Kareen Daley v Jasmine Chin
| Jurisdiction | Jamaica |
| Judge | Staple J (Ag) |
| Judgment Date | 25 October 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2016 HCV 00768 |
[2023] JMSC Civ. 207
CLAIM NO. 2016 HCV 00768
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
Civil Practice & Procedure — Application for Relief from Sanction — Whether Application Made Promptly — Whether Issues of Instructions and Retainer Between Counsel and Client is to be considered as part of the question of the promptness of an Application for Relief from Sanction — Whether or not Counsel's Failure to Comply with Case Management Orders Due to Issues with their Client Shows that the Failure to Comply was Unintentional — Whether Issues of Instruction and Retainer Between Counsel and Client is a Good Explanation for Non-Compliance.
No Counsel for the Claimant Appeared
Ms. Lesley Ann Stewart ins by Mayhew Law for the Defendant/Applicant
The Claimant's claim is in a world of peril and her Attorneys-at-Law have launched a desperate bid to save the claim from oblivion.
The Claim was filed on the 24 th February 2016 and is founded in Negligence arising from an incident in which the Claimant is alleged to have fallen from the motor vehicle owned by the Defendant but operated by her servant and/or agent due to the alleged negligence of the said servant and/or agent of the Defendant.
The Claim was duly served and Defended by the Defence filed on the 7 th June 2016. Two years of inactivity passed until the Claimant applied to Dispense with Mediation on the 12 th September 2018. The matter was put before the Court on the 27 th January 2020 and Master Hart-Hines (as she then was) refused the application and ordered the parties to proceed to mediation and complete same by the 8 th May 2020.
There is no record of that order being complied with by the parties and no Report of Mediator was ever filed. Eventually, thanks to the initiative of my sister Judge Orr J (Ag), the matter was revived and placed before the Court on the 26 th October 2022.
On that date, it was eventually revealed that the mediation had in fact taken place and Orr J (Ag) made Case Management Conference Orders. Among the orders made was that the Mediator's Report was to be filed by November 11, 2022 by the Claimant.
The Pre-Trial Review was set down for the 16 th March 2023. In the event, neither party fully complied with the Case Management Conference Orders and at the Pre-Trial Review, on March 16, 2023, it was adjourned to the 30 th May 2023. The Defendant had filed an application for Relief from Sanction on the 10 th March 2023 and this application was deferred to the 30 th May 2023.
The Claimant did not file an application for Relief from Sanction until March 23, 2023. On the 30 th May 2023, the Court granted the Defendant's application for relief from sanction, but adjourned the Claimant's Application. The Claimant was ordered to file a supplemental affidavit in Support on or before the 16 th June 2023. This was not done.
When the matter came before the Court for adjourned Pre-Trial Review on the 11 th October 2023, this Court granted the Claimant an extension of time to file the said Further Affidavit and adjourned the matter to the 25 th October 2023.
The Claimant did indeed file the Further Affidavit as ordered on the 13 th October 2023. Counsel for the Defendant also confirmed that the costs order was complied with.
To err is human. In recognition of this the drafters of the Civil Procedure Rules copied from the English Civil Procedure Rules a codification of a mechanism to allow for the divine forgiveness for error – the relief from sanctions imposed by the Rules, Orders of the Court or Practice Directions when we run afoul of those rules, orders or practice directions.
Rule 26.8 sets out the mechanism for obtaining the Court's relief. The most critical aspect of this rule, for the purposes of this ruling, is the requirement under Rule 26.8(1) that applications for relief from sanctions must be made promptly (emphasis mine) and supported by affidavit evidence. If this initial threshold is not met, the Court is not required to and really should not proceed to examine the other conditions that are to be met for it to exercise its discretion to grant relief.
That this is so, was long ago confirmed in the case of Morris Astley v AG 1 when Morrison JA (as he then was) stated that, “…rule 26.8(1) provides that such an application must be made (a) promptly and (b) supported by affidavit. Once these preconditions are met (emphasis mine) rule 26.8(2) permits the court to grant relief from sanctions imposed for failure to comply with any rule, order or direction…’
The decisions of H.B. Ramsay & Associates Limited et al v Jamaica Redevelopment Foundation et al 2, and Sykes J (as he then was) in the case of Quintin Sullivan v Ricks Café Holdings Inc T/A Ricks Café (No. 2) 3 give
The Court also examined the more recent decisions of Meeks v Meeks 4 and Deputy Supt. John Morris et al v AG of Jamaica et al 5. Again, at paragraph 67 of the Judgment of the Court in the John Morris appeal, P. Williams JA had this to say,
“ It is accepted that what amounts to promptness significantly depends upon the circumstances of the particular case (see Meeks v Meeks). In this case, I find that the question of promptness was relative to the time the breach had taken place with the consequential sanction taking effect”
So while there may be some flexibility in the approach, the time from which one counts will generally be from the time the breach occurs. There may be cases when the time counts from the date the breach came to the attention of the offending party. But I find that in this case, the time would run from the date of breach.
I am prepared to apply this time in this case as there was clear knowledge on the part of Counsel for the Claimant that breaches had consequences and one should seek time to remedy them. This is evident from their application filed on the 23 rd March 2023.
It is my finding that time would start to run from the date of breach of the Case Management Orders. In the case of the List of Documents, time would have started
The context to this is a situation where the parties were already far behind the time for the disposition of the matter and there had been considerable delays in the prosecution of the Claim. But for the Court's own initiative in bringing the matter back, it would have likely continued to languish. So both parties were already under a tremendous amount of time pressure to ready themselves for trial. That much is also evident from the short timelines imposed by the learned Judge at case management.
In an Affidavit by Mr. Nicholas Ranger sworn on the 28 th February 2023 and filed on the 23 rd March 2023, in support of the Application initially filed on the 23 rd March 2023, he deponed as follows (among other things):
4. Unfortunately, those said orders were not complied with in time to meet the deadline ordered by the Court and were complied with on the 23 rd March 2023 due to a clerical/administrative oversight.
5. The Applicant has a good explanation for his failure to comply with the said orders. In that the member of staff tasked with the responsibility of ensuring the orders were complied with, failed to act within the Court's deadline. However, since then the relevant documents have been filed...
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