Lynette Butler — Gilpin v Cleveland Resorts Ltd T/A EL Greco Resort

• Jurisdiction: Jamaica
• Judge: D. Fraser J
• Judgment Date: 05 February 2020
• Date: 05 February 2020
• Docket Number: CLAIM NO. 2012HCV04442
• Court: Supreme Court (Jamaica)

[2020] JMSC Civ 14

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2012HCV04442

Between

Lynette Butler — Gilpin

Claimant

and

Cleveland Resorts Limited T/A EL Greco Resort

1 ^st Defendant

and

Vanguard Security Limited

2 ^nd Defendant

Ms. Alexandria Fennell instructed by Nigel Jones and Company for the Claimant.

Christopher Dunkley instructed by Phillipson Partners for the 2 ^nd Defendant.

Whether the 1st and 2nd defendants were joint or concurrent tortfeasors — classification of the defendants as joint or concurrent tortfeasors is ultimately not significant in this case — critical factor in determining whether settlement with 1st defendant bars continuation of the claim against the 2nd defendant is the nature and intendment of the settlement — no evidence to substantiate that settlement was in partial not full satisfaction of claim — basic rule/principle, that settlement extinguishes claim against other tortfeasor, which prevents the injustice of double recovery, is not displaced — 2nd defendant's security guards presence based on contract between the 1st and 2nd defendants which created and delineated their duties — security guards have no general duty to prevent crime over and above that of ordinary private citizens — absence of privity of contract between the claimant and the 2nd defendant — tortious liability in the circumstances of this case cannot exist independently of, or exceed that based on contract — discontinuance against 1st defendant and the absence of privity of contract between the claimant and the 2nd defendant fatal to the claim against the 2nd defendant

IN CHAMBERS

D. Fraser J

Introduction and Background

1 The following are the reasons for the decision of the court given on the 21 ^st day of January 2020.

2 By this claim the claimant alleged that on or about December 4, 2011 whilst she was vacationing at El Greco Resorts she was assaulted and robbed by a man who entered her room by a ruse, alleging that he had come to provide “room service”.

3 In the Further Amended Particulars of Claim filed January 22, 2013, the claimant maintains that she suffered loss and incurred expenses as a result of the defendants' breach of statutory duty, breach of contractual duty and negligence.

4 The 1 ^st defendant filed an amended defence on October 18, 2013 and an Amended Ancillary Claim on October 28, 2013. The 2 ^nd defendant filed a defence to the amended ancillary claim on December 12, 2013. The 2 ^nd defendant not having filed a defence to the Further Amended POC, the claimant obtained judgment in default of appearance by the 2 ^nd defendant.

5 The 2 ^nd defendant applied to set aside the default judgment and the application was heard and refused by Anderson J on February 14, 2014. On March 3, 2017 the 2 ^nd defendant brought proceedings de novo to set aside the default judgment.

6 Pursuant to a settlement between the claimant and the 1 ^st defendant, a joint notice of discontinuance was filed by the claimant and the 1 ^st defendant on July 20, 2017, which indicated that, “the Claimant HEREBY WHOLLY DISCONTINUES the claim against the 1 ^st DEFENDANT and withdraws same.”

7 The first defendant's amended ancillary claim against the 2 ^nd defendant however remained and remains extant before the court.

8 After becoming aware of the filing of the Joint Notice of Discontinuance, on July 28, 2017 the 2 ^nd defendant filed an amended NOACO to set aside the default judgment asserting inter alia that, i) settlement of the claim for damages as distinct from a liquidated sum is treated in law as a compromised substitution of a judgment of a court, fixed at the compromised settlement sum and ii) The settlement and subsequent discontinuance of the claim for unliquidated damages against the 1 ^st defendant extinguished the claim against the 2 ^nd defendant, leaving only the 1 ^st defendant's ancillary claim, itself limited to an indemnity, which remains live before this Honourable Court.

9 On the 9 ^th day of February 2018 Dunbar-Green J set aside the default judgment obtained against the 2 ^nd defendant as of right and ordered that the Defence to Further Amended Claim form filed July 31, 2017 should stand as if filed in time.

10 The 2 ^nd defendant in this Defence asserted that it was contracted by the 1 ^st defendant to provide two static guards; one for the main entrance to manage ingress and egress and the other to provide security for users of the main office. The 2 ^nd defendant therefore denies that either of its two guards failed to perform duties to safeguard the claimant, as it maintains that based on its contract with the 1 ^st defendant and the static positioning of the two guards in the locations previously indicated, the 2 ^nd defendant's guards had no duty to safeguard the claimant.

The First Preliminary Objection

11 The contention that the settlement and subsequent discontinuance of the claim against the 1 ^st defendant had extinguished the claim against the 2 ^nd defendant not having been addressed by Dunbar-Green J, that point was taken before this court on September 23, 2019. An adjournment was granted until the 15 ^th October 2019 to facilitate written submissions on the point as counsel for the claimant was unprepared to respond to the submission.

12 On the 15 ^th October 2019 both counsel were invited to consider and respond to each others' submissions and the matter was further adjourned to the 23 ^rd day of October 2019 for the court's ruling. On October 23, 2019, in a short ruling the court declined to rule on the point, deferring instead to the trial court where the matter was set for hearing on November 4, 2019.

13 The court was unfortunately unable to hear the matter as it was engaged with other cases. However, before the matter was adjourned an additional preliminary point was raised for consideration — whether there was any privity of contract between the claimant and the 2 ^nd defendant on the basis of which the claimant could sue the 2 ^nd defendant for breach of contract?

The hearing of January 9, 2020

14 On January 9, 2020, the claimant now represented by new counsel from the chambers of Nigel Jones, sought leave of the court to have an affidavit of Nigel Jones filed on January 8, 2020 stand. One main purpose of the affidavit was to provide evidence of the claimant's settlement with the 1 ^st defendant to support the assertion that that agreement was not in full and final settlement of the claimant's claim and therefore the claimant was entitled to proceed against the 2 ^nd defendant to recover the balance of her claim.

15 Counsel for the claimant argued that the failure to put forward this evidence previously was an oversight and that the claimant would be prejudice if the matter were to proceed without the evidence being admitted. Counsel further submitted that costs could be awarded to the 2 ^nd defendant if time was required to respond.

16 Counsel for the 2 ^nd defendant strongly objected to the affidavit being allowed to stand. While counsel indicated that the affidavit would not be fatal to his submissions, he would need to prepare to deal with it fulsomely and would require the affiant to attend for cross examination. Further he argued that the matter should not be adjourned as the claimant had been well aware of the issue raised for a considerable length of time. Hence counsel asked the court to draw the inference that a tactical decision had previously been taken not to disclose the contents of the settlement, and it appears that decision had not changed. Counsel also argued that he was unaware of the position of the 1 ^st defendant which might also need to be considered especially as there was an existing ancillary claim brought by the 1 ^st defendant against the 2 ^nd defendant.

17 I ruled against allowing the affidavit to be used and ordered that the matter proceed. The basis of that ruling was the overriding objective to deal with cases justly. The following factors were taken into consideration:

• i) The claimant had been aware from at least 2017 of the 1 ^st preliminary objection;

• ii) The matter had previously been considered and the point deferred for determination at trial;

• iii) The matter did not proceed on the trial date as it was not being reached;

• iv) Since the trial date the claimant had not sought to file the affidavit until the day before the hearing;

• v) While the court is aware that present counsel was only recently assigned to the matter, the principle of collective responsibility applies, as the same firm has been representing the claimant from the inception of the proceedings; and

• vi) It would be prejudicial to the 2 ^nd defendant and to other cases before the courts that require judicial resources, if against the background outlined, the matter was further adjourned.

The First Preliminary Objection

The Submissions

Counsel for the 2 ^nd defendant

18 Counsel for the 2 ^nd defendant submitted that the settlement of a claim for unliquidated damages must, as a matter of law, be treated as being in substitution for a judgment of the court, fixed instead by a compromised settlement sum paid by the 1 ^st defendant.

19 Counsel further advanced that the claimant's compromise of her claim for unliquidated damages and the subsequent discontinuance against the 1 ^st Defendant had the legal consequence of extinguishing her claim against the 2 ^nd Defendant as concurrent tortfeasor.

20 The position of the 2 ^nd defendant was therefore that the claimant was estopped from resiling from her compromise settlement with and subsequent joint discontinuance filed by her and the 1 ^st defendant. Counsel contended that as a matter of law, the principle of finality demands that there be an end to this litigation between the claimant and the 2 ^nd defendant.

21 Counsel relied on the case of Jameson and another (executors of Jameson (deceased)) v Central Electricity Generating Board (Babcock...