Jason Taylor v Leonard Wright
| Jurisdiction | Jamaica |
| Judge | Master N. Hart-Hines |
| Judgment Date | 19 December 2019 |
| Docket Number | CLAIM NO. SU2019CV00117 |
| Court | Supreme Court (Jamaica) |
| Date | 19 December 2019 |
[2019] JMSC Civ 259
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. SU2019CV00117
Ms. Nicola Allison instructed by Bignall Law for the Applicant/Claimant.
Civil procedure — Claim form filed close to the expiration of limitation period — Application to extend the validity of the claim form filed within life of the claim form — Whether all reasonable steps taken to serve claim form — Whether it is appropriate to extend validity of the claim form after claim became time-barred — Rule 8.15(4) of the Civil Procedure Rules — Considerations for the Court.
On December 19, 2019 I heard an application to extend the validity of the claim form, pursuant to Rule 8.15 of the Civil Procedure Rules (hereinafter “CPR”) and an application to permit service by a specified method, pursuant to Rule 5.14 of the CPR. I gave my decision on that date and I promised to put my reasons in writing. I now do so.
By Without Notice Application (hereinafter “the application”) filed on February 15, 2019, the Applicant/Claimant applied for an order extending the validity of the claim form. The Applicant also sought an order dispensing with personal service of the claim form and permitting service via publication of a Notice of Proceedings in a newspaper, or, service on British Caribbean Insurance Company Limited (“BCIC”), which insured the Defendant's vehicle in February 2013. The claim arises from a motor accident which occurred on February 28, 2013, along Lyndhurst Road in the parish of St. Andrew. It is alleged by the Applicant that he was injured when a vehicle bearing registration 5789EW was so negligently operated by Defendant that he caused a collision with vehicle bearing registration CG150, driven by the Applicant.
The claim form and the particulars of claim were filed on January 15, 2019, one-month shy of the expiration of the limitation period in respect of the personal injury claim. Details of the nature of the injuries sustained by the Claimant are not indicated in particulars of claim. It is also noted that there was no medical report accompanying the claim form, but there is a reference in particulars of claim to the cost of a medical report issued by the Kingston Public Hospital. The claim form and the particulars of claim are signed by the Claimant's Attorney, Mr. Vaughn Bignall.
On February 15, 2019 the application was filed supported by an affidavit sworn by Attorney, Mr. Vaughn Bignall and an affidavit sworn by Mr. Howard Wilks, Process Server. The grounds of the application can be summarised as follows:
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1. The Process Server Howard Wilks attempted to effect service on the Defendant without any success.
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2. The whereabouts of the Defendant is unknown.
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3. The Defendant was insured by BCIC at the time of the accident.
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4. Publication of the Notice of Proceedings in The Gleaner is likely to give the Defendant notice of the action.
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5. The granting of orders sought therein will enable the court to proceed with the claim fairly and expeditiously.
The affidavit of Howard Wilks sworn and filed on February 15, 2019 stated that in the course of his employment as Process Server employed to Bignall Law, he received instructions on January 15, 2018 to serve the claim form, the particulars of claim and other accompanying documents on the Defendant. As a result of instructions received, on January 22, 2018 between 1 p.m. and 2 p.m., he proceeded to Jackson Road, Kingston 10 in the parish of Saint Andrew, the Defendant's last known address. However, his attempt to locate the Defendant was unsuccessful as he was told by residents that the Defendant is not known in the area.
The affidavit of Vaughn Bignall sworn and filed on February 15, 2019 indicated that he received instructions from the claimant and as a result, he commenced the action against the Defendant. Mr. Bignall averred that the Defendant's motor vehicle registered 5789EW was insured at the time of the accident by BCIC and that Notice of Proceedings were served on BCIC and it accepted same. As such, Mr. Bignall alleged that there was a contractual relationship with between BCIC and the Defendant and that service on BCIC would cause the claim form to come to the Defendant's knowledge. In addition, Mr. Bignall stated that The Gleaner is “the newspaper of general circulation in this country and this newspaper is most likely to give the Defendant(s) notice of the pendency of the action”. Finally, Mr. Bignall stated that the Claimant had taken all reasonable steps to locate the Defendant and effect service within the prescribed period but has not been able to do so. The affidavit does not explain why the proceedings were only instituted in 2019.
