Jamaica Public Service Company Ltd v Charles Vernon Francis

• Jurisdiction: Jamaica
• Judge: Morrison P,F Williams JA,Edwards JA
• Judgment Date: 10 February 2017
• Neutral Citation: [2017] JMCA Civ 2
• Docket Number: CIVIL APPEAL NO 126/2015
• Court: Court of Appeal (Jamaica)
• Date: 10 February 2017

Between

Jamaica Public Service Company Limited

Appellant

and

Charles Vernon Francis

1st Respondent

and

Columbus Communications Jamaica Limited (trading as Flow)

2nd Respondent

[2017] JMCA Civ 2

Before:

The Hon Mr Justice Morrison P

The Hon Mr Justice F Williams JA

The Hon Miss Justice Edwards JA (AG)

CIVIL APPEAL NO 126/2015

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Written submissions filed by Livingston Alexander & Levyfor the appellant

Written submissions filed by Reitzin & Hernandezfor the 1 ^st respondent

PROCEDURAL APPEAL

(Considered on paper pursuant to rule 2.4(3) of the Court of Appeal Rules 2002)

Morrison P

1 I agree with the reasoning and conclusions of Edwards JA (Ag) and have nothing further to add.

F Williams JA

2 I too agree.

Edwards JA (AG)

Background

3 This is an appeal against the decision of Rattray J made on 18 August 2015, where he refused the appellant's application for relief from sanctions. The history of the matter dates back to 28 August 2007, where the first respondent (the claimant in the court below) who was employed as an electrician to Columbus Communications Jamaica Limited, (the first defendant in the court below), received an electrical shock whilst replacing cables on a utility pole belonging to the appellant (the second defendant in the court below). The respondent suffered personal injuries and as a result, he filed a claim for negligence against the first defendant and the appellant.

4 When the claim came on for case management, directions were given for the parties to file and serve witness statements on or before 9 May 2015. The appellant did not file its witness statement in the time allotted. As a result, on 26 May 2015 the appellant filed an application seeking relief from sanctions and for an extension of time to file its witness statement. One witness statement was in fact filed on 16 July 2015, the same day as the hearing of the application. The first respondent had also applied to strike out the appellant's statement of case for failing to comply with the case management orders. That application was adjourned.

5 The appellant's application for relief from sanctions was supported by affidavit sworn to by David Fleming, an attorney-at-law and the appellant's legal officer. The application was based on the fact that the appellant's failure to file its witness statements was not intentional, it being due to the fact that the intended witnesses were “currently travelling outside of the parish as well as the island for an extended period of time due to work related commitments”. It was also contended that the late filing of the statements would not affect the trial date, which had been set for 16 – 27 November 2015. However, the application was opposed by the first respondent on the basis that: (i) the affidavit in support of the application was defective in that it did not comply with rule 30.3 of the Civil Procedure Rules (CPR), as the source of the information and belief was not disclosed and (ii) that the explanation proffered for the delay was not a good explanation.

6 After hearing oral and written submissions, the learned judge refused to grant relief from sanctions on the basis that the affidavit in support of the application was in breach of the CPR, rule 30.3 and, in any event, the appellant did not give a good explanation for failure to file its witness statement within the time limited in the case management orders.

Grounds of Appeal

7 On 4 December 2015, this court granted leave to the appellant to appeal that decision. The grounds of appeal filed may be summarised as follows:

• (a) The learned judge erred in law when he determined that the appellant's affidavit in support of the application for relief from sanction is in breach of rule 30.3 of the CPR in failing to identify the source of the information for the statement contained in paragraph 5 and was therefore inadmissible.

• (b) The learned judge erred in concluding that there was no good explanation because the use of the word ‘currently’ could only address the situation present at the time when the affidavit was being sworn. The learned judge erred in concluding that the appellant's explanation was inadequate and that it was required to give an explanation for the entire period from the date of the case management order rather than for the period when the breach occurred.

• (c) Further, the learned judge failed to apply the overriding objective, and the fundamental principle of access to justice whereby parties are to have a right to have their cases heard on the merits and should not be defeated by a purely procedural and technical breach which does not in any way impact the trial or justice of the case: Watson v Fernandes [2007] CCJ 1 (AJ).

