Judith Smith v Advantage General Insurance Company Ltd
| Jurisdiction | Jamaica |
| Judge | Thompson-James, J. |
| Judgment Date | 14 October 2016 |
| Neutral Citation | [2016] JMSC Civ 171 |
| Docket Number | CLAIM NO. 2011 HCV04145 |
| Court | Supreme Court (Jamaica) |
| Date | 14 October 2016 |
[2016] JMSC Civ 171
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Thompson-James, J.
CLAIM NO. 2011 HCV04145
Leonard Green and Sylvan Edwards instructed by Chen, Green & Company for the Claimant.
Suzette Campbell instructed by Campbell & Campbell for the Defendant.
Motor vehicle accident — Motor vehicle insurance — Judgment in default entered in favour of Claimant against owner of motor vehicle as well as driver — Court's refusal of insurer's application for declaration to avoid policy of insurance — Whether insured should be allowed to employ same defence as used in the application for declaration — Whether issue estoppel or res judicata arises — Whether insurer should be held liable to indemnify Claimant in respect of judgment debt — Motor Vehicles Insurance (Third Party Risks) Act, Section 18(1)
The Claimant, Judith Smith was involved in a motor vehicle accident February 1, 2005. She suffered personal injuries and contends that Heike O'Brian was the driver of the motor vehicle at the material time. Consequently, she filed Claim No. 2007 HCV 02971 to recover damages against Stetson and Heike O'Brian. The 1 st Defendant being the owner of the motor vehicle involved and the husband of the 2 nd Defendant. A Notice of Proceedings filed May 17, 2007 was served on United General Insurance Company (as it was then), now the Defendant in the case at bar.
October 20, 2010 damages was assessed in the sum of $8,021,825.00 (eight million, twenty-one thousand, eight hundred and twenty-five dollars). This judgment remains unsatisfied. The Claimant now seeks to be indemnified pursuant to the Motor Vehicles Insurance (Third Party Risks) Act (MVIA) by the Defendant company.
A preliminary issue arises whereby the Claimant seeks to have admitted into evidence a Fixed Date Claim Form and supporting Affidavit in Claim No. 2006 HCV 01534 filed April 27, 2006 wherein United General Insurance Company (UGI) sought a declaratory order that it was under no obligation to indemnify its insured, Stetson O'Brian or satisfy any judgment obtained in relation to the said accident.
July 13, 2007, Brooks J, as he then was refused the application (Exh. 7).
The Claimant here raises the issue of whether this Claim at bar amounts to a re-litigation of the issue that was adjudicated on in the 2006 case, since the Defendant had advanced the same reason for avoiding the relevant insurance policy, as his defence in this Claim and whether it amounts to an abuse of process.
It can therefore be inferred that this is the reason admission of the Fixed Date Claim and supporting Affidavit is being sought.
The Defendant objects to the admission of the documents on the grounds that;
The cumulative effect of the Evidence Act and the CPR is that Fixed Date Claim Form and the Affidavit cannot be admitted into evidence due to failure to disclose the documents or to provide notice of intention to rely on them despite having ample opportunity to do so.
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(i) the document was not attached to the Claimant's Claim Form or Particulars of Claim as required by CPR 8.9(3).
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(ii) The Claimant has failed to comply with the provisions of Sec 31 E (1) of the Evidence Act in attempting to tender the documents in evidence;
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(iii) The Claimant is in breach of the order made at the case management conference for disclosure of documents and pursuant to CPR 28.14 (1) is barred from relying on or putting the document in evidence.
Further, these documents are not sworn to or signed by Miss Ruthann Morrison and, therefore, must be deemed hearsay for the sole purpose of proving the truth of their contents. Further, no reason valid or otherwise has been put forward for failure to notify of the intention to tender them into evidence and has thereby robbed the Defendant of the opportunity to effectively examine the document and prepare its case.
The Defendant relies on the cases of Debbie Powell v Bulk Liquid Carriers Ltd et al SSCCA 52/2010, Rule 28.14 (1) of the CPR; Tombstone Ltd v Raja & Anor [2008] EWCA Civ 1444.
