Lyle (Allan) v Vernon Lyle

• Jurisdiction: Jamaica
• Judge: Sinclair-Haynes, J
• Judgment Date: 10 May 2005
• Judgment citation (vLex): [2005] 5 JJC 1001
• Date: 10 May 2005
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

BETWEEN

ALLANLYLE

CLAIMANT

AND

VERNONLYLE

DEFENDANT

CIVIL PROCEDURE - Defence - Striking out

Sinclair-Haynes, J

1 Mr. Allan Lyle (claimant) is the son of 74-year-old Vernon Lyle (defendant) who is presently very ill. His extensive list of illnesses includes Alzheimer's. On September 22, 2004, Mr. Allan Lyle sued his father for the sum of 54,800,000.00 with interest in the sum of $384,000,00. The defendant was served with the proceedings on September 25, 2004. Mrs. Evadney Lyle, the defendant's wife, on November 12, 2004, filed a defence, which was outside the time prescribed by the Civil Procedure Rules ( CPR), 2002.

2 The defendant did not obtain the consent of the claimant to file the defence out of time; nor was the leave of the court sought as required by the CPR. The defence was signed by the defendant's wife who had no locus standi so to do. She was merely armed with a limited Power of Attorney, which did not authorise her to defend the matter.

3 Claimant's claim

4 It is the claimant's claim that in October 1988 whilst he resided in the USA, he remitted the sum of US$100,000,00 to his father to purchase a house for him. Upon his return to Jamaica in October 2003 he discovered that his father did not purchase the house. He demanded the return of his money.

5 On July 6, 2004, Mr. Gordon Brown, the defendant's attorney wrote to the claimant on the defendant's behalf and acknowledged that the sum of US$80,000.00 was owed to the claimant by the defendant. The defendant failed to honour his obligation to pay.

6 The claimant has now applied to the court for the following orders:

• a. summary judgment;

• b. that the defence ought to be struck out or dismissed;

• c. that judgment ought to be entered for the claimant.

7 The applications were made on the following grounds, inter alia:

• i The defendant has no real prospect of defending the claim:

• ii The defence discloses no reasonable grounds for defending the claim. The defendant must prove unequivocally that at the precise moment the debt was acknowledged by the defendant on July 2004 he was a mentally disordered person who was incapable of understanding what he was doing and the claimant was aware of his mental incapacity.

• iii The acknowledgement of the debt on July 6, 2004 was not procured by any undue influence on the claimant because his attorney-at-law, Mr. Gordon Brown, represented the defendant. The defence does not disclose the circumstances under which a plea of non est factum can be successfully upheld.

• iv. The defence was filed and served out of time without the claimant's or the court's consent. It was filed pursuant to a limited Power of Attorney in favour of Evadney Lyle, the defendant's wife, that did not authorise her to defend the suit.

8 I will first consider the ground advanced by the claimant that the defendant's defence was filed in contravention of the CPR and that Mrs. Lyle was not authorised to defend the matter.

9 The Law

10 The CPR Rule 10.3(1) states:

"The general rule is that the period for filing a defence is the period of 42 days after the date of service of the claim form."

11 The defendant's defence was filed outside of the prescribed time.

12 Rule 10.3(5) states:

"The parties may agree to extend the period for filing a defence specified in paragraphs (1) (2) ( 3) or (4)."

13 Rule 10.3 (9) states:

"The defendant may apply for an order extending the time for filing a defence."

14 The defendant did not comply with the requirements of the rules.

15 In determining whether to dismiss the defence on the ground that it was filed in breach of the rules, I must be cognizant of the overriding objective of enabling the court to deal justly with cases. In so doing, some important considerations include ensuring that the case is dealt with expeditiously and fairly and the need to allot resources to other cases (See Rule 1.1).

16 In acceding to the claimant's request, would I be dealing justly, fairly and expeditiously with the matter? On the other hand, should I allow the defendant added time to file his defence, would that amount to the proper allocation of the court's limited resources? In attempting to do justice...