• (d) The learned judge erred in the exercise of his discretion in awarding costs of the application to be paid by the appellant, when there are special circumstances which warrant a departure from the general rule.

Ground (a) — Was the affidavit in breach of rule 30.3

8 Counsel for the appellant argued that the learned judge fell into error when he failed to take into account the fact that the affidavit was made by the legal officer to the appellant who had conduct of the claim. She also argued that the learned judge erred when he drew the inference that the facts sworn to in the affidavit were not within the affiant's personal knowledge. Counsel noted that rule 30.3 only placed an obligation on an affiant to state the source of his information and belief when it is not within the affiant's personal knowledge. Counsel pointed out that, in the instant case, Mr Fleming did in fact have personal dealings with the intended witnesses as the appellant's employee and legal officer with conduct of the case.

9 Counsel for the appellant submitted that the learned judge was plainly wrong in failing to draw the inference that Mr Fleming would naturally be working and liaising with the potential witnesses. She further submitted that the lack of detail as to whether the claim triggered an investigation, the extent to which he was involved in the process and the scope of his involvement were not material facts, which as a result of their omission, would disable the learned judge from being in a position to properly consider Mr Fleming's evidence; that evidence being that the witnesses had been unavailable to prepare and finalise witness statements due to their work commitments which took them outside of the corporate area and the jurisdiction.

10 Counsel pointed out also that Mr Fleming had sworn in the affidavit, at paragraph 3, that the facts stated were within his personal knowledge unless otherwise indicated and therefore the presumption of personal knowledge was in the affiant's favour. Counsel argued that, as the facts sworn to by the affiant were within his personal knowledge, the need to state the source of information did not arise. Moreover, counsel argued, there had been no challenge from the respondent that the information was not within the affiant's personal knowledge and in the absence of any evidence to the contrary, there was no valid basis for rejecting the evidence.

11 Counsel also submitted that the learned judge fell into error in dismissing the affiant's statement that he reviewed the relevant documents and information, as there was nothing before the court to suggest that the evidence was not credible. Counsel noted that in the defence to the claim filed, Mr Fleming had personally certified the truth of the contents. Counsel further argued that, in holding that Mr Fleming should have identified each document which was reviewed, the learned judge acted unreasonably in requiring an onerous task within the context of an application for relief from sanctions.

12 For his part, counsel for the first respondent submitted that the sole affidavit relied upon by the appellant contained hearsay statements on information and belief in paragraph 5 and failed to state the source of such information and belief as required by rule 30.3(2)(b). It was submitted that such evidence was hearsay and thereby inadmissible. It was further submitted that, as a result, there was no evidence of any explanation for failing to comply with the case management order to file witness statement within the time limited by the order and therefore the judge was correct in his decision to refuse the appellant's application. Counsel also argued that, on a separate issue, the affidavit spoke to the unavailability of witnesses at a point in time, 12 days after the court ordered deadline. The evidence, it was argued, was therefore irrelevant and for that reason also inadmissible.

Decision on ground (a)

13 I am indeed cognizant of the general rule that this court will not interfere with the decision of a learned judge at first instance unless it is demonstratively clear that, in arriving at that decision, he took the wrong approach, or that the decision arrived at was plainly the wrong one based on the circumstances before him or based on the applicable law relating to the issue. Before this court will interfere, it must be satisfied that the learned judge had fallen into error. I will therefore apply the principles set out in Hadmor Productions Limited et al v Hamilton et al [1982] 1 All ER 1042 and Watt v Thomas [1947] 1 All E R 582] in reviewing the learned judge's decision to determine whether he was plainly wrong to refuse the relief sought.

14 The application for relief was made pursuant to rule 26.8 of the CPR. An application for relief from sanctions under rule 26.8(1) is operative where the court makes an order or gives directions and specifies the consequences for failure to comply or where the rules provide a sanction for non-compliance. In respect of the case management orders made in this case, there were no consequences specified in the order itself for a failure to...