The Claimant in its written submissions, though not explicitly stating so, appears to be saying that it did not disclose because it was not aware of the previous action. In that vein, the Claimant asserts that the Defendant has demonstrated a clear intention not to be forthright in their dealings in this matter, particularly that the Defendant failed to disclose to the Claimant that they had filed an application against Stetson O'Brian and Heike O'Brian seeking a declaration that there was a policy breach even though they were served with the Notice of Proceedings May 17, 2007 in the claim between the Claimant and the insured and his agent. The service of the notice was acknowledged by the Defendant. The Claimant relies on the case of Lloyd Heman v Advantage General Insurance Limited Claim No. 2010HCV00456 for the proposition that the insurer has a duty to be upright and forthright and the court should not countenance conduct on the part of the insurers that is not forthright and upright. In that case, Sinclair-Haynes J chided the conduct of the Defendant, in that it did not inform the Defendant that it intended to apply to the court for a declaration although the Defendant was aware that the Claimant had made a claim against them.
In response to the Defendant's objections to the admissibility of the documents, the Claimant submits that, pursuant to CPR 3.9(4), since the Fixed Date and supporting Affidavit bear the seal and stamp of the court both documents are admissible in evidence without more. For this, the Claimant relies on an extract from Blackstone's Civil Practice, which at paragraph 47 reads:
“ Every document purporting to be sealed or stamped with the seal or stamp of the Senior Courts shall be received in evidence without further proof…”
In relation to the issue of hearsay, the Claimant asserts that the Fixed Date Claim Form and the Affidavit are the Defendant's own documents so these are not hearsay but stand as proof of the acts of the Defendant. Further, the Defendant cannot seek protection on the ground of prejudice by their own documents that are under their control.
In relation to the disclosure issue, it is asserted that since disclosure is the formal process by which parties give each other copies of the documents in their control, there can be no question of disclosure regarding a court document filed by the Defendant since that document would be in the control of the Defendant.
There is no duty on the Claimant to disclose a court document filed in the Supreme Court by the party claiming that they might be prejudiced by a failure to disclose their own document to them.
Conversely, the Claimant posits that the court should find that the Defendant had a duty to disclose the relevant documents as a part of standard disclosure ordered at Case Management Conference (CMC). However, even if the court should find that the documents ought to have been disclosed by the Claimant who is seeking to rely on them, which is not agreed, the parties have a duty to disclose continuously until the proceedings have concluded ( CPR 28.13).
The matter not having concluded, and since the Defendant has not disclosed the said documents to the Claimant through standard disclosure, the Claimant has prepared a supplemental List of Documents dated, filed and served on the Defendant on the 16 th February 2015, which discloses, inter-alia, certified copies of the relevant documents, both filed in the Supreme Court on April 27 th 2006. Furthermore, it is submitted, it is trite law that the court can rely on its own document, provided that a sealed copy is presented, not to speak to the truth of what is contained in the document but of its existence and its contents.
requires that the Claim Form or Particulars of Claim must identify or annex a copy of any document which the Claimant considers is necessary to his or her case. This provision is listed under the heading ‘Claimant's duty to set out case’. However, under the next heading ‘consequences of not setting out case’, at 8.9A, it is stated that the Claimant may not rely on any allegation or factual argument which is not set out in the particulars of claim, but which could have been set out there, unless the court gives permission. What it does not say is that a failure to include the documents mentioned at 8.9(3) should result in an inability on the part of that party to rely on them. In my view, a proper reading of these provisions lead to the clear conclusion that only the failure to at all indicate an intention to rely on a particular document could prevent the party from being able to rely on it. Indeed, 8.9(3), in stating what it means to ‘set out’ case, requires that the Claimant “identify or annex a copy of any document…” [emphasis mine].
It is my view that since the Claimant did in fact raise the issue of the Fixed Date Claim Form and Affidavit filed in the 2006 matter in its Particulars of Claim filed June 27, 2011, she is not precluded from relying on them, as the Defendant contends, on the basis of these provisions.
provides that a party who fails to give disclosure by the date ordered or to permit the inspection may not rely on or produce any document not so disclosed or made available for inspection at trial.
However, it is to be noted that this provision would only apply where a duty to disclose actually arises in respect of a document. CPR 28.2(1) provides that a party's duty to disclose documents is limited to documents which are or have been in...
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