On February 28, 2019, the claim became statute barred. The claim form expired on July 15, 2019. The application was fixed for hearing on December 19, 2019, ten months after the claim became time-barred.
During the hearing on December 19, 2019, the Court enquired of counsel Ms. Allison whether any previous claims were filed before January 2019 and when Bignall Law commenced corresponding with BCIC. Counsel stated that her file did not reveal that any previous claims were filed, but there was evidence of correspondence between Bignall Law and BCIC six years earlier in 2013.
During the hearing, the Court identified issues for consideration in relation to the application made pursuant to CPR Rule 8.15(4), and allowed counsel an opportunity to make representations in relation to those issues. Thereafter the Court made its ruling having regard to the principles in the English Court of Appeal decisions in Drury v British Broadcasting Corporation and another [2007] EWCA Civ 497 and Ehsanollah Bayat and others v Lord Michael Cecil and others [2011] EWCA Civ 135.
The issues identified were as follows:
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1. Whether the Applicant had demonstrated that he had taken all reasonable steps to trace the Defendant and to serve the claim form on him.
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2. Whether it was appropriate to make an order extending the validity of the claim form beyond February 28, 2019 (the date of the expiration of the limitation period) if this would deprive the Defendant of a limitation defence.
In response to the issues identified by the Court, Ms. Allison submitted that there was no point in the Process Server revisiting the address since residents of the community stated that they did not know the Defendant. Counsel submitted that in the circumstances, the Applicant had satisfied the requirements of CPR Rule 8.15(4)(a) in that all reasonable steps had been taken to trace the Defendant and to serve the claim form.
Ms. Allison further submitted that the application for the extension should be granted because:
1. the claim form was filed before the expiration of the limitation period, and
2. the application was filed before the claim form expired.
Counsel posited that the Supreme Court Civil Registry failed to list the application for hearing before the claim form expired. Counsel further submitted that the overriding objective of the CPR requires that the Court dispense justice, and that the Claimant would be deprived of justice if the application was not granted.
For the purpose of this application, the relevant portions of CPR Rule 8.15 provide as follows:
“(1) The claimant may apply for an order extending the period within which the claim form may be served .
(2) The period by which the time for serving the claim form is extended may not be longer than 6 months on any one application.
(3) An application under paragraph (1)
(a) must be made within the period
(i) for serving the claim form specified by rule 8.14; or
(ii) of any subsequent extension permitted by the court, and
(b) may be made without notice but must be supported by evidence on affidavit.”
(4) The court may make an order for extension of validity of the claim form only if it is satisfied that
(a) the claimant has taken all reasonable steps
(i) to trace the defendant; and
(ii) to serve the claim form, but has been unable to do so; or
(b) there is some other special reason for extending the period. (My emphasis)
In determining whether to grant an application for an extension of the the validity of the claim form, I must consider whether the Applicant has demonstrated that he has taken “all reasonable steps” to trace the Defendant and to serve the claim form on him, as stipulated by CPR Rule 8.15(4)(a). In determining whether the Applicant has satisfied the test in the rule, I must consider the nature and number of attempts made at service, and the reason proffered for the failure to serve the claim form within the six-month period specified by that rule. The Court must also be guided by the overriding objective and dispense justice to both parties. This process involves the Court giving consideration to the Defendant's right to rely on a limitation defence.
I have found no judgments in this jurisdiction interpreting Rule 8.15(4). I therefore had regard to English cases. The corresponding rule in the English CPR (Rule 7.6) is slightly different from the Jamaican provision in four respects. Firstly, the English rule allows applications to be made after the end of the four-month period within which the claim form may be served ( CPR 7.6(3)). Secondly, the rule does not stipulate a maximum period for an extension. Thirdly, either the court or a claimant may serve the claim form. Finally, the rule has a two-part cumulative test, and CPR 7.6(3)(b) is one threshold condition. Notwithstanding these differences, the condition in CPR 7.6(3)(b) is a similar test to our CPR Rule 8.15(4)(a) in that it refers to the need for a claimant to take “all reasonable steps” to serve a defendant. I am therefore persuaded to apply the...
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