Jason M Farlane v Cable & Wireless Jamaica Ltd
| Jurisdiction | Jamaica |
| Judge | Dale Staple, J |
| Judgment Date | 04 July 2022 |
| Year | 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. SU2019CV02631 |
(Administrator Ad Litem in the Estate Of Carol McFarlane, Deceased, Intestate)
[2022] JMSC Civ 107
CLAIM NO. SU2019CV02631
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Pleadings — Amendment to Pleadings — Substitution of Parties — Whether Claimant changed her status as one party to another party — Whether Claimant's Change in status is the same as substitution of a party — Whether Claimant permitted to substitute a claimant under the general provisions relating to amendment of statement of case before a Case Management Conference.
Pleadings — Amendment to Pleadings — Relation Back Principle of Amendments to Pleadings — Whether amendment to sue as Administratrix renders entire claim a nullity.
Ms. Kara G. Graham Attorney-at-Law for the Claimant/Respondent
Mr. Joerio Scott, Attorney-at-Law, instructed by Samuda & Johnson Attorneys-at Law for the Defendant
Dale Staple, J (AG)
On or about the 29 th June 2016, the deceased husband of the now deceased Carol McFarlane allegedly met his demise when he allegedly became entangled in some wires the Claimant claims belonged to the Defendant whilst he was riding his motor cycle along the Agualta Vale Main Road in the parish of St. Mary.
The case for the Claimant is that the wires they claim to be the property of the Defendant, had fallen in the road from a utility pole, the property of the Defendant as a result of the negligence of the Defendant and the Defendant negligently left the fallen wires in the road. As a result, the Claimant contends that the Defendant caused the death of the deceased Melbourne McFarlane when he became entangled in the wires.
To this end, Mrs. Carol McFarlane commenced this present Claim on the 28 th June 2019 as a near relation (emphasis mine) of the deceased Melbourne McFarlane pursuant to the Fatal Accidents Act for the benefit of the near relations of the deceased.
The Defendant filed a defence to this claim and the matter was proceeding to mediation. The Court is uncertain as to whether mediation has in fact taken place as there is no Report from the Mediator on the physical file.
Sometime later, the Claimant filed an Amended Claim Form and Particulars of Claim on the 23 rd February 2021 wherein she changed her status from Near Relation to Administratrix of the Estate of the deceased Melbourne McFarlane she having obtained letters of Administration. She also added a cause of action under the Law Reform (Miscellaneous Provisions) Act for the benefit of the estate of the deceased.
The Defendant thereafter filed this application to strike out the Claimant's claim as being a nullity and void ab initio (from inception).
The Court is therefore tasked with resolving the question of whether the entirety of the Claimant's claim is now rendered a nullity by virtue of the amendment or whether it can be preserved at all and to what extent.
The Court is grateful for the oral and written arguments presented by both Counsel as well as the submissions provided. All have been considered.
The material facts giving rise to the application are not in dispute and were essentially summarised in the background.
Insofar as is relevant to the considerations of this Application, the material facts are that the original claim was filed by Mrs. Carol McFarlane as a near relation under the Fatal Accidents Act.
She subsequently obtained Letters of Administration for the estate of the deceased Melbourne McFarlane on the 3 rd September 2020. She then filed the amended Claim Form and Particulars of Claim on the 23 rd February 2021.
The amendments to the Claim Form are to be found in the second paragraph where she now asserted (as underlined), “…succumbed to his injuries and by virtue of his death, his expectation of a healthy and normal life was shortened, and his estate has thereby [sic] loss and damage. The Claimant, spouse and the dependent of the deceased has loss [sic] her benefit as a result of the death of the deceased.” The prayer for relief was also amended where she has added a claim for damages for Negligence and Damages under the Fatal Accidents Act and Law Reform (Miscellaneous Provisions) Act.
The Amendments to the Particulars of Claim are as follows:
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a. Paragraph 1 was amended to change her status and the nature of the claim from the spouse and dependent making a claim under the Fatal Accidents Act to the spouse and Administratrix of the Estate of Melbourne McFarlane (emphasis mine) and bringing the action for and on behalf of the estate and for loss of dependency.
