Jamar Grant v Angela Lee

• Jurisdiction: Jamaica
• Judge: A. Nembhard J
• Judgment Date: 11 October 2022
• Court: Supreme Court (Jamaica)
• Year: 2022
• Docket Number: CLAIM NO. 2016 HCV 03614

[2022] JMSC Civ 186

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2016 HCV 03614

Between

Jamar Grant

Claimant/Respondent

and

Angela Lee

1 ^st Defendant

and

Kirk Lee

Applicant/2 ^nd Defendant

IN CHAMBERS

Mr Richard Reitzin instructed by Reitzin & Hernandez for the Respondent/Claimant

Mrs Tameka Jordan instructed by McDonald Jordan & Company for the 1st Defendant

Ms Sashawah Newby for the Applicant/2 ^nd Defendant

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)

A. Nembhard J

INTRODUCTION

1 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. The application specifically raises the issue of whether certain statements made in the affidavit evidence of Mr Grant, are scandalous, irrelevant and/or otherwise oppressive in nature, such as to render them inadmissible.

2 The application is encapsulated in a Notice of Application for Court Orders, which was filed on 20 November 2020, by virtue of which the Applicant/2 ^nd Defendant, Mr Kirk Lee, seeks the following Orders: -

• 1. That paragraphs 9, 11, 13, 14, 15, 18, 19, 22, 23, 30 and the last sentence in paragraph 16 of the Affidavit of Jamar Grant in Support of Application for Interim Payment, filed herein on 29 September 2020, to wit, be struck out;

• 2. That paragraphs 7 and 8 of the Second Affidavit of Jamar Grant in Support of Application for Interim Payment, filed herein on 6 October 2020, be struck out;

• 3. That the costs of this application be awarded to the 2 ^nd Defendant;

• 4. That there be liberty to apply; and

• 5. That there be such further or other relief as this Honourable Court deems just.

3 The application is made on the bases that: -

• 1. Pursuant to Part 30.3(3) of the Civil Procedure Rules 2002, as amended (“CPR”), the court may order that any scandalous, irrelevant or otherwise oppressive matter be struck out of any affidavit;

• 2. The Affidavit of Jamar Grant in Support of Application for Interim Payment, filed herein on 29 September 2020 and the Second Affidavit of Jamar Grant in Support of Application for Interim Payment, filed herein on 6 October 2020, contain statements which are inconsistent with the 2nd Defendant's Further Amended Defence and statements which are inadmissible as a matter of law and are therefore scandalous, irrelevant and/or otherwise oppressive;

• 3. Further, pursuant to the inherent jurisdiction of the court, the court may strike out any matter which is an abuse of process or is likely to impede the just disposition of the claim;

• 4. That it is in the interests of justice and in the furtherance of the overriding objective of the CPR to grant the relief sought;

• 5. That, unless the relief claimed is granted, the 2nd Defendant will suffer undue prejudice and tremendous hardship.

BACKGROUND

The factual substratum

4 On 26 August 2016, the Respondent/Claimant, Mr Jamar Grant, filed a Claim Form and Particulars of Claim, which initiated an action against the 1st Defendant, Ms Angela Lee as well as the Applicant/2nd 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.

5 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.

6 Mr Grant asserts that, as a consequence of the alleged motor vehicle collision, he sustained injury, damage and loss.

7 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.

8 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. The impugned evidence which is central to the instant application is contained in these two (2) affidavits.

The impugned evidence

9 The impugned paragraphs in the Affidavit of Jamar Grant in Support of Application for Interim Payment, which was filed on 29 September 2020, are set out below: –

“9. The second defendant has effectively admitted that he was driving while intoxicated. I say so for the following reasons.”

“15. Thus, the second defendant has never denied that while waiting for the police to attend the scene of the collision, he went into the service station where he purchased water and chewing gum in an attempt to mask his intoxication.”

“16. … So, the adoption of that method of pleading by the second defendant is an attempt to evade admitting the truth by breaching the Civil Procedure Rules, 2002.”

“18. The second defendant has failed, refused and/or neglected to answer any of the questions.”

“19. Further, the second defendant has never alleged that at the time of the accident he was sober.”

“22. During the course of the case management conference Her Ladyship asked the second defendant, Mr. Kirk Lee, whether he had been subjected by the police to a breathalyzer test following the accident which is subject of these proceedings, to which he responded ‘Yes. ‘”

“23. In addition, Her Ladyship asked Mr Wisdom whether Mr. Kirk Lee had been charged with driving while intoxicated to which Mr. Wisdom answered ‘Yes, he was charged. ‘”

“30. So -

i) the second defendant has effectively admitted, on the pleadings, that he was intoxicated at the time of the accident;

ii) the second defendant has effectively admitted, on the pleadings, that while waiting for the police attend the scene of the accident, he bought water and chewing gum in an attempt to mask his intoxication;

iii) the second defendant has failed, refused and/or neglected to answer a request for information;

iv) the second defendant has admitted that he was subjected to a breathalyzer test; and

v) the second defendant has admitted that he was charged with a driving offence.”

10 The impugned paragraphs of the Second Affidavit of Jamar Grant in Support of Application for Interim Payment, which was filed on 6 October 2020, are as follows: -

“7. The second defendant has not denied that shortly after the accident, and while waiting for the police to arrive at the scene, he purchased water and chewing gum in an attempt to mask his intoxication.”

“8. The second defendant has effectively admitted that he was intoxicated at the time of the accident.”

11 Learned Counsel Ms Sashawah Newby, in her submissions on behalf of the Applicant/2 ^nd Defendant, Mr Kirk Lee, withdrew the complaint in relation to paragraphs 11, 13 and 14 of the Affidavit of Jamar Grant in Support of Application for Interim Payment, which was filed on 29 September 2020. Accordingly, it is not intended that this judgment will treat with those paragraphs.

12 Additionally, Learned Counsel Mrs Tameka Jordan indicated, on behalf of the 1 ^st Defendant, Ms Angela Lee, that her posture is to support the submissions advanced on behalf of the Applicant/2 ^nd Defendant.

THE ISSUES

13 The application raises the following primary issue for the Court's determination: -

i. Whether the impugned paragraphs of the Affidavit and Second Affidavit of Jamar Grant in Support of Application for Interim Payment, each filed on 29 September 2020 and 6 October 2020, respectively, ought properly to be struck out;

14 In order to determine the primary issue raised by the application, the following sub-issues must also be resolved: -

• (a) Whether the statements contained in the impugned paragraphs are relevant to the determination of the application for interim payment;

• (b) Whether the statements contained within the impugned paragraphs are scandalous, irrelevant and/or otherwise oppressive in nature, rendering them inadmissible;

• (c) Whether the impugned paragraphs are likely to impede the just disposition of the matter.

THE LAW

Interim payments

15 Part 17 of the Civil Procedure Rules, 2002 (“the CPR”), empowers the court to make orders with respect to an array of interim remedies or interim relief. One of the orders which a litigant may seek is an order for interim payment. An interim payment, as contemplated by rule 17.1(1)(i) of the CPR, is a payment by a defendant of a sum on account of any...