Jamar Grant v Angela Lee
| Jurisdiction | Jamaica |
| Judge | A. Nembhard J |
| Judgment Date | 12 December 2022 |
| Neutral Citation | [2022] JMSC Civ 214 |
| Docket Number | CLAIM NO. 2016 HCV 03614 |
| Court | Supreme Court (Jamaica) |
| Year | 2022 |
and
JM 2022 SC 188
[2022] JMSC Civ 214
CLAIM NO. 2016 HCV 03614
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Civil Procedure — Interlocutory application to strike out impugned paragraphs contained in specific affidavits — Relevance — Whether the evidence contained in those affidavits is relevant — Admissibility — Admissibility of evidence contained in specific affidavits — Whether the statements contained in the affidavits are scandalous — Whether the statements contained in the affidavits are irrelevant or otherwise oppressive rendering them inadmissible — Whether the statements contained in specific affidavits if allowed to remain would impede the just disposition of the matter — Whether the prejudicial effect of the statements contained in specific affidavits outweigh their probative value — Civil Procedure Rules, 2002, rules 17.5(5), 17.6, 29.1(1), 29.1(2), 30.3(1) and 30.3(3)
Mr Richard Reitzin instructed by Reitzin & Hernandez for the Respondent/Claimant
Mrs Tameka Jordan instructed by McDonald Jordan & Company for the 1 st Defendant
Ms Sashawah Newby for the Applicant/2 nd Defendant
This is an application to strike out portions of the affidavit evidence of the Respondent/Claimant, Mr Jamar Grant. The salient features of the application surround the admissibility of portions of the affidavit evidence of Mr Grant, in respect of the hearing of an interlocutory application for interim payment, as well as that of other interlocutory applications which remain extant. The application specifically raises the issue of whether certain statements made in the affidavit evidence of Mr Grant and that adduced on his behalf, are scandalous, irrelevant and/or otherwise oppressive in nature, such as to render them inadmissible.
By way of a Notice of Application for Court Orders, which was filed on 25 May 2021, the Applicant/2 nd Defendant, Mr Kirk Lee, seeks the following Orders: —
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1. That lines 4 to 6 of paragraph 10 of the Third Affidavit of Jamar Grant in Support of Amended Application for Interim Payment and other Applications, filed herein on 14 January 2021, to wit:- “ and further, that it is reasonable to infer therefrom that General Accident Insurance Company Limited was, and remains, willing to pay me the policy limit, which he, Mr. Reitzin, is aware is $3 million”, be struck out;
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2. That the Affidavit of Winston Stewart, filed herein on 21 April 2021, be struck out, or, alternatively, that paragraphs 12, 13, 16, 18, 19, 20, 21 and 22 of the Affidavit of Winston Stewart, filed herein on 21 April 2021, be struck out;
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3. That paragraphs 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 17 of the Affidavit of Jamar Grant in Support of Several Applications, filed herein on 3 May 2021, be struck out;
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4. That the Affidavit Regarding Arguments made by the Defendants' Attorneys at the Case Management Conference, held on 24 November 2020, filed herein on 11 May 2021, be struck out;
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5. That the costs of this application be awarded to the 2 nd Defendant;
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6. That wasted costs be paid by the Claimant's Attorney-at-Law;
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7. That there be liberty to apply, and
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8. That there be such further or other relief as this Honourable Court deems just.
The application is made on the bases that: —
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1. Pursuant to Part 30.3(1) of the Civil Procedure Rules, 2002, as amended (“CPR”), the general rule is that an affidavit may contain only such facts as the deponent is able to prove from his or her own knowledge;
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2. Pursuant to Part 30.3(3) of the CPR the court may order that any scandalous, irrelevant or otherwise oppressive matter be struck out of any affidavit;
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3. The Third Affidavit of Jamar Grant in Support of Amended Application for Interim Payment and other Applications, filed herein on 14 January 2021, the Affidavit of Winston Stewart, filed herein on 21 April 2021 and the Affidavit of Jamar Grant in Support of Several Applications, filed herein on 3 May 2021, contain statements, some of which the deponent is not able to prove from his own knowledge; which are scandalous, irrelevant or oppressive; and which are inadmissible, as a matter of law and are therefore scandalous, irrelevant and/or otherwise oppressive;
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4. That the Affidavit Regarding Arguments made by the Defendants' Attorneys, at the Case Management Conference held on the 24 November 2020, filed herein on 11 May 2021: —
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a. Improperly attempts to re-litigate the Notice of Application to Call and Put in Expert Evidence, which was refused by the Honourable Mrs Justice Tara Carr (Ag.), on 24 November 2020, a judge of co-ordinate jurisdiction, and is an abuse of the court's process;
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b. Contains statements that are irrelevant or oppressive;
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c. Misrepresents facts, including the basis for the Honourable Mrs Justice Tara Carr's (Ag.) refusal of the Notice of Application to Call and Put in Expert Evidence, stating, contrary to the several bases referred to by Her Ladyship, that, “her Ladyship was only concerned that the letter of instructions was not attached to the medical reports” and is therefore an abuse of the court's process;
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d. Does not advance the overriding objective of saving expense and allotting an appropriate share of the court's resources to the matter;
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e. Is sworn by the Claimant's Attorney-at-Law, in breach of the Legal Profession Act and the Legal Profession (Canons of Professional Ethics) Amendment Rules, 1983;
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5. Further, pursuant to the inherent jurisdiction of the court, the court may strike out any matter which is an abuse of process or which is likely to impede the just disposition of the claim;
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6. Pursuant to rule 64.13(2) of the CPR, the court may, by order, direct an attorney-at-law to pay the whole or part of any wasted costs;
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7. That the Claimant's Attorney-at-Law has acted improperly and unreasonably, as outlined in the grounds herein.