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b. The first paragraph 1 on page 2 of the Amended Particulars of Claim states in underline, “That loss and damage has been caused to his estate. The Claimant being his dependant thereby suffered loss.”
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c. Paragraph 2 on page 2 of the Amended Particulars of Claim stated that the deceased's motor cycle was completely damaged as a result of the accident.
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d. The Claimant has added Particulars Pursuant to the Fatal Accidents Act of Jamaica and Law Reform (Miscellaneous Provisions) Act.
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e. The Claimant added a claim for the expenses of obtaining a grant of administration as well as claims for special damages.
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f. The prayer was amended to ask for Damages for Negligence as well as Damages under the Fatal Accidents Act of Jamaica and the Law Reform (Miscellaneous Provisions) Act.
The Defendant then filed the present application to strike out the entirety of the Claimant's claim.
During the intervening period, the Claimant, Carol McFarlane, died and by Order of Opal Smith J (Ag), the present named Claimant, Jason McFarlane, was named Administrator Ad Litem in the estate of his mother, Mrs. Carol McFarlane to continue this present suit.
The Defendant's submissions as the Court understands them, are that the Claim has become a nullity by virtue of the fact that the deceased Claimant, by changing her status to that of an Administratrix and the relation back effect of amendments to statements of case, would be deemed to have started this claim at a time when she did not have the status of an administratrix and, as such, did not have the authority to institute the claim as administratrix. Hence, the Claim would have to be deemed a nullity and void from inception.
The Claimant's submissions are that the claim is not a nullity and the amendment is simply the Claimant amending the Claim to reflect her new status as the Administratrix of the Estate of the deceased and properly exercising her power to add a new cause of action to the proceedings as she would be allowed to do.
The Court has determined that the following are the issues to be resolved in this claim:
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(i) What is the scope of the power to amend a statement of case before a case management conference?
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(ii) Did the Claimant change her status by virtue of the Amendment and could she have done so without the permission of the Court?
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(iii) If the amendment was invalid, can the Court disallow the amendment and leave the Claim as it was before the Amendment intact pursuant to Rules 20.2(1) and 26.9 or are the proceedings an incurable nullity?
It is my view that Claimants are not at large to amend their Statements of Case before a Case Management Conference.
Part 20 of the Civil Procedure Rules governs amendments to statements of case. Rule 20.1 states as follows:
A party may amend a statement of case at any time before the case
management conference without the court's permission (emphasis mine) unless the amendment is one to which either:
(a) rule 19.4 (special provisions about changing parties after the end of a relevant limitation period); or
(b) rule 20.6 (amendments to statements of case after the end of a relevant limitation period),
Applies.
So rule 20.1 seems to give a broad power of amendment to statements of case outside of the two stated exceptions set out in 20.1. This provision applies to a party (emphasis mine). This makes it clear that this provision speaks to all parties to a claim. A party, under Rule 2.4, includes both the party to the claim and any attorney-at-law on record for that party unless any rule specifies or it is clear from the context that it relates to the client or to the attorney-at-law only. This provision therefore applies to both Claimant and Defendant or a person joined as an interested party.
However, when one examines the language of Part 19, concerning the addition and/or substitution of parties, a different picture seems to emerge.
Rule 19.2(1) gives a Claimant (emphasis mine) the power to add a new defendant(s) to the claim at any time before case management conference without permission of the Court (emphases mine). There is therefore a distinction between the provisions under rule 20.1 and rule 19.2(1) where parties are concerned. It appears to me that a Claimant is more constrained in terms of the amendments to statements of case where the addition or substitution of parties is concerned.
Rules 19.2(3)-(5) seem to confine any additional powers of change of parties to the court. By not naming “the Claimant” or “a party” as being capable of doing these changes on their own by amendment without permission (as it did in rule 19.2(1)), the rules seem to exclude the power of “the Claimant” or “the party” so to do even before a case management conference. I will set out the relevant provisions as follows:
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(3) The court may add a new party to proceedings without an application, if —
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(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
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(b) there is an issue involving the new...
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