Keating (Michael) v Prince Roy Williams

• Jurisdiction: Jamaica
• Judgment Date: 11 October 2007
• Judgment citation (vLex): [2007] 10 JJC 1102
• Date: 11 October 2007
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

MICHAEL KEATING

CLAIMANT

AND

PRINCE ROY WILLIAMS

DEFENDANT

Practice and Procedure - Order for substituted service on insurer of defendant's motor vehicle - Claim form invalid at the time of order -Whether order properly made - Application to set aside

CIVIL PROCEDURE - Order for substituted service - Application to set aside

1 The Insurance Company of the West Indies is not a named party to these proceedings. It has however, become an interested party because of an ex parte order made by this court. That order allowed Mr. Michael Keating to serve ICWI with the Claim Form herein, by way of substituted service on the Defendant Mr. Prince Roy Williams. It has now applied to set aside that order, claiming that it is not in contact with Mr. Williams, does not know of his whereabouts and did not insure him while he drove the vehicle which is said to have caused Mr. Keating's loss. Miss Wignall appearing for ICWI has also submitted that the order for the substituted service is improper, as it was made when the Claim Form had expired and was invalid.

2 There are some factual issues and a legal procedural point to be considered in dealing with this application. The legal issue is whether, after the period for service of a Claim Form has expired, the court may properly entertain applications for extensions of the time for service or applications for substituted service of that Claim Form. No issue was taken with regard to the standing of ICWI in making the application.

3 Factual Background

4 The case has its genesis in a motor vehicle collision which occurred on December 11, 2001. The vehicles involved were a motor car owned and driven by Mr. Keating and another, driven by Mr. Williams. There is some controversy as to who was the owner of the latter vehicle on that date. Mr. Keating's attorneys-at-law were originally of the view that it was Mr. Williams as they wrote to ICWI concerning the matter in that vein. However when ICWI replied in May 2003, it stated, as part of the heading of its letter; "Our Insured - Estate Lloyd Hodelyn/Princeroy Williams".

5 The claim form was filed on November 18, 2003. It not having been served, an application to extend the time for service was filed on June 8, 2004. The application was for an extension for six months from May 18, 2004. The application was heard and granted on September 28, 2004. It was then that the order for substituted service on ICWI was made. Again, the claim form was not served and a second application for extension of time was filed. This was on November 30, 2004 and it sought the extension as of November 18, 2004. This second application was heard and granted on April 7, 2005. The claim form was served on ICWI later that very day.

6 Ms. Gretchen Garriques of ICWI, at paragraphs 8 and 9 of her affidavit in support, states that ICWI insured Estate Lloyd Hodelyn as the owner of the motor car. She says that up to February 18, 2003, ICWI was of the view that Mr. Williams was merely the driver of the vehicle at the relevant time, but on that date ICWI was notified that the motor car had been sold to Mr. Williams and that he was, by then, residing outside of Jamaica. In the circumstances, says Ms. Garriques, ICWI no longer insures the vehicle. She says ICWI has no contact with, or responsibility for, Mr. Williams in respect of the vehicle. No documentation was tendered to substantiate any transfer of ownership of the motor car. Ms. Garriques' information concerning Mr. Williams was all hearsay and in part, hearsay upon hearsay. I find that it is insufficient by itself, to cause this court to set aside its order.

7 The Law

8 When the Civil Procedure Rules 2002 (CPR) were brought into effect on January 1, 2003, rule 8.14 (1) stated as follows:

"The general rule is that a claim form must be served within 6...