Island Hoppers Helicopter Tours Ltd v MBJ Airports Ltd
| Jurisdiction | Jamaica |
| Judge | Bertram-Linton |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] JMSC Civ 192 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2009 HCV 03355 |
| Date | 17 December 2013 |
[2013] JMSC Civ. 192
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2009 HCV 03355
Application for appointment of experts — Principles to Consider — Rules 32.9, 32.10, 32.11
On the 3 rd July 2007 a helicopter owned by the claimant's company and parked in premises owned by the defendant was damaged. The claimant alleges that the defendant is responsible, while the defendant denies all liability.
The matter proceeded along the normal course and Case Management Conference was first held and orders made on 12 th June 2012. A further Case Management Conference was set for October 19, 2012 and trial scheduled for the 15 th and 16 th May 2013. Pre Trial Review was scheduled 5 th April 2013 but the applications before this court have intervened as preliminary issues to be determined.
By notice of application filed on January 28, 2013 the claimant, sought to have orders:-
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‘1. That Captain Gregory Fox of the Jamaica Civil Aviation Authority be appointed as a joint expert of the court and be permitted to give an expert report detailing the following:
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a) His or her qualifications and experience in the aviation industry;
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b) The requirements of the JCAA regulations, Schedule 21, Sub-Part D, r 21.150 dealing with Apron Management and r 21.155 dealing with Apron Safety Management;
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c) The requirements and recommendations contained in Vol 1 of Annex 14 of the Chicago Convention and in particular s 3.3.12 and Vol 2, s 3.1.59 and s 3.1.60;
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d) The function of the JCAA in approving the layout of parking and apron areas for licensed aerodromes;
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e) Whether this approval at (d) warrants the safety of those approved parking areas;
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f) The process that an aircraft pilot must follow on approach to landing;
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g) The scope of responsibility of the JCAA's air traffic controllers as distinct from the airport operator's ground control as concerns:
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a. The direction of aircraft to parking areas after landing;
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b. The safety of aircraft while parked in designated and approved parking areas; and
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c. The movement of aircraft, ground vehicles and people on the taxiway and the airside.
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h) The susceptibility of parked aircraft to jet blast damage if parking areas are located too close to the holding bay.
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2. That the report of Tim Kelley of Kelley Aviation Services and Pedro Mesa of Airclaims Inc. be accepted in evidence without the need to call the makers thereof as witnesses at the trial of this matter pursuant to s 31E of the Evidence (Amendment) Act 1995.
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3. That specific disclosure of the Defendant's Operations Manual is given.
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4. That the Claimant be permitted to amend his Claim Form and Particulars of Claim. Service of the amended documents to be done within 12 days of the date of this order.’
On the 6 th February, 2013 Claims 3 and 4 of the application were addressed as
the following orders were made:
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‘1. The claimant's application to Amend Claim Form and Particulars of Claim is granted.
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2. The claimant is permitted to file and serve amended documents on or before February 18, 2013.
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3. The defendant's application to amend defence is granted.
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4. The defendant is permitted to file and serve the amended documents on or before February 28, 2013.
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5. The claimant's application for specific disclosure of the Defendant's operations manual is granted on the claimant's undertaking being given in writing to the Defendant's attorneys on or before February 18, 2013.
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6. Case Management Conference is adjourned to April 10, 2013 at 2pm for two hours.
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7. Pre Trial Review set for April 5, 2013 is vacated.
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8. Claimant's attorney to prepare file and serve order herein.
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9. Costs to be costs in the claim.’
The issues in requests one (1) and two (2) were reserved for consideration on the 10 th April 2013.
On that date we entertained submissions on the applications to:
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a) appoint Captain Gregory Fox as a joint expert of the court …
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b) admit the report of Tim Kelley of Kelley Aviation Services without the need to call him as a witness pursuant to S 31E of the Evidence (Amendment) Act 1995.
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c) admit the report of Pedro Mesa of Airclaims Inc into evidence without the need to call the makers thereof as witnesses at the trial of this matter pursuant to Section 31E of the Evidence (Amendment) Act 1995.
The document allegedly prepared by Mr. Tim Kelley is marked JM I and is an exhibit to an affidavit sworn to by a Mr. John Morris on the 24 th January 2013 and filed on 28 th January 2013.
Mr. Morris a director of the claimant's company says that he hired Mr. Kelley to inspect the damage to the helicopter and to render a report. (Paragraph 3 Affidavit of John Morris in support of application for court orders filed on 28 th January, 2013). He thereafter attaches a typed document with the name “Timothy S. Kelley” typed at the end of the document, a company name Kelley Aviation Services Inc, a street address in Halifax, PA, an email address and a mobile phone number.
The defendant's attorney took strong objection to this application being granted pointing out that the document is unsigned and does not meet the requirements laid down in Section 31E of the Evidence (Amendment) Act.
These submissions were examined at length and a ruling made to refuse Mr. Kelly unsigned and undated report to be used, reasons were given in chambers on the 10 th April 2013. It is not proposed to rehash all those today except to say that Mr. Kelley's refusal to attend court and to co-operate any further in the proceedings was very marked and quite noteworthy. John Morris' affidavit of the 28 th January, 2013 at paragraph 5 disclosed that Mr. Kelley says in correspondence dated 27 th November, 2012.
‘I will not endorse a letter to the court or anyone else. I sent a letter previously. …I will not be a party to any court hearing, discussion or email any further about the helicopter…I have no interest it (sic) coming to Jamaica to attend court or to qualify as a witness in the case, my work was finished the day I left after looking at the helicopter. I wrote the report after the damages to the helicopter, submit (sic) the report, got paid. My work is done.’
The defendant and even the court would be left without vital recourse if the report were allowed in without more.
The report prepared by Pedro Mesa was only challenged in so far as it referred to the Kelley's document and as such Mesa's report was accepted and that portion as marked by the court was excluded.
This section is in the Area under the heading ‘ Damage Details ’ on page 5. It begins with the word ‘The’ and includes the next of that sentence to the word ‘experience’.
Then in the next paragraph it begins with the word ‘and’ and continues to the words‘services Inc’. So that the sentence would now read, ‘Based on our inspection during the survey, we can report the damage to the helicopter as briefly defined below.’
Captain Fox's is said to be widely experience in the affairs of the aircraft and airline industry and his qualification are extensively outlined in Exhibit CLS – 1 to the Affidavit of Christopher Samuda filed in support of the application on January 28, 2013. The claimant says through Samuda that Mr. Fox is an impartial knowledgeable experienced voice from the Jamaica Civil Aviation Authority, the regulators of the industry who can assist the court‘in resolving these aviation – related issues.’
On the other hand the defendant says that Captain Fox's connection to the Civil Aviation Authority is potentially dangerous since that organization may be implicated in the examination of the issues and their outcome. They say as well that Fox's contribution is likely to usurp the role of the tribunal of fact and law as to how the damage was occasioned.MIDLAND BANK TRUST CO. v HETT, STUBBS KEMP [1979] CH 384 [1979] CH 384.
Part 32 of the Civil Procedure Rules delineate the provision and facilitation of expert evidence to the court. It speaks to the experts' appointment, their duty and gives procedural guidelines for the introduction of such evidence. UK Practice Direction onExperts and Assessors which supplement Part 35 of their Rules dealing with the appointment of Experts.
In addition the Jamaican Court of...
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