International Hotels Jamaica Ltd v New Falmouth Resorts Ltd

• Jurisdiction: Jamaica
• Judge: P. HARRISON, J.A : , PANTON, J.A :, McCALLA. J. (Ag.)
• Judgment Date: 18 November 2005
• Neutral Citation: JM 2005 CA 65
• Judgment citation (vLex): [2005] 11 JJC 1803
• Court: Court of Appeal (Jamaica)
• Date: 18 November 2005

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE P. HARRISON, J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MRS. JUSTICE McMCALLA, J.A. (Ag.)

BETWEEN:

INTERNATIONAL HOTELS JAMAICA LTD.

APPELLANT

AND

NEW FLMOUTH RESORTS LTD.

RESPONDENT

Dr. Lloyd Barnett and Conrad George instructed by Hart, Muirhead and Fatta for the appellant.

Miss Carol Davis for the respondent.

CIVIL PROCEDURE - Unless Order

P. HARRISON, J.A :

1 I have read the judgment of Mrs. McCalla, J.A. (Actg.) outlining our reasons for allowing the above appeal on May 20, 2005. I agree with the reasoning of the learned judge. These are my comments.

2 At the trial on July 21, 2003, Brooks, J. asserted that the defence of the appellant stood struck out on June 19, 2003, for non-compliance with the said learned judge's order on May 19, 2003. He refused the appellant's application for extension of time as well as its application for relief from sanctions and declared the said defence as struck out on July 22, 2003. Judgment was accordingly entered for the respondent on its claim without trial in accordance with Rule 26.5. The assessment of damages followed. This appeal is from the said refusals.

3 Under the general powers of management as contained in Rule 26 of the Civil Procedure Rules, 2002 the Supreme Court has power to make orders and give directions. The non-compliance with any such order may result in the sanction of striking out of the statement of case of the party in breach - Rule 26.3. The said court also has the power to make "unless orders" - Rule 26.4. The sanction for the breach of an "unless order" may also be the striking out of the statement of case. Rule 26.4(7) reads:

"(7) Where the defaulting party fails to comply with the terms of any "unless order" made by the court that party's statement of case shall be struck out."

4 However, such a defaulting party may obtain from the Court relief from such sanction. Rule 26.8(1) provides:

"(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."

5 The said court is empowered to grant such relief in specific circumstances. Rule 26.8(2) reads:

"(2) The court may grant relief only if it is satisfied that -

• (a) the failure 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 ." (Emphasis added)

6 These conditions must be considered cumulatively in order to satisfy a primary test.

7 Sub-paragraph 8(3) mandates a court considering the grant of relief from sanctions, in addition, to have regard to:

(1) the interests of the administration of justice;

(2) whether the failure was the party's or the party's attorney-at-law's fault;

(3) whether the failure has been or can be remedied within a reasonable time;

(4) whether the trial date can still be met if relief is granted; and

(5) the effect which the granting or refusal of leave would have on each party.

8 These are mitigatory factors which could influence favourably or otherwise the grant of relief from sanctions.

9 The Civil Procedure Rules, 1998 (England) and the authorities which relate to their interpretation, are helpful. Rule 3.9(1) captioned "Relief from sanctions", commences:

"3.9-(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances including -..."

10 Thereafter are listed nine circumstances (a to i), identical in substance to the factors contained in our Rule 26.8(2) & (3). They also include a provision similar to Rule 28.(1)(a) that the application for relief "must be ... made promptly." The footnote to Rule 3.9, inter alia, reads:

"When considering an application for relief it is essential for courts to consider each matter listed in r..3. 9 (1) systematically ..."

11 In Biguzzi v Rank Leisure PLC [1999] 1 W.L.R. 1926, the Court of Appeal (England) considered its powers under rule 3.4 to strike out a case for non-compliance of time limits, under the Civil Procedure Rules 1998. The case was governed by the transitional provisions having been filed prior to the said Rules. Lord Woolf, M.R. (as he then was), at page 1933, said:

"Under rule 3.4(2)(c) a judge has an unqualified discretion to strike out a case such as this where there has been a failure to comply with a rule. The fact that a judge has that power does not mean that in applying the overriding objectives the initial approach will be to strike out the statement of case. The advantage of the C.P.R. over the previous rules is that the court's powers are much broader than they were. In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking the case out ." (Emphasis added)

12 Emphasizing that the court's powers of managing cases must ensure that time limits are obeyed and delays are not ignored by the court, His Lordship continued at page 1933:

"There are alternative powers which the courts have which they can exercise to make it clear that the courts will not tolerate delays other than striking out cases. In a great many situations those other powers will be the appropriate ones to adopt because they produce a more just result. In considering whether a result is just, the courts are not confined to considering the relative positions of the parties. They have to take into account the effect of what has happened on the administration of justice generally. That involves taking into account the effect of the court's ability to hear other cases if such defaults are allowed to occur. It will also involve taking into account the need for the courts to show by their conduct that they will not tolerate the parties not complying with dates for the reasons I have indicated."

13 The claimant in the Biguzzi case, had sustained an injury at work in 1993 and served proceedings in 1995 on the defendant employer. In 1999 the latter's application to strike out the claim on the ground that the claimant had failed to give discovery on time, to prepare trial bundles, set the case down for trial in accordance with a court order and to prepare a calculation of special damages, was upheld by a deputy district judge, and the claim struck out. The claimant's appeal to a judge was allowed, on the grounds that both parties had been in breach of the rules, there was nothing unfair in allowing the trial to proceed and because of the delays the trial should be heard promptly. The Court of Appeal agreed with the latter decision.

14 The Biguzzi case, highlighting as it does in the exercise of the discretion, the alternatives to the draconian procedure of striking out a case for a breach under the new rules, is of assistance when considering the relief from sanctions under Rule 26.8.

15 In Finnegan v Parkside Health Authority [1998] 1 W.L.R. 411, a case governed by Order 3. r. 5 of the R.S.C. (UK), the old rules, the Court of Appeal in November 1997, allowed an appeal against a refusal to allow a plaintiff to file a notice of appeal out of time. The plaintiff's claim had been dismissed for want of prosecution due to delay. Order 3. r. 5 is similar to Rule 1.7(2) (b) of the Court of Appeal Rules (Jamaica), which empowers the Court to extend or abridge time for compliance with any rule:

"(b) ... even if the application for an extension is made after the time for compliance has passed."

16 In Finnegan's case, the Court took the view that the rules of procedure imposing time limits should be obeyed. However, there was the widest discretion in a court in those circumstances to recognize "... the overriding principle that justice must be done ..." between the parties, that the absence of a good reason for non-observance of the rules was not an inflexible and automatic consequence that a court should refuse the exercise of its discretion and that the court should also consider any prejudice involved. Hirst L.J., at page 420, endorsed the rejection of:

"... a rigid mechanistic approach ... and that dismissal of the action is an inevitable result if the applicant fails to show good reason for his procedural default."

17 The case was remitted for reconsideration.

18 In the instant case, the affidavit of Patrick Foster dated July 21, 2003, does give a reason why a material aspect of the order for disclosure made on May 19, 2003, was not complied with. He said at paragraph 2, inter alia:

"... while I have now located the Minute Book, I have not yet located the transaction file, and need more time to do so ... I will need at least another month ..."

19 These documents were not in the possession of the appellant. Furthermore, the appellant's application for extension of time and relief from sanctions, albeit made orally to the trial court on July 21, 2003, should not properly be viewed as "not made promptly." The order for...