Marsha Salmon v Neville Scott

JurisdictionJamaica
JudgeRattray, J.
Judgment Date11 February 2019
Neutral Citation[2019] JMSC Civ 18
CourtSupreme Court (Jamaica)
Docket NumberCLAIM NO. 2016 HCV 01577
Date11 February 2019

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2016 HCV 01577

BETWEEN:
Marsha Salmon
Claimant
and
Neville Scott
Defendant
IN CHAMBERS

Mr. Demetrie Adams instructed by Green Morgan Stephenson for the Claimant

Mr. Samuel Smith for the Defendant

Civil Practice and Procedure - Oral application to strike out Claimant's Statement of Case for breach of Order of the Court — Rule 26.3 (1) (a) of the Civil Procedure Rules — The Property (Rights of Spouses) Act — Extension of time not sought or granted before the claim was filed — Validity of the claim.

Cor: Rattray, J.

1

The matter before this Court is the adjourned first hearing of the Claimant's Fixed Date Claim Form originally filed on the 19 th April, 2016, claiming inter alia, damages, division of property and businesses. It came before Lawrence-Beswick J on the 23 rd June, 2016, where she granted leave to the Claimant to file and serve an Amended Fixed Date Claim Form with Supporting Affidavit within thirty (30) days from the date of her Orders, that is, by the 23 rd July, 2016. Permission was also granted to the Defendant to file and serve Affidavits in Response within forty-two (42) days of service of the Supporting Affidavit. In addition, costs of the day were awarded to the Defendant to be agreed or taxed.

2

On the 11 th August, 2016, nineteen (19) days outside the time specified by the Order of the Court, the Claimant filed an Amended Fixed Date Claim Form seeking inter alia, “a Declaration that for the relevant periods the Claimant was the spouse of the Defendant” together with an Amended Affidavit of Marsha Salmon in Support of Fixed Date Claim Form. The Defendant to date however, has not filed any Affidavit in Response.

3

Counsel Mr. Smith in an effort to assist the Court started to give a brief history of the matter. However, Counsel's efforts quickly turned into an oral application to strike out the Claimant's Statement of Case for her failure to comply with the Orders of Lawrence-Beswick J, within the time stipulated.

4

Mr. Smith submitted that the Claimant has shown disregard for the Orders of the Court, by not filing her Amended Fixed Date Claim Form within the time stipulated by the Court. The Claimant he contended, filed her Amended Fixed Date Claim Form about a year after the Order was made, and this he argued, greatly prejudiced his client who has not been able to respond to the Claimant's Affidavit evidence. He further submitted that the Court should exercise its discretion to strike out the Claimant's Statement of Case pursuant to Rule 26.3 (1) (a) of the Civil Procedure Rules (CPR), which reads: -

“…the court may strike out a statement of case or part of a statement of case if it appears to the court-

(a) that there has been a failure to comply with a rule or practice direction or with an order or direction given by the court in the proceedings.”

5

In addition, he argued that the Fixed Date Claim Form does not conform with the provisions of Rule 8.8 (c) of the CPR, which provides that: -

“Where the claimant uses form 3, the claim form must state-

(c) where the claim is being made under an enactment, what that enactment is”

6

Further, Mr. Smith argued that the fundamental reason why the Claimant's Statement of Case should be struck out, is the fact that the Claimant has not sought an extension of time to file her Fixed Date Claim Form, pursuant to section 13(2) of the Property (Rights of Spouses) Act (PROSA). That section indicates that: -

“An application under subsection (1) (a), (b) or (c) shall be made within twelve months of the dissolution of a marriage, termination of cohabitation, annulment of marriage, or separation or such longer period as the Court may allow after hearing the applicant.”

7

He argued that the parties had ceased cohabitation since 2014, and the claim was brought in 2016, outside the one (1) year limitation period, without an extension of time being applied for and granted by the Court. He further went on to submit that in the circumstances, an extension of time was a precursor to the filing of the claim, and if such an extension was not granted before the claim was filed, it ought to be struck out. In support of this contention he relied on the case of Deidre Anne Hart Chang v Leslie Chang (unreported), Supreme Court, Jamaica, Claim No. 2010 HCV 03675, judgment delivered on the 22nd November 2011. It should be noted however, that a copy of this authority was not provided to either the Court or Counsel for the Claimant.

8

Counsel Mr. Smith also argued that there was sufficient time within which the Claimant could have sought an extension of time before the claim was filed. Furthermore, he maintained that there is ample authority to suggest that an extension of time could have been sought as a relief in the Fixed Date Claim Form.

9

Mr. Adams in reply indicated that he was not in a position to respond to Mr. Smith's submissions, as he was holding for the Attorney-at-Law who had conduct of the matter. In light of that, he was not in a position to respond to such an application. He argued that an application of this nature ought properly to have been made in writing and not orally, as such an application was tantamount to an ambush. He also argued that the Defendant's Counsel was well aware that the Claimant had not complied with the Orders of Lawrence-Beswick J within the stipulated time, and yet, Mr. Smith took no steps in that regard to raise any complaint.

10

Mr. Adams conceded that the claim was brought outside the one (1) year period pursuant to section 13(2) of PROSA and that his client ought properly to have sought an extension of time before filing her claim.

11

There is no dispute that the Court has the power pursuant to Rule 26.3 (1) (a) of the CPR to strike out a party's Statement of Case or a part of the Statement of Case for failing to comply with a Rule, Practice Direction or an Order of the Court. However, the striking...

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1 cases
  • Oral Williams v Diamond Paints MFG Company Ltd
    • Jamaica
    • Supreme Court (Jamaica)
    • 13 de julho de 2022
    ...cases in coming to my decision: I have considered all the cases relied on in coming to my decision. a. Marsha Salmon v Neville Scott [2019] JMSC Civ 18 b. Kerry-Ann Barnaby-Stoddart v Renville Barker [2019] JMSC Civ 118 c. Dorothy Vendryes v Richard Keane and anor [2011] JMCA Civ 15; and d.......

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