John Ross Ricketts v David Williams and Another

• Jurisdiction: Jamaica
• Judge: Bertram-Linton
• Judgment Date: 23 October 2013
• Neutral Citation: [2013] JMSC Civ 152
• Docket Number: CLAIM NO. 2011 HCV 00511
• Court: Supreme Court (Jamaica)
• Date: 23 October 2013

[2013] JMSC Civ. 152

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV 00511

Between

John Ross Ricketts

Claimant

and

David Williams

1st Defendant

and

Karlos Bartley

2nd Defendant

Seyon Hanson for second defendant/applicant

Debayo Adedipe instructed by Keith Smith & Co for claimant/respondent

APPLICATION TO EXTEND TIME TO FILE DEFENCE — DEFECT ON THE FACE OF DOCUMENTS SERVED — PRINCIPLES TO BE APPLIED WHETHER DEFENCE ALLOWED SHOULD BE LIMITED TO ISSUES DISPUTE

Bertram-Linton

MASTER-IN-CHAMBERS (AG.)

1 It is Karlos Bartley the 2 ^nd defendant who seeks to move the court favourably to his position.

2 He complains that when he was served with the documents in January 2012 they were defective on their face and so he was mislead as to their validity. He exhibits the document served and it shows the second page of the claim form in the section headed ‘NOTICE TO THE DEFENDANT’ has in typed print.

‘This claim form has no validity if it is not served within six (6) months of the date below unless it is accompanied by an Order extending the same. See Rule 8.14 (1)’

The word “six” is then crossed out and the word “twelve” written over it. He sought advice from his attorney who attempted to speak with the claimant's attorney on the issue but was unsuccessful in doing so.

3 The attorney then called the Registry of the Supreme Court and was advised that no handwritten changes could be made to court documents in the way it was done unless it had been so ordered by a court. Both himself and his previous attorney were then of the settled view that the documents served were invalid having been issued in February 2011 and took no further steps in relation to them. The attorney apparently did not check Rule 8.14 (1) as the document advised, which clearly reads,

‘8.14 (1) The general Rule is that a claim form must be served within 12 months after the date when the claim was issued or the claim form ceases to be valid.’

4 Sometime in October 2012 the claimant's attorney made direct contact with the 2 ^nd defendant. It seems that as a result of their exchange, the 2 ^nd defendant sought the advice of Mr. Hanson who makes this application for his client to be allowed to file his defence albeit belatedly based on the misunderstanding and confusion which he says was brought about by the misleading documents.

5 Counsel Mr. Hanson though is not relying on this ground only but says that there is good and sufficient reason to swing wide the doors of justice as his client has a reasonable prospect of successfully defending the claim brought against him and attaches a draft defence in support of this.

6 He posits that having realized that the claim form was valid for 12 months the 2 ^nd defendant moved with alacrity to file this application, which also took into account that there was no application before the court for default judgment to be entered against him, as was the case with the 1 ^st defendant.

THE DRAFT DEFENCE

7 One of the major limbs of the applicants' case is the prospect of success of their defence. The applicant's counsel, Mr. Hanson, says he was not the one responsible for the accident and if he had any level of responsibility, the claimant contributed in a significant way with the events as they unfolded and which may have resulted in any injuries he the claimant sustained.

8 Counsel Mr. Hanson commends to the court principles as laid down in Rv KERRON MATTHEWS and PREMIUM INVESTMENTS v JAMAICA REDEVELOPMENT FOUNDATION

THE RESPONDENT'S CASE

9 Mr. Adedipe stoutly opposed the application both on the ground that the proposed defence was weak and that the non-compliance with the time limitation for filing the defence was supported by a spurious excuse at best. He highlights:

• a) The lack of merit in the defence which at best he suggests if the court is swayed by it, should account for some limiting of the basis on which the defence should be allowed in, that is, based on contributory negligence.

• b) The delay was inexcusable as the correction to the document as served is what the law says “twelve months” and any reasonable inspection of the law could have shown that it was the correct position.

He took issue with the fact that the enquiry to the Supreme Court was not supported by an affidavit and as such was an unreliable bit of information.

10 He relied on the principles laid down in Jamaican Court of Appeal case of PHILLIP HAMILTON EXECUTOR in the ESTATE OF ARTHUR ROY HUTCHINSON, DECEASED, TESTATE v FREDERICK FLEMMINGS & GERTRUDE FLEMMINGS SCCA No. 53/2009 delivered 18 ^th May 2010 where the court enunciated the principles to be applied in a determination as to where an extension of time to file a defence should be granted.

THE LAW

11 CPR Rules 10.2(1) and 10.3 (1) says that a defendant who desires to defend all or part of a claim is required to file a defence. The general rule is that this must be done within 42 days of service of the claim.

12 Pursuant to Rule...