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8. That it is in the interests of justice and in the furtherance of the overriding objective of the CPR, to grant the relief sought;
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9. That, unless the relief claimed is granted, the 2 nd Defendant will suffer undue prejudice and tremendous hardship.
On 26 August 2016, the Respondent/Claimant, Mr Jamar Grant, filed a Claim Form and Particulars of Claim, which initiated an action against the 1 st Defendant, Ms Angela Lee as well as the Applicant/2 nd Defendant, Mr Kirk Lee. The Claim emanates from a motor vehicle collision which allegedly occurred on 3 October 2015, along Mannings Hill Road, in the parish of Saint Andrew. At the time of the alleged collision, Mr Grant was riding a 2014 Power K motor cycle, registered 5499 J (“the motor cycle”), when he observed a black 2003 Suzuki Swift motor car, registered 4062 DZ (“the Suzuki Swift”), approaching from the opposite direction. Mr Grant alleges that, at the time of the motor vehicle collision, the Suzuki Swift was being driven by Mr Lee in its incorrect lane. Mr Grant contends that he veered to his right at the same time that Mr Lee veered to his left and that, in those circumstances, both vehicles collided.
It is further alleged that, at the time of the motor vehicle collision, Mr Lee was acting as the servant and/or agent of Ms Lee, the registered owner of the Suzuki Swift.
Mr Grant asserts that, as a consequence of the alleged motor vehicle collision, he sustained injury, damage and loss.
On 29 September 2020, Mr Grant filed a Notice of Application for Interim Payment. By way of that application, Mr Grant seeks an Order mandating Ms Lee to make an interim payment in the sum of Three Million Dollars ($3,000,000.00), or, such other sum as the court may deem appropriate.
The application for interim payment is supported by the Affidavit of Jamar Grant, which was also filed on 29 September 2020. Subsequent to that, on 6 October 2020, the Second Affidavit of Jamar Grant in Support of Application for Interim Payment, was filed.
On 14 January 2021, the Third Affidavit of Jamar Grant in Support of Amended Application for Interim Payment and other Applications, was filed.
On 21 April 2021, the Affidavit of Winston Stewart, was filed.
On 3 May 2021, the Affidavit of Jamar Grant in Support of Several Applications, was filed.
On 11 May 2021, the Affidavit regarding Arguments made by the Defendants' Attorneys at the Case Management Conference, was filed.
The impugned evidence which is central to the instant application is contained in these affidavits.
Mr Lee challenges lines four (4) to six (6) of paragraph ten (10) of the Third Affidavit of Jamar Grant in Support of Amended Application for Interim Payment and other Applications, which was filed on 14 January 2021. That portion of the affidavit evidence reads as follows: —
“10. … and, further, that it is reasonable to infer therefrom that General Accident Insurance Company Limited was, and remains, willing to pay me the policy limit which he, Mr Reitzin, is aware is $3 million.”
The application to strike out seeks to have the Affidavit of Winston Stewart struck out in its entirety, or, alternatively, that the following paragraphs be struck out: —
“12. I saw tyre skid marks on the roadway. One skid mark began on the gas station side of Mannings Hill Road, i.e. the east side, and curved slightly along Mannings Hill Road to the embankment side, i.e. the west side of Mannings Hill Road and ended at the right rear wheel of the Suzuki Swift.”
“13. I saw another skid mark on the roadway which started on the gas station side of Mannings Hill Road, i.e. the east side, and curved to the right and also ended at the right rear wheel of the Suzuki Swift.”
“16. Someone said to him “How you a think bout your mother's car and the man there dead.” The driver did...
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