that the applicant has failed to observe procedural rules. In fact, the appeals arise from the refusal of the learned Master to grant an extension of time to the applicant to file his defence out of time.
The applications arise out of an incident that occurred on 1 November 1998 at Old Harbour in the parish of Saint Catherine. On that occasion the respondent, Mr O'Brien Kennedy was a passenger in a motor vehicle being, then driven by the other respondent, Mr Vincent Armstrong. The motor vehicle collided with a Mitsubishi Pajero motor car, which was then being driven by the applicant. Alcan Jamaica Company Limited (Alcan) owned the Pajero. Alcan was also named as a defendant to each of the claims in the court below.
The claims were filed on 28 October 2004; just three days shy of the expiry of the statute of limitations. Alcan filed its defence, in respect of each claim, on 15 February 2005. These were filed within the stipulated time. The applicant failed to file his statements of defence within time.
On 6 June 2006, he filed notices of application for permission to file his statements of defence out of time. The explanation, given in each of the Affidavits filed in support of the applications, was that the defence could not have been filed as the applicant was awaiting a medical report in respect of injuries that he received in the collision.
The applications came on for hearing before the learned Master on 19 September 2006. The learned Master refused the applications but granted leave to the applicant to appeal the rulings.
The applicant, having filed the notices of appeal, promptly went to sleep. He remained somnolent despite several notices and letters sent by the Registrar of this court to his attorneys-at-law. Nothing further was filed on his behalf until the Registrar, in June 2012, issued a notice of default in respect of the appeals.
On 26 July 2012, the applicant filed, what purported to be, records of appeal. He also filed the present applications, which were each supported by an affidavit, sworn to by Mr Keith Bishop, the attorney-at-law having conduct of the appeals. The applications were referred to the full court on 31 July 2012, when the Registrar's report of the applicant's default was placed before the court. The court ruled that the applications should be placed before a single judge.
In his explanation for the delay, Mr Bishop explained that he had relocated his offices in December 2011, and at that time, files were placed in different locations. He deposed that the file for these claims was inadvertently placed with some closed files and, as a result, there was some delay in locating it.
The explanation is patently inadequate, as no reason was given for the failure to take any step between 2006 and 2011. There was also no explanation given for the applicant ignoring the various notices and advisories sent by the Registrar of this court, prior to December 2011, to the respective parties.
It now falls to be determined whether the applicant should be allowed to proceed with these appeals and, if so, whether or not the appeals should be treated as procedural appeals.
It has been said that parties ignore the rules of procedure of the Supreme Court at their peril (per Panton P in Golding and Another v Simpson-Miller SCCA 3 of 2008 (delivered 11 April 2008) at paragraph [15]). A similar observation may be made about non-compliance with the rules of this court. Nonetheless, there are circumstances, which sometimes arise, that require a defaulting applicant to succeed, despite his default. In some of those circumstances, practicality demands that successful result.
In the instant case, practicality favours the granting of these applications. As was mentioned above, Alcan Jamaica Company Limited had filed its defence within time. Despite the passage of the years, the claims have not yet been tried. There will, therefore, all things being equal, be a trial of the issues joined between the respective respondents and Alcan Jamaica Company Limited. The issues in the trial will, of course, turn on who was the negligent party in the motor vehicle collision. The applicant, being the driver of Alcan's vehicle, it means that his testimony will be integral to the resolution of those issues.
In the circumstances, it would seem that he should be allowed an opportunity to convince this court that the decision of the learned Master was incorrect and that he should be allowed to participate in the trial, not only as a witness, but as a party whose fate would be determined, not by his procedural failures, but by the decision on merits of the claims. I make no comment in respect of whether he would be allowed to file a counterclaim after the expiry of the limitation period, as in fact, he sought to do before the learned Master.
Sykes J recognised the practicality of this position in Saunders v Green and Others 2005 HCV 2868 (delivered 27 February 2007). In a case in which one of several defendants had failed to file a defence within the prescribed time, Sykes J ruled that a judgment in default of defence should be set aside to enable the defaulting defendant to participate in the trial, where the issues concerning that defendant would have had to have been tried in any event.
At paragraph 27 of his judgment, he stated as follows:
‘…in cases where there are multiple defendants and a default judgment has been entered against one and that judgment does not relieve the court, at any subsequent trial, from exploring issues directly involving that particular defendant, the court should favourably consider any application to set aside judgment provided this can be done without serious risk of injustice to the claimant. The risk of injustice to the claimant must be considered because justice cannot be for the defendant alone or for one party.’
The learned judge relied on, as authority for that principle, Hussain v Birmingham City Council and Others [2005] EWCA Civ 1570. I respectfully agree with his enunciation of the principle.
In applying that principle to the instant case, I find that the applicant should be allowed to pursue these appeals. It is, however, necessary to discuss the method by which they are to be pursued.
It is to be noted that by letter dated 25 September 2006, the Registrar of this court advised the parties that these appeals fell within the definition of procedural appeals as set out in rule 1.1(8) of the CAR and should, therefore, be governed by the provisions of rule 2.4 of the CAR. Whereas I agree with the Registrar's categorisation of the appeals, there is a school of thought that the opportunity to pursue the speedy procedure afforded by rule 2.4 is no longer available to the applicant.
The fact is that no written submissions were filed with the respective notices of appeal. Rule 2.4(1) uses the term ‘must’ in respect of the reqirement for the filing and serving of the written submissions. It states:
‘On a procedural appeal the appellant must file and serve written submissions in support of the appeal with the notice of appeal.’ (Emphasis supplied)
In the absence of compliance, it is arguable that there are no procedural appeals before the court in these matters. The reasoning in the Golding v Simpson-Miller case, although concerned with different rules, may